Obienu v. Algiers Charter School Association, Inc., et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KESIENA DENNIS OBIENU 	CIVIL ACTION
VERSUS 	NO. 25-417
ALGIERS CHARTER SCHOOL 	SECTION: D(3)
ASSOCIATION, INC., ET AL.
ORDER AND REASONS
Before the Court is a Rule 12(b)(6) Partial Motion to Dismiss Plaintiff’s Second
Amended and Supplemental Complaint, Petition for Damages, and Jury Demand
filed by Defendant Algiers Charter School Association, Inc.1 Defendant Kesiena
Dennis Obienu has filed a Response in Opposition.2 After careful consideration of the
parties’ memoranda, the record, and the applicable law, the Court GRANTS in part
and DENIES in part the Motion.
I. 	FACTUAL AND PROCEDURAL BACKGROUND3
This case arises out of employment negotiations between Plaintiff Kesiena
Dennis Obienu (“Obienu”) and Defendant Algiers Charter School Association, Inc.
(“ACSA”). In July 2024 ACSA offered Obienu the position of Dean of Culture at
Martin Behrman Middle School, a charter school that ACSA operates.4 Obienu
accepted the position the same day and two days later executed a valid contract of
employment with ACSA.5 Thereafter, Obienu sent ACSA a copy of his military orders
1 R. Doc. 39.
2 R. Doc. 40.
3 Unless otherwise noted, the factual background is drawn from the Plaintiff’s Second Amended
Complaint. See R. Doc. 37.
4 R. Doc. 37 at ¶ 27.
5 Id. at ¶¶ 28-29.
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and obligations as a reservist chaplain for the United States Army for the year 2024.6
Obienu claims that ACSA contacted Obienu on July 19, 2024 and informed him that
ACSA was withdrawing its offer because ACSA preferred someone with more
availability for the position.7 Obienu also claims that he notified ACSA of his military
obligation prior to entering into the employment contract with ACSA.8
On January 3, 2025, Plaintiff Kesiena Dennis Obienu filed a Petition for
Damages against Defendants Algiers Charter School Association, Inc. and Liberty
Mutual in Civil District Court for the Parish of Orleans, alleging discrimination based
upon Plaintiff’s military status in violation of the Discrimination in Employment Act,
the Uniformed Services Employment and Reemployment Rights Act, and the Military
Service Relief Act.9 Defendants ACSA and Liberty Mutual removed the case to this
Court on February 28, 2025, invoking this Court’s jurisdiction under 28 U.S.C.
§1331.10
After receiving leave, Plaintiff filed a Comprehensive Amended Complaint,
adding a claim under Title VII of the Civil Rights Act of 1964 for discrimination on
the basis of religious belief.11 Defendant then filed a motion to dismiss for failure to
state a claim,12 which was subsequently denied without prejudice as moot by
Plaintiff’s Second Amended Complaint.13 The Second Amended Complaint adds
6 Id., at ¶ 30, 33; R. Doc. 3-2 at p. 3.
7 R. Doc. 37 at ¶ 31.
8 Id. at ¶ 33.
9 R. Doc. 3-2.
10 R. Doc. 3. Liberty Mutual was terminated as a party on June 25, 2025. See R. Docs. 17, 23, and 25.
11 R. Doc. 25.
12 R. Doc. 29.
13 R. Doc. 37.
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claims for race-based discrimination under 42 U.S.C. §1981, and state law claims of
libel and slander, civil conspiracy, negligence, and other tortious conduct.14
In response to the Second Amended Complaint, Defendant Algiers Charter
School Association, Inc., filed the instant Partial Motion to Dismiss for Failure to
State a Claim.15 Defendant asks this Court to dismiss Plaintiff’s claims under Title
VII and the Louisiana Employment Discrimination Law (“LEDL”) arguing that
Plaintiff’s Complaint contains merely subjective belief, which is not enough to
establish a claim under Title VII or the LEDL. Additionally, Defendant argues that
the Complaint does not plead facts sufficient to establish a claim for race- or ethnicity-
based discrimination under 42 U.S.C. §1981.16 Defendant also contends Plaintiff’s
claim under the Louisiana Human Rights Act (“LHRA”) should be dismissed because
the Louisiana Employment Discrimination Law replaced and extinguished the
LHRA, making the LEDL the exclusive remedy under state law for acts of unlawful
employment discrimination.17 Lastly, regarding the state law tort claims, Defendant
avers that Plaintiff has failed to plead facts sufficient to support claims of libel,
slander, intentional infliction of emotional distress, negligent infliction of emotional
distress, or civil conspiracy and that Plaintiff’s negligence claim is barred by
Louisiana’s at-will employment doctrine.18
14 Id.
15 R. Doc. 39.
16 R. Doc. 39-1 at p. 6.
17 Id. at p. 7-8.
18 Id. at pp. 8-18.
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Plaintiff 	Obienu 	responds 	that 	his 	Second 	Amended 	Complaint 	stated
plausible claims for race and national origin discrimination under Title VII, the
LEDL, and 42 U.S.C. §1981.19 He further states that his claim under the LHRA is
still viable for people seeking public accommodations and broader civil rights
protections.20 Regarding the state law tort claims, Plaintiff claims that he has
sufficiently alleged the facts to establish each element of defamation under Louisiana
law and civil conspiracy.21 Further, he asserts that his negligence claim is not barred
by Louisiana’s at-will employment doctrine and that the narrow application of
intentional infliction of emotional distress and negligent infliction of emotional
distress are not barred by Louisiana court’s narrow application of those claims.22
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal
of a complaint, or any part of it, for failure to state a claim upon which relief may be
granted.23 	To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”24 “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
19 R. Doc. 40 at pp. 6-8.
20 Id. at p. 8.
21 Id. at pp. 9-10.
22 Id.
23 Fed. R. Civ. P. 12(b)(6).
24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
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the misconduct alleged.”25 But, no matter the factual content, a claim is not plausible
if it rests on a legal theory that is not cognizable.26
In ruling on a motion to dismiss, the Court accepts all well-pleaded facts as
true and views those facts in the light most favorable to the non-moving party.27 The
Court, however, is not bound to accept as true conclusory allegations, unwarranted
factual inferences, or legal conclusions.28 	“Dismissal is appropriate when the
complaint on its face shows a bar to relief.”29 	In deciding a Rule 12(b)(6) motion to
dismiss, a court is generally prohibited from considering information outside the
pleadings, but may consider documents outside of the complaint when they are: (1)
attached to the motion; (2) referenced in the complaint; and (3) central to the
plaintiff’s claims.30
III. 	ANALYSIS
Defendant ACSA’s motion challenges several of the claims brought by Plaintiff
and moves to dismiss them for failure to state a claim for which relief can be granted
under Fed. R. Civ. P. 12(b)(6). The Court will discuss each of the challenged claims in
turn.
25 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678) (quotation
marks omitted).
26 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).
27 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
28 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
29 Cutrer v. McMillan, 308 Fed. Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks
omitted).
30 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed. Appx. 336, 340–41 (5th Cir. 2011).
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A. Plaintiff Fails to State a Claim for Discrimination under Title VII and
the Louisiana Employment Discrimination Law.
Defendant argues that Plaintiff has failed to plead facts sufficient to state a
claim 	for employment 	discrimination 	under both 	Title 	VII and the 	Louisiana
Employment Discrimination Law (“LEDL”). Specifically, Defendant contends that
the Plaintiff has failed to plead facts on each of the ultimate elements of the claim of
employment discrimination.31 Plaintiff disagrees and responds that the factual
allegations in the complaint support a plausible inference that the stated justification
was pretextual and that Plaintiff’s race and national origin were motivating factors.32
For a prima facie case of discrimination under Title VII (and the LEDL),33 a
Plaintiff must prove that
(1) he is a member of a protected class, (2) he was qualified for the position at
issue, (3) he was the subject of an adverse employment action, and (4) he was
treated less favorably because of his membership in that protected class than
were 	other similarly situated employees 	who 	were 	not 	members 	of 	the
protected class, under nearly identical circumstances.34
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need not prove a prima
facie case of discrimination; however, he must “plead sufficient facts on all of the
ultimate elements of a disparate treatment claim to make his case plausible.”35
The ultimate issue of a Title VII disparate treatment claim is whether the defendant
31 R. Doc. 39-1 at pp. 4-5
32 R. Doc. 40 at pp. 6-7
33 Defendant asserts and Plaintiff does not dispute that Title VII and the LEDL share the same scope
and purpose and are analyzed under the same framework. See DeCorte v. Jordan, 497 F.3d 433, 437
(5th Cir. 2007) (“Claims of racial discrimination in employment, pursuant to…the Louisiana
Employment Discrimination Law, are governed by the same analysis as that employed for such claims
under Title VII.”).
34 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009) (citing Abarca v. Metro. Transit
Auth., 404 F.3d 938, 941 (5th Cir. 2005)).
35 Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016).
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took an adverse employment action against the plaintiff because of the plaintiff’s
protected status.36
Plaintiff’s Second Amended Complaint fails to state a claim under Title VII. In
the Complaint, Plaintiff alleges that “[o]n believe [sic] and information, Defendant
used Plaintiff Obienu’s military status to discriminate against Obienu based on his
race and/or national origin.”37 It then states that Defendant discriminated against
Plaintiff by using his military service as a prextext for discrimination.”38 Plaintiff
fails to allege any facts to tie his statement that he is a black male of Nigerian origin
with the conclusions that “On believe and information, Defendant used Plaintiff
Obienu’s military status to discriminate against Obienu based on his race and/or
national origin,”39 and “The acts of Defendants described herein above constitute
Employment discrimination and wrongful termination based on race and national
origin.”40 This Court has held that a Plaintiff’s own subjective belief that some
seemingly race-neutral incidents were instead motivated by racial animus is not
sufficient to state a claim under Title VII.41 Ultimately, Plaintiff fails to plead
sufficient facts to make a plausible claim that Defendant ACSA withdrew his offer of
employment because of his race or national origin. As such, Plaintiff’s claims under
Title VII and the LEDL must be dismissed.
36 See Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013).
37 R. Doc. 37 at ¶ 34.
38 Id. at ¶ 58.
39 R. Doc. 37 at ¶ 34.
40 Id. at ¶ 50.
41 Rome-Bienemy v. Children's Hosp., No. CV 14-1020, 2015 WL 8600689, at *9 (E.D. La. Dec. 14, 2015)
(Zainey, J.).
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B. Plaintiff Fails to State a Claim for Discrimination under Section 1981.
Defendant 	ACSA 	argues 	that 	Plaintiff 	has 	failed 	to 	state 	a 	claim 	for
discrimination under 42 U.S.C. §1981 because naked allegations of discrimination
are not sufficient to state a claim for race-based discrimination under Section 1981.42
Plaintiff responds that his allegation that no similarly situated white or non-Nigerian
candidate would have had their job offer revoked by the Plaintiff due to military
obligations is sufficient at the pleading stage.43
To prevail on a claim under 42 U.S.C. §1981, the plaintiff “must initially plead
and ultimately prove that, but for race, it would not have suffered the loss of a legally
protected right.”44 Additionally, the plaintiff “must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination
concerns one or more of the activities enumerated in the statute.”45
The factual allegations, as pleaded in the Second Amended and Supplemental
Complaint, do not “when assumed to be true ‘raise a right to relief above the
speculative level.’”46 Instead, the Complaint states conclusory allegations that no
similarly situated white or non-Nigerian employee has been or would have been
42 R. Doc. 39-1 at pp. 6-7.
43 R. Doc. 40 at p. 8. The Court notes that Plaintiff’s Response references the religious beliefs of the
Plaintiff. Section 1981 does not protect against religious discrimination. See, e.g., Aziz v. MMR Grp.,
Inc., 530 F. Supp. 3d 644, 654 (M.D. La. 2019) (citing McCoy v. Homestead Studio Suites Hotels, 177
F. App'x 442, 445 n.2 (5th Cir. 2006)).
44 Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. 327, 341, 140 S. Ct. 1009, 1019,
206 L. Ed. 2d 356 (2020).
45 Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994)
46 Wilson v. Houston Cmty. Coll. Sys., 955 F.3d 490, 500 (5th Cir. 2020), rev'd, 595 U.S. 468, 142 S. Ct.
1253, 212 L. Ed. 2d 303 (2022) (quoting Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)).
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terminated.47 Such allegations, when placed in the factual context of the complaint,
do not support the inference that the Plaintiff is entitled to relief under 42 U.S.C.
§1981.48 Because the statement is conclusory and does not present any factual
allegations sufficient to meet the pleading standard of a Section 1981 claim, the
Plaintiff has failed to state a claim for which relief may be granted. As such, this
Court grants Defendant’s Motion to Dismiss regarding the Plaintiff’s claim for
discrimination under Section 1981.
C. Plaintiff 	Fails 	to 	State 	a 	Claim 	for 	Discrimination 	Under 	the
Louisiana Human Rights Act.
Defendant argues that Plaintiff cannot state a claim for discrimination under
the Louisiana Human Rights Act (“LHRA”) because the remedies under the act for
employment 	discrimination 	were 	subsumed 	by 	the 	Louisiana 	Employment
Discrimination 	Law 	(“LEDL”). 	Plaintiff 	agrees 	that 	claims 	for 	employment
discrimination are to be made under the LEDL,49 but simply asserts that it should
not be dismissed unless it is clear from the face of the complaint that it entirely
overlaps with the LHRA claim.
The Court agrees that Plaintiff’s claim has failed to state a claim and cannot
state a claim for employment discrimination under the LHRA. The LHRA originally
contained provisions prohibiting discriminatory employment practices by employers,
47 R. Doc. 37, ¶¶ 59-60.
48 See, e.g., Badaiki v. Schlumberger Holdings Corp., No. 4:20-CV-2216, 2021 WL 6010580, at *2 (S.D.
Tex. Aug. 23, 2021), report and recommendation adopted, No. 4:20-CV-02216, 2021 WL 5542144 (S.D.
Tex. Nov. 26, 2021), and report and recommendation adopted, No. 4:20-CV-02216, 2021 WL 5769276
(S.D. Tex. Dec. 6, 2021).
49 See R. Doc. 40 at p. 8. (“While employment discrimination claims are covered by the LEDL, the
LHRA still provides causes of actin in other contexts, including public accommodations and broader
civil rights protections.”)
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but these provisions were repealed by the legislature in its 1997 act and placed in the
LEDL.50 Courts have found that discriminatory employment practices prohibited in
the LEDL do not give rise to a cause of action under the LHRA because the LHRA
“does not extend to provisions repealed from that Act and now incorporated into” the
LEDL.51 The Plaintiff’s Second Amendment Complaint explicitly contains a claim for
employment discrimination under the LHRA. There is no claim made regarding any
other cause of action that remains in the LHRA after the 1997 amendments, such as
for public accommodations.52 Because no such claim was made and neither are such
claims applicable to the present case, Plaintiff’s claim for discrimination under the
LHRA must be dismissed.
D. Plaintiff Fails to State a Claim for Defamation under Louisiana Law.
Defendant argues that Plaintiff has failed to state a claim for defamation
because he failed to plead each of the factual elements that must be proven for a
defamation 	claim.53 	Defendant 	further 	contends 	that 	some 	of 	the 	statements
identified in the Second Amended Complaint as defamatory are statements of
opinion, not fact.54 Plaintiff responds that the allegations in the Second Amended
Complaint are sufficient to plead a claim for defamation because courts permit
50 Lowry v. Dresser, Inc., 893 So. 2d 966, 967 (La. App. 3 Cir. 2/2/05), writ denied, 922 So. 2d 1157 (La.
2/3/06).
51 Smith v. Par. of Washington, 318 F. Supp. 2d 366, 373 (E.D. La. 2004); see also Hollister v. Gallagher,
No. CIV.A. 03-0578, 2004 WL 224547, at *1 (E.D. La. Feb. 4, 2004); Johnson v. Integrated Health
Servs., Inc., No. CIV.A. 01-2075, 2002 WL 31246762, at *2 (E.D. La. Oct. 2, 2002).
52 R. Doc. 37 at ¶¶ 45-46.
53 R. Doc. 39-1 at p. 9. Defendant uses the term defamation to include the allegations of state law libel
and slander. The Court does as well.
54 Id. at pp. 9-10, referencing R. Doc. 37, ¶ 77.
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defamation claims to proceed if alleged with sufficient context such that discovery
can “flesh out” the details.55
Because the claim for defamation was brought under Louisiana law, this Court
turns to the law of this state for the pleading standard for defamation. There are four
elements necessary to establish a claim for defamation under Louisiana law: “(1) a
false and defamatory statement concerning another; (2) an unprivileged publication
to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4)
resulting injury.”56 The Louisiana Supreme Court has required that a plaintiff in a
defamation suit must plead “with reasonable specificity the defamatory statements
allegedly published by defendant.”57 	Furthermore, the plaintiff “must name the
individual offenders and allege separate acts of defamation as to each, including
specific defamatory statements.”58 Federal courts in this state have adopted this
pleading standard.59
In his Second Amended Complaint, Plaintiff has failed to meet this pleading
standard. He has not named any individual offenders and has not alleged separate
acts of defamation as to each.60 While Plaintiff did identify several statements that
he alleges ACSA “Does 1 to 20 and other associates and agents of ACSA” made about
him, two of them are not statements of fact. Statements of opinion cannot be
55 R. Doc. 40 at p. 9.
56 Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 674 (La. 7/10/06).
57 Fitzgerald v. Tucker, 737 So. 2d 706, 713 (La. 1999).
58 Badeaux v. Sw. Computer Bureau, Inc., 929 So. 2d 1211, 1218 (La. 3/17/06).
59 See, e.g., Hills v. Tangipahoa Par. Sch. Sys., No. CV 19-5, 2020 WL 1250810 (E.D. La. Mar. 16, 2020);
Eng. v. Wood Grp. PSN, Inc., No. CIV.A. 15-568, 2015 WL 5061164 (E.D. La. Aug. 25, 2015).
60 R. Doc. 37 at ¶¶ 73-92.
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defamatory as a matter of law.61 The Court finds that “Obienu is not a suitable
employee” and “Obienu is not worthy of trust” are statements of opinion because no
reasonable person would be able to understand those statements as a statement of
existing fact.62
The Court agrees with Judge Lemelle’s Reasoning in the Jacob case that
statements from plaintiffs “that discovery will prove…the extent of the defamation
simply do not carry the day.”63 To allow such a claim to proceed would effectively
neuter Fed. R. Civ. P. 12(b)(6), which requires plaintiffs to state a claim for which
relief can be granted. For those reasons, the Court finds that Plaintiff has failed to
state a claim for defamation under Louisiana law. As such, the state law claims of
libel and slander must be dismissed.
E. Plaintiff’s Claim for Negligence is Not Barred by Louisiana’s At-Will
Employment Doctrine
Defendant argues that Plaintiff’s negligence claim is barred by Louisiana’s at-
will employment doctrine. It contends that Plaintiff’s claim is one for negligent
termination and that based on the at-will employment doctrine, both employees and
employers can end their employment relationship at any time, providing no statutory
or constitutional provision is violated.64 Plaintiff responds that his claim is not one
61 Bussie v. Lowenthal, 535 So. 2d 378, 381 (La. 1988) (“A pure statement of opinion, which is based
totally on the speaker's subjective view and which does not expressly state or imply the existence of
underlying facts, usually will not be actionable in defamation.”).
62 Mashburn v. Collin, 355 So. 2d 879, 886 (La. 1977) (“In order for a statement to be defended as fair
comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement
of fact.”).
63 Jacob v. Kopfler, No. CV 04-1323, 2005 WL 8174246, at *10 (E.D. La. June 14, 2005)
64 R. Doc. 39-1 at pp. 12-13.
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for wrongful termination but rather one for Defendants’ negligence in verifying his
employment, handling his job offer, and disseminating damaging information.65
Louisiana has codified the at-will employment doctrine in Article 2747 of the
Civil Code: “A man is at liberty to dismiss a hired servant attached to his person or
family, without assigning any reason for so doing. The servant is also free to depart
without assigning any cause.”66 This doctrine allows both employees and employers
to terminate their employment relationship at any time and for any reason “provided
that the termination violates no statutory or constitutional provision and, obviously,
that there is no contract of employment for a definite term.”67 The Second Amended
Complaint does not allege that the Plaintiff had a contract of employment for a
definite term. As such, Plaintiff was an at-will employee under Louisiana law. Like
the employee in Delchamps, Plaintiff’s cause of action is essentially one for wrongful
termination.68 Plaintiff avers that his claim is for negligence in verifying his
employment, handling his job offer, and disseminating damaging information.69
However, each of these claims leads to the ultimate claim which is that Defendant
ACSA acted negligently in terminating Plaintiff’s employment.
However, unlike the plaintiff in Delchamps, the Plaintiff here has alleged
violations of statutory provisions that would, if proven true, prohibit Defendant from
discharging him.70 Because Plaintiff has sufficiently pled that Defendant violated
65 R. Doc. 40 at p. 9.
66 La. Civ. C. art. 2747.
67 Johnson v. Delchamps, Inc., 897 F.2d 808, 810 (5th Cir. 1990) (emphasis added).
68 See id.
69 R. Doc. 40 at p. 9.
70 Johnson v. Delchamps, Inc., 897 F.2d 808, 810 (5th Cir. 1990) (“Johnson makes no claim that a
constitutional or statutory provision prohibits Delchamps from discharging her.”).
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certain 	statutory 	provisions, 	such 	as 	a 	violation 	of 	the 	Uniformed 	Services
Employment and Reemployment Rights Act of 1994, the claim for negligence in this
case is not foreclosed by Louisiana’s at-will employment doctrine.71 As such, the Court
denies the Motion to Dismiss as it pertains to Plaintiff’s claim for negligence under
Louisiana law.
F. Plaintiff Has Failed to State a Claim for Intentional Infliction of
Emotional Distress (“IIED”)
Defendant argues that Plaintiff has failed to state a claim for IIED because the
allegations contained in the Second Amended Complaint fail to allege that extreme
and outrageous conduct that would be required to sufficiently plead a claim for IIED
under Louisiana law.72 Plaintiff responds that he has sufficiently pled the facts
necessary to state a claim for IIED, including that he suffered severe reputational,
personal, and emotional harm.73
To recover for IIED under Louisiana law, a Plaintiff must prove
(1) that the conduct of the defendant was extreme and outrageous; (2) that the
emotional distress suffered by the plaintiff was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew that severe
emotional distress would be certain or substantially certain to result from his
conduct74
Furthermore, the conduct at issue “must be so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as 	atrocious 	and 	utterly 	intolerable 	in 	a 	civilized 	community.”75 Additionally,
71 R. Doc. 37 at ¶¶ 65-72.
72 R. Doc. 39-1 at pp. 13-15.
73 R. Doc. 40 at p. 10.
74 White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
75 Id.
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“[c]onduct which is merely tortuous [sic] or illegal does not rise to the level of being
extreme and outrageous.”76 The distress suffered by the Plaintiff “must be such that
no reasonable person could be expected to endure it.”77
When taken as true, the allegations made in the Complaint do not reach the
requisite standard for a claim of IIED. The actions alleged fail to approach the
standard of extreme and outrageous conduct necessary to recover under a theory of
IIED and further fail to demonstrate that Defendant desired to inflict emotional
distress on the Plaintiff or that it was substantially certain to result from Defendant’s
conduct.78 Additionally, Plaintiff has not alleged that the distress he suffered was so
extreme that no reasonable person could be expected to endure it. For these reasons,
Plaintiff has failed to state a claim for IIED for which relief can be granted, and the
claim must be dismissed.
G. Plaintiff 	Has 	Failed 	to 	State 	a 	Claim 	for 	Negligent 	Infliction 	of
Emotional 	Distress. 	(“NIED”), 	and 	the 	Claim 	Must 	Be 	Dismissed
Without Leave to Amend.
Defendant likewise argues that Plaintiff has failed to state a claim for NIED.
Defendant alleges that Plaintiff failed to allege such facts that could prove the
“special circumstances” that give rise to a claim for NIED under Louisiana law.79
Plaintiff responds summarily that his allegations are sufficient to state a claim for
NIED.80
76 Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1025 (La. 8/31/00).
77 White, 585 So. 2d at 1210.
78 See id.
79 R. Doc. 39-1 at pp. 15-16.
80 R. Doc. 40 at p. 10.
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Louisiana law allows for recovery for the negligent infliction of emotional
distress unaccompanied by physical injury.81 Courts use the negligence duty-risk
analysis to determine whether one may recover NIED.82 However, absent physical
injury, to recover for NIED, there must be a showing of “the especial likelihood of
genuine and serious emotional distress” that arises from “special circumstances.”83
Plaintiff alleges that he suffered “loss of his reputation, shame, mortification,
emotional distress, and injury to his feelings” as a result of Defendant’s actions.84
Recovery for NIED is reserved for instances of outrageous conduct.85 However,
Plaintiff has failed to allege that the circumstances surrounding this case are special
such that there is an especial likelihood of genuine and serious emotional distress.
When all of Plaintiff’s allegations are taken as true, they do not give rise to the special
circumstances that would give rise to an actionable claim for negligent infliction of
emotional distress. Furthermore, plaintiff has not sufficiently alleged facts that
create the inference of outrageous conduct, necessary to plead a claim for NIED. The
claim, therefore, must be dismissed.
H. Plaintiff Has Failed to State a Claim for Civil Conspiracy.
Defendants argue that the Plaintiff failed to plead a claim for civil conspiracy
in his Second Amended Complaint because he did not allege any express agreement
81 See Powell v. Brookshire's Grocery Co., 705 So. 2d 286, 291 (La. App. 2 Cir. 12/10/97).
82 Id. at 292.
83 Moresi v. State Through Dep't of Wildlife & Fisheries, 567 So. 2d 1081, 1096 (La. 1990) (enumerating
such special circumstances in which courts have allowed the recovery for negligent infliction of
emotional distress, such as the mishandling of corpses, causing fright or nervous shock in which a
person feared for his safety, and failure to take photographs or develop film at a wedding).
84 R. Doc. 37 at ¶ 88.
85 Succession of Harvey v. Dietzen, 716 So. 2d 911, 916 (La. App. 4 Cir. 6/24/98), writ denied, 728 So.
2d 391 (La. 11/6/98).
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among the parties and the agreed-upon intended result of the conspiracy.86 Plaintiff
simply responds that the allegations are sufficient to state a claim for civil conspiracy
because he pled facts to show the essential elements of the claim and because naming
defendants 	(ACSA, 	its 	employees 	and 	agents) 	makes 	his 	claim 	plausible 	and
discovery will further support the claim.87
A claim for civil conspiracy is rooted in Article 2324 of the Louisiana Civil Code,
which provides that “[h]e who conspires with another person to commit an intentional
or willful act is answerable, in solido, with that person, for the damage caused by
such act.”88 However, the actionable element for a conspiracy is not he conspiracy
itself “but rather the tort which the conspirators agreed to perpetrate and which they
actually commit in whole or in part.”89 To recover for said conspiracy, a plaintiff “must
allege and prove that an agreement existed to commit an illegal or tortious act, which
act was actually committed, which resulted in the plaintiff's injury, and there was an
agreement as to the intended outcome or result.”90
In the Second Amended Complaint, Plaintiff alleges several tortious acts,
including defamation, IIED, NIED, and negligence, which, from the Complaint,
appear to be the actionable elements of the alleged conspiracy. However, there is no
allegation 	(1) 	that 	there 	was 	any 	express 	agreement 	among 	the 	alleged 	co-
conspirators, (2) that the agreement was to achieve an agreed-upon, intended result,
86 R. Doc. 39-1 at pp. 16-17.
87 R. Doc. 40 at p. 10.
88 La. Civ. C. art. 2324.
89 Ross v. Conoco, Inc., 828 So. 2d 546, 552 (La. 10/15/02).
90 Crutcher-Tufts Res., Inc. v. Tufts, 992 So. 2d 1091, 1094 (La. App. 4 Cir. 9/17/08), writ denied, 998
So. 2d 105 (La. 1/16/09).
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or (3) what the agreed-upon intended result was.91 Under Louisiana law, these
elements are essential to a claim of civil conspiracy. Because Plaintiff has failed to
allege essential elements of a claim for civil conspiracy, he has failed to state a claim
under Fed. R. Civ. P. 12(b)(6). As a result, the claim for civil conspiracy must be
dismissed.
I. 	Plaintiff is Granted Leave to Amend Claims Not Foreclosed as a
Matter of Law and Claims that are Not Futile.
Plaintiff requests that should the Court find that Plaintiff has failed to state a
claim under Fed. R. Civ. P. 12(b)(6), the Court also grant leave to amend under Rule
15.92 Plaintiff argues that the Federal Rules favors liberal leave to amend pleadings
unless there is a substantial reason to deny such leave to amend.93
Courts must “freely give leave [to amend] when justice so requires.”94 	In
exercising their discretion, courts consider such factors as “undue delay, bad faith, or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, and futility of the amendment.”95 	“An amendment is
futile if it would fail to survive a Rule 12(b)(6) motion.”96 Here, there is no indication
of undue delay, bad faith, or dilatory motive on the part of Plaintiff. Moreover, while
Plaintiff has already amended his Complaint once, he has not repeatedly failed to
91 See R. Doc. 37 at ¶¶ 93-96.
92 R. Doc. 40 at p. 11.
93 Id.
94 FED. R. C IV. P. 15(a).
95 Nolan v. M/V SANTE FE, 25 F.3d 1043 (5th Cir. 1994) (citing Gregory v. Mitchell, 635 F.2d 199,
203 (5th Cir. 1981)).
96 Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (citation
omitted).
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cure deficiencies, and since this case remains in its infancy, Defendants will not be
prejudiced by amendment.
The Court, however, finds that leave to amend the claim under the LHRA
would be futile.97 Because a claim for employment discrimination under the LHRA is
barred as a matter of law by the 1997 amendments to the Act, this Court will not
grant leave to amend the claim for employment discrimination under the LHRA.98
As to the other claims dismissed by this Order and Reasons, there is nothing
to indicate at this time that amendment of those claims will be futile. Thus, the Court
finds that all relevant factors weigh in favor of amendment of those claims only, and
the Court exercises its discretion and allows Plaintiff the opportunity to file a Third
Amended Complaint as to his claims of employment discrimination under Title
VII/LEDL, discrimination under Section 1981, defamation, intentional infliction of
emotional distress, negligent infliction of emotional distress, and civil conspiracy.
IV. 	CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Motion to Dismiss for Failure to State a
Claim99 filed by Defendants is GRANTED in part and DENIED in part. The
Motion is GRANTED as to Plaintiff’s Title VII/LEDL claims for discrimination,
Section 	1981 	discrimination, 	discrimination 	under 	the 	LHRA, 	defamation,
97 Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000) (holding that a district court
does not abuse its discretion when it denies leave to amend if it is futile).
98 Jamieson By & Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985) (“When futility is
advanced as the reason for denying an amendment to a complaint, the court is usually denying leave
because the theory presented in the amendment lacks legal foundation or because the theory has been
adequately presented in a prior version of the complaint.”).
99 R. Doc. 12.
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intentional infliction of emotional distress, negligent infliction of emotional distress,
and civil conspiracy. These claims are DISMISSED. In all other respects, the Motion
is DENIED.
IT 	IS 	FURTHER ORDERED that Plaintiff Kesiena Dennis Obienu is
granted leave to amend his Second Amended Complaint only as it relates to his
claims of Title VII/LEDL discrimination, Section 1981 discrimination, defamation,
intentional infliction of emotional distress, negligent infliction of emotional distress,
and civil conspiracy.
IT 	IS 	FURTHER 	ORDERED 	that 	Plaintiff 	shall 	have 	until 	Friday,
January 23, 2026 to file a comprehensive Third Amended Complaint addressing the
deficiencies raised in this Order. The comprehensive amended pleading shall include
all of Plaintiff’s numbered allegations, as revised, supplemented, and/or amended,
which will become the operative complaint in this matter without reference to any
other document in the record. Failure to timely file a comprehensive Third Amended
Complaint shall result in the dismissal of the claims as set forth in this Order.
IT IS FURTHER ORDERED that the Scheduling Conference set for January
20, 2026, at 9:30 a.m. shall proceed as previously scheduled.
New Orleans, Louisiana, January 5, 2026.
_____________________________
WENDY B. VITTER
United States District Judge
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