MEMORANDUM OPINION AND ORDER
WALLACE CAPEL, JR., Chief Magistrate Judge.
I. BACKGROUND
Pending before the Court is Alutiiq Education & Training, LLC's ("Alutiiq" or "Defendant") Partial Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 19). On January 11, 2019, Plaintiff Monisha Wolf ("Wolf" or "Plaintiff") filed her original complaint alleging race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq, and "Mental Suffering and Emotional Distress." See Doc. 1. On February 6, 2019, Plaintiff amended her complaint pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure. Doc. 4. Defendant moved to dismiss the amended complaint. Doc. 5. On May 2, 2019, the Honorable United States Magistrate Judge Gray M. Borden issued a Memorandum Opinion and Order (Doc. 17) granting Defendant's motion to dismiss, but also allowing Plaintiff to re-plead her claims. Specifically related to the mental suffering and emotional distress count, the court found that "[u]pon review of the Amended Complaint, it appears that Wolf has expressly cited to federal cases allowing for certain types of damages, but has not pleaded the elements of a state-law tort claim." Doc. 17 at 5.
On May 16, 2019, Plaintiff filed her Second Amended Complaint alleging race discrimination pursuant to 42 U.S.C. § 1981 and mental suffering and emotional distress. Doc. 18. Defendant filed the instant motion to dismiss Count Two of the second amended complaint. Doc. 19. Plaintiff filed a response in opposition (Doc. 21) to which Defendant replied (Doc. 22). Upon consideration of the pleadings and the parties' briefs, the court finds that Defendant's motion to dismiss Plaintiff's mental suffering and emotional distress claim is due to be GRANTED.
II. STANDARD OF REVIEW
Defendants move to dismiss the Amended Complaint for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. "In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, but [l]egal conclusions without adequate factual support are entitled to no assumption of truth." Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (quotations and citations omitted). To state a claim upon which relief could be granted, a complaint must satisfy the pleading standard of Rule 8 of the Federal Rules of Civil Procedure.
Rule 8 requires that a plaintiff submit a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In application, the Rule requires that a plaintiff plead "enough facts to state a claim to relief that is plausible on its face," in that the well-pleaded factual matter in the complaint "nudge[s] [the plaintiff's] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although "the pleading standard Rule 8 announces does not require `detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Accordingly, the court may "insist upon some specificity in [the] pleading before allowing" the complaint to survive a motion to dismiss. Twombly, 550 U.S. at 558.
To adequately state a claim under Rule 8(a) and survive a motion to dismiss pursuant to Rule 12(b)(6), the complaint must plead sufficient "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (citations omitted). Thus, a pleading is insufficient if it offers only mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action[.]" Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (a complaint does not suffice under Rule 8(a) "if it tenders `naked assertion[s]' devoid of `further factual enhancement.'"). In other words, to survive a motion pursuant to Rule 12(b)(6), "a plaintiff [must] include factual allegations for each essential element of his or her claim." GeorgiaCarry.Org., Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012).
In assessing the sufficiency of the complaint, a reviewing court is to look at the complaint as a whole, considering whether all of the facts alleged raise a claim that is plausible on its face. See Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control and Prevention, 623 F.3d 1371, 1382 (11th Cir. 2010). Thus, the court reads the complaint "holistically," taking into account all relevant context. El-Saba v. Univ. of S. Ala., Civ. No. 15-87-KD-N, 2015 WL 5849747, at *15 (S.D. Ala. Sept. 22, 2015) (citing Garayalde-Rios v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir. 2014)). As such, "[d]etermining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
III. DISCUSSION
Defendants move to dismiss Plaintiff's mental suffering and emotional distress claim, arguing that Plaintiff has failed to state any claim upon which relief could be granted. Doc. 19 at 1. Defendant argues that "Count Two of the Second Amended Complaint is titled only Mental Suffering and Emotional Distress. However, just as with the First Amended Complaint, this claim is merely a recitation of damages allegedly suffered by the plaintiff, not a recitation of a separate state law tort claim." Doc. 19 at 2-3. Plaintiff asserts that Defendant failed to cite "legal authority prohibiting an independent cause of action for Mental Suffering and Emotional Distress."1 Doc. 21 at 4. Plaintiff further asserts that the Alabama Supreme Court "recognizes an independent cause of action for Infliction of Emotional Distress as ruled in American Road Service v. Imon, 394 So.2d 361 (Ala. 1980)." Doc. 21 at 4.
In Plaintiff's Second Amended Complaint, she re-alleges an identical set of facts to support her claim for mental suffering and emotional distress as she did in her First Amended Complaint. Doc. 18 at 6-7. The Court already cautioned Plaintiff that "[u]pon review of the Amended Complaint, it appears that Wolf has expressly cited to federal cases allowing for certain types of damages, but has not pleaded the elements of a state-law tort claim." Doc. 17 at 5. The only portion of Count Two that differs from its predecessor is the string cite to case law, in which Plaintiff now cites to Alabama case law rather than federal case law as directed. See Doc. 18 at 7. However, Plaintiff has still failed to remedy the primary issue previously addressed by the Court — the failure to plead the elements of a state-law tort claim.
The Court has reviewed the six Supreme Court of Alabama cases cited in Plaintiff's Second Amended Complaint. See Orkin Exterminating Co. v. Jeter, 832 So.2d 25 (Ala. 2001); Oliver v. Towns, 770 So.2d 1059 (Ala. 2000); Delchamps v. Bryant, 738 So.2d 824 (Ala. 1999); Sperau v. Ford Motor Co., 674 So.2d 24 (Ala. 1995), vacated on other grounds, 517 U.S. 1217 (1996), on remand, 708 So.2d 111 (Ala. 1997); Crown Life Ins. Co. v. Smith, 657 So.2d 821 (Ala. 1994); and Sears, Roebuck Co. v. Harris, 630 So.2d 1018 (Ala. 1993). As Defendant correctly asserts, the cases cited by Plaintiff all discuss mental suffering and emotional distress in relation to damage awards, not as an independent cause of action. Plaintiff has failed to cite a single case, nor can the Court find one, that supports her position that Alabama recognizes mental suffering and emotional distress as a cognizable state law tort claim. However, it should be noted that the Plaintiff has properly pled emotional distress and mental anguish as damages within her prayer for relief. Doc. 18 at 7.
In Plaintiff's response, for the first time, she asserts that "Alabama Supreme Court[] recognizes an independent cause of action for Infliction of Emotional Distress" and that her Second Amended Complaint "clearly falls in line with this independent state cause of action." Doc. 21 at 4-5. While Plaintiff is correct, Alabama does recognize the state law tort claim of Intentional Infliction of Emotional Distress, also known as Outrage, Plaintiff failed to plead this claim in her Second Amended Complaint.
"In ruling on a motion to dismiss, the Court must limit `review to the four corners of the complaint.'" Clark v. Ocwen Loan Servicing, LLC, No. 117CV03027TCBAJB, 2018 WL 1804349, at *3 (N.D. Ga. Jan. 18, 2018), report and recommendation adopted, No. 1:17-CV-03027, 2018 WL 4471936 (N.D. Ga. Aug. 15, 2018) (quoting Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010)); see also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (stating "[a] court's review on a motion to dismiss is `limited to the four corners of the complaint.'") (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002)). "A party cannot amend a complaint by attaching documents to a response to a motion to dismiss, or by asserting new facts or theories in the response." Id.; see also Huls v. Llabona, 437 F. App'x 830, 832 (11th Cir. 2011) ("Because [the plaintiff] raised this argument for the first time in his response to [the defendant's] motion to dismiss, instead of seeking leave to file an amended complaint, pursuant to Fed.R.Civ.P. 15(a), it was not properly raised below"); Brown v. J.P. Turner & Co., No. 1:09-cv-2649-JEC, 2011 WL 1882522, at *5 (N.D. Ga. May 17, 2011) (attempting to bolster a claim with new argument "made for first the time in response to a motion to dismiss, is plainly inappropriate.") (citations omitted); accord Walker v. City of Orlando, No. 07-651, 2007 WL 1839431, at *5 (M.D. Fla. June 26, 2007) (limiting "its consideration to the allegations contained in the complaint," where the response "attempt[ed] to introduce new allegations not contained in the Complaint."). Plaintiff's response brief is not the proper avenue to attempt to assert a new claim.
For the foregoing reasons, the court concludes that Plaintiff has failed to state a plausible claim for mental suffering and emotional distress. The court notes that Plaintiff, who is represented by counsel, has amended her complaint twice already; once as a matter of course and the other in response to this Court's ruling on a Rule 12(b)(6) motion to dismiss filed by Defendant. Docs. 4, 17, 18. Plaintiff failed to allege a claim for Intentional Infliction of Emotional Distress in any of her three complaints. Additionally, Plaintiff has not filed a motion to amend. "The Eleventh Circuit has `never required district courts to grant counseled plaintiffs more than one opportunity to amend a deficient complaint, nor [has the Eleventh Circuit] concluded that dismissal with prejudice is inappropriate where a counseled plaintiff has failed to cure a deficient pleading after having been offered ample opportunity to do so.'" Blackburn v. Shire US, Inc., No. 2:16-cv-963-RDP, 2017 WL 5013578, at *1 (N.D. Ala. Nov. 2, 2017) (quoting Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 F. App'x 925, 929 (11th Cir. 2016)). Accordingly, the court concludes that it is now appropriate to dismiss the deficiently pled claim and not to provide Plaintiff with further leave to amend her complaint.
IV. CONCLUSION
The undersigned concludes that Plaintiff has failed to state a plausible claim of mental suffering and emotional distress. Accordingly, it is ORDERED that Defendant's Partial Motion to Dismiss (Doc. 19) is GRANTED. It is further ORDERED that Plaintiff's claim for "Mental Suffering and Emotional Distress" set forth in Count Two of her Second Amended Complaint (Doc. 18) is DISMISSED with prejudice.
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CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
