GRAY H. MILLER, Senior District Judge.
Pending before the court are nine motions to dismiss plaintiff Juan A. Peña's complaint (Dkt. 1) by defendants Jim Lewis, Adam Gonzalez, Merv Lauer, and Piping Technology & Products Inc. ("Piping Tech") (collectively, "Defendants"). Dkts. 10-15, 27, 28, 29. These motions include each defendant's motion to dismiss for failure to state a claim under Rule 12(b)(6) (Dkts. 10-12, 29); Lewis, Gonzalez, and Lauer's motions to dismiss for failure to properly plead under Rule 9(b) (Dkts. 13-15); Piping Tech's motion to dismiss for lack of personal and subject matter jurisdiction (Dkt. 27); and Piping Tech's motion to dismiss for failure to timely serve (Dkt. 28). The response deadlines for all motions—some of which have been pending since May of 2019—have passed and Peña has failed to respond to any of the motions. All nine motions to dismiss are ripe for consideration.
Having considered the complaint, the motions, and the applicable law, the court finds that Lewis, Gonzalez, and Lauer's motions to dismiss for failure to state a claim under Rule 12(b)(6) (Dkts. 10-12), and Piping Tech's motion to dismiss for lack of jurisdiction (Dkt. 27) should be
Plaintiff Juan Peña, proceeding pro se, commenced this employment discrimination action against Lewis, Gonzalez, and Lauer (the "individual defendants") on September 25, 2018, alleging that the individual defendants failed to promote him. Dkt. 1 at 2. In his complaint, Peña failed to check any of the five protected class boxes on which his discrimination claim is purportedly based. Id. Peña did not serve Lewis, Gonzalez, or Lauer until April 16, 2019 (Dkts. 7-9), following an order from this court (Dkt. 6). On May 1, 2019, the individual defendants—all represented by the same counsel—each filed a motion to dismiss for failure to state a claim and a motion to dismiss for failure to properly plead. Dkts. 10-15.
On October 3, 2019, Peña requested "a little more time to look around" for a lawyer. Dkt. 25. On November 7, 2019, Piping Tech was served (Dkt. 26), yet Peña never amended his complaint. On November 20, 2019, Piping Tech filed a motion to dismiss for lack of jurisdiction. Dkt. 27. On December 13, 2019, Piping Tech filed an additional motion to dismiss for failure to timely serve. Dkt. 28.
Courts must consider jurisdictional attacks before attacks on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "The title of the complaint must name all the parties." Fed. R. Civ. P. 10(a). "Failure to name a party denies a court jurisdiction over that party." Loa-Herrera v. Trominski, 231 F.3d 984, 991 (5th Cir. 2000). A plaintiff "can assert his claims only against parties specifically named in his complaint. He cannot recover against unnamed parties." Breaux v. Tri Star Freight Sys., Inc., No. CV H-16-846, 2016 WL 6581929, at *2 (S.D. Tex. Nov. 7, 2016) (Rosenthal, J.).
"Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007). At the pleading stage, the court must "accept all well-pleaded facts in the complaint as true and view the facts in the light most favorable to the plaintiff." O'Daniel v. Indus. Serv. Sols., 922 F.3d 299, 304 (5th Cir. 2019). "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 the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "[D]ismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief." Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009).
Despite being granted leave to amend to add a proper party, Peña never amended his complaint to name Piping Tech as a defendant or to state any claim against Piping Tech. For this reason, Piping Tech argues that the court lacks jurisdiction over it. The court agrees. "The title of the complaint must name all the parties." Fed. R. Civ. P. 10(a). "Failure to name a party denies a court jurisdiction over that party." Loa-Herrera, 231 F.3d at 991. Thus, Piping Tech's motion to dismiss for lack of jurisdiction (Dkt. 27) should be granted.
According to Peña's complaint, he is alleging employment discrimination in the form of failure to promote. Dkt. 1 at 2 (checking the "failed to promote the plaintiff" box). However, the allegations of the complaint show that Peña is actually complaining that he never received a raise.
Here, Peña's complaint fails at the first step because he never states that he is a member of a protected class. Dkt. 1 at 2. Although the form complaint that Peña used to institute this suit afforded him five protected class boxes to check, he selected none of them. Id. The word "race" appears throughout Peña's complaint; however, based on the context in which it is used, the court construes this word to be a misspelling of the word "raise," not an indication that Peña is claiming race discrimination. See supra note 4. Without this first element, there can be no discrimination claim. See, e.g., 42 U.S.C. § 2000e-2(a)(1).
Failure as to the first element is enough for the court to grant the individual defendants' motions to dismiss. Stockstill, 561 F.3d at 384 (holding that "dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief"). However, the complaint fails as to the other elements as well. Peña's only allegation about other employees is that "a lot of empolee [sic] getting more money, not me." Dkt. 1 at 6. Yet Peña never states whether these other employees are identical in circumstance to him. Moreover, it is impossible to discern whether these other employees are members of his protected class, because he has not alleged that he is a member of a protected class. Accordingly, the individual defendants' motions to dismiss for failure to state a claim (Dkts. 10-12) should be granted.
For the reasons state above, Lewis, Gonzalez, and Lauer's motions to dismiss for failure to state a claim (Dkts. 10-12) are
Because Peña is proceeding pro se, the court will afford him 21 days from the date of this order to file an amended complaint stating a claim against Defendants. If he fails to do so, this case will be dismissed with prejudice for want of prosecution.