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Dunn v. Nextel South Corporation

United States District Court, M.D. Louisiana
Jan 8, 2002
207 F. Supp. 2d 523 (M.D. La. 2002)

Summary

In Dunn v. Nextel South Corporation, 207 F. Supp.2d 523 (M.D.La.) (Parker, J.), the court found that plaintiff's failure to comply with Section 303 would result in a dismissal without prejudice.

Summary of this case from Parquet v. Universal Health Services, Inc.

Opinion

Civil Action No: 01-691-A

January 8, 2002

Duke Ellington Tilley, Jr., Baton Rouge, La, for Plaintiffs

Phyllis Guin Cancienne, Locke, Purnell, Rain Harrell, New Orleans, La, for Defendants


RULING ON MOTION TO DISMISS


This matter is before the court on a motion by the defendant, Nextel South Corporation, d/b/a Nextel Communications, to dismiss (doc. 5). The plaintiff did not file an opposition to the defendant's motion. Jurisdiction is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332 (a). There is no need for an oral argument.

I. Law Discussion

Defendant points out in brief that under La. R.S. 23:303(C), a "plaintiff who believes he or she has been discriminated against, and who intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days before initiating court action . . . and both parties shall make a good faith effort to resolve the dispute prior to initiating court action." The plaintiff alleges that she was discriminated against, but has seemingly failed to submit the "written notice of this fact" to the defendant. Additionally, the plaintiff has made no showing that the parties attempted to "make a good faith effort to resolve [this] dispute prior to initiating [this] court action."

Defendant alleges that plaintiff has not complied with the procedural requirements of section 303(C). An examination of plaintiffs original state court petition discloses no allegation that the prerequisite was met prior to filing suit and no copy of any written notice to defendant is attached to the petition.

In the face of the specific issues raised by defendant and served upon plaintiff's counsel, plaintiff has elected to remain silent. The court accordingly concludes that it must be correct the plaintiff failed to comply with La. Rev. Stat. 23:303(A) prior to filing suit. Although defendant suggests that the action should be dismissed with prejudice, the court concludes that such a procedural failure should not result in dismissal with prejudice. There is no adjudication upon the merits and in the court's view, defendant's motion to dismiss should be treated as the functional equivalent of a Louisiana exception of prematurity, the sustaining of which produces non-suit or dismissal without prejudice.

The motion to dismiss on behalf of defendant (doc. 5) is hereby GRANTED and this action shall be dismissed WITHOUT PREJUDICE.


Summaries of

Dunn v. Nextel South Corporation

United States District Court, M.D. Louisiana
Jan 8, 2002
207 F. Supp. 2d 523 (M.D. La. 2002)

In Dunn v. Nextel South Corporation, 207 F. Supp.2d 523 (M.D.La.) (Parker, J.), the court found that plaintiff's failure to comply with Section 303 would result in a dismissal without prejudice.

Summary of this case from Parquet v. Universal Health Services, Inc.

dismissing plaintiff's employment discrimination complaint without prejudice for failure to allege compliance with Section 23:303(C)

Summary of this case from Miguel v. Geico Gen. Ins. Co.

dismissing plaintiff's employment discrimination complaint without prejudice for failure to allege compliance with Section 23:303(C)

Summary of this case from Williams v. Andignac
Case details for

Dunn v. Nextel South Corporation

Case Details

Full title:CORALEEN B. DUNN v. NEXTEL SOUTH CORPORATION d/b/a NEXTEL COMMUNICATIONS

Court:United States District Court, M.D. Louisiana

Date published: Jan 8, 2002

Citations

207 F. Supp. 2d 523 (M.D. La. 2002)

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