Allen v. Amazon

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAMUEL LOMBEH ALLEN, 	§
§
Plaintiff, 	§
§
VS. 	§ 	Civil Action No. 3:24-CV-2846-D
§
AMAZON, 	§
§
Defendant. 	§
MEMORANDUM OPINION
AND ORDER
The court returns to this action in which pro se plaintiff Samuel Lombeh Allen
(“Allen”) asserts federal- and state-law claims against his former employer, defendant
Amazon. Amazon moves to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim
on which relief can be granted, to compel Allen to cure deficient discovery production and
responses, and to continue various deadlines in this case. For the reasons that follow, the
court grants Amazon’s motion to continue, and grants in part and denies in part Amazon’s
motions to dismiss and to compel.
I
The relevant background facts of this case are largely set out in a prior memorandum
opinion and order and need not be repeated at length for purposes of deciding Amazon’s
pending motions. See Allen v. Amazon (Allen III), 2025 WL 3059629, at *1-2 (N.D. Tex.
Nov. 3, 2025) (Fitzwater, J.). The court previously dismissed nearly all of Allen’s claims for
failure to state a claim on which relief can be granted. 	See id. at *8-9. 	In his second
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amended complaint, Allen asserts the following claims: violations of the Texas Commission
on Human Rights Act (“TCHRA”), Tex. Lab. Code Ann. § 21.001 et seq. (West 2023); Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 42 U.S.C. §
1981, the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. 2601 et seq.; and the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. Allen also
alleges a claim for common law negligence. He seeks damages in the form of lost wages,
front pay, lost benefits, and medical expenses; damages for physical pain, emotional distress,
mental anguish, and loss of enjoyment of life; liquidated damages under the FMLA; punitive
damages; and injunctive and declaratory relief.
Amazon moves to dismiss under Rule 12(b)(6) for failure to state a claim on which
relief can be granted. 	Amazon also moves, inter alia, to compel Allen to amend his
responses to Amazon’s interrogatories and requests for production (“RFPs”), to produce
documents responsive to the RFPs, and to sign authorizations allowing Amazon to obtain
Allen’s medical records, employment records, and financial records. Amazon also moves
to extend various deadlines in this case for eight months. Allen opposes the motions, which
the court is deciding on the briefs, without oral argument.
II
The court begins by considering Amazon’s Rule 12(b)(6) motion to dismiss.
A
“In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of
[the plaintiff’s second amended] complaint by ‘accept[ing] all well-pleaded facts as true,
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viewing them in the light most favorable to the plaintiff.’” Bramlett v. Med. Protective Co.
of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (second
alteration in original) (internal quotation marks omitted) (quoting In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To overcome a Rule 12(b)(6) motion
to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on
its face.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“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 (2009). 	“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough
to raise a right to relief above the speculative level[.]”). “[W]here 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 ‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (quoting Rule 8(a)(2)) (alteration omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
Failure to exhaust administrative remedies is an affirmative defense. 	See, e.g.,
Clemmer v. Irving Indep. Sch. Dist., 2015 WL 1757358, at *3 (N.D. Tex. Apr. 17, 2015)
(Fitzwater, J.) (Title VII exhaustion is an affirmative defense), aff’d, 689 Fed. Appx. 379 (5th
Cir. 2017). 	To obtain a Rule 12(b)(6) dismissal based on an affirmative defense, the
“successful affirmative defense [must] appear[] clearly on the face of the pleadings.”
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Sivertson v. Clinton, 2011 WL 4100958, at *2 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.)
(quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). In other words, the
movant is not entitled to dismissal under Rule 12(b)(6) based on the affirmative defense
unless the nonmovant has “pleaded [himself] out of court by admitting to all of the elements
of the defense.” Cochran v. Astrue, 2011 WL 5604024, at *1 (N.D. Tex. Nov. 17, 2011)
(Fitzwater, C.J.) (quoting Sivertson, 2011 WL 4100958, at *3).
B
Amazon maintains that Allen’s discrimination claims under Title VII, the ADA, and
the 	TCHRA 	are 	barred 	because 	he 	failed 	to 	exhaust 	his 	administrative 	remedies.
“Employment discrimination plaintiffs must exhaust administrative remedies before pursuing
claims in federal court.” 	Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.
2002). 	“Exhaustion occurs when the plaintiff files a timely charge with the [Equal
Employment Opportunity Commission (‘EEOC’)] and receives a statutory notice of right to
sue.” Id. at 379. Under Title VII and the ADA, a charge of discrimination must be filed
within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C.
§ 12117(a). And under the TCHRA, a charge of discrimination must be filed within 180
days of the unlawful employment practice. See Tex. Lab. Code Ann. § 21.202(a). Failure
to exhaust administrative remedies is a non-jurisdictional affirmative defense. 	See, e.g.,
Thomas v. McDonough, 2024 WL 1319727, at *2 (N.D. Tex. Mar. 26, 2024) (Scholer, J.).
The allegedly discriminatory acts underlying Allen’s claims occurred between March
2021—when he began requesting accommodations—and August 2023—when he was
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terminated. Allen acknowledges that he did not file a timely charge of discrimination. But
he maintains that the deadlines should be equitably tolled because, during the limitations
period, he experienced significant neurological and mobility complications. Allen recovered
in the beginning of November 2024, and, once recovered, he attempted to file a charge, but
was notified that the time to file had expired.
The court concludes that Allen’s discrimination claims under Title VII, the ADA, and
the TCHRA are barred because of his failure to file a charge of discrimination. 	“The
equitable tolling doctrine applies to the limitations period for filing a charge” but “does not
excuse an employee from the requirement of filing a charge and exhausting a claim.” Vlasek
v. Wal-Mart Stores, Inc., 2008 WL 2937760, at *5 (S.D. Tex. July 22, 2008) (Rosenthal, J.)
(collecting cases). 	Even assuming that Allen’s neurological and mobility complications
tolled the limitations period, his allegation that he merely attempted to file a charge is fatal
to his Title VII, ADA, and TCHRA claims. See id.; Russell v. Good Shepherd Med. Ctr.,
2009 WL 2487108, at *2 (E.D. Tex. Aug. 12, 2009) (“Given that the plaintiff never filed a
charge with the EEOC, this Court can find no exception to the statutory condition precedent
under which plaintiff may be granted any equitable relief.”); Kerver v. Exxon Prod. Rsch.
Co., 1986 WL 8872, at *3 (S.D. Tex. May 15, 1986) (“Plaintiff’s claim must nevertheless
be dismissed, because he failed to exercise reasonable diligence subsequent to the period of
requested tolling.”). Moreover, the fact that someone told Allen that the time to file a charge
had expired does not warrant further equitable tolling or excuse his failure to file. 	See
Ramirez v. City of San Antonio, 312 F.3d 178, 185 (5th Cir. 2002) (explaining that, for
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equitable tolling to apply, the EEOC must have “affirmatively misled [plaintiff] about the
nature of his rights, and thereby caused him to file his charge late”); Hines v. Widnall, 334
F.3d 1253, 1256-57 (11th Cir. 2003) (concluding that plaintiff’s failure to file charge with
the EEOC barred his claims even though he had attempted to file but was advised that he
could not); Hartnett v. Chase Bank of Tex. Nat’l Ass’n, 59 F.Supp.2d 605, 611 n.8 (N.D. Tex.
1999) (Lindsay, J.) (“[T]he EEOC is not responsible for providing Plaintiff with accurate
legal advice.”). Accordingly, the court grants Amazon’s motion to dismiss Allen’s Title VII,
ADA, and TCHRA claims based on the affirmative defense of failure to exhaust.1
C
Amazon contends that Allen has failed to state a plausible § 1981 claim. 	When a
plaintiff alleges a § 1981 claim of race discrimination based on circumstantial evidence, as
Allen does, the court can use the McDonnell Douglas2 framework as a reference when
determining whether the plaintiff has plausibly alleged the ultimate elements of his claim.
1Amazon also maintains that the court can consider Allen’s medical records when
assessing whether he failed to exhaust his administrative remedies. 	Documents that a
defendant attaches to a motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to his claim. See Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The court need not
decide whether these records are referred to in Allen’s second amended complaint and are
central to his claims because his Title VII, ADA, and TCHRA claims are barred without
considering these additional materials. See Johnson v. Digital Fed. Credit Union, 2025 WL
2773824, at *3 n.5 (N.D. Tex. Sept. 26, 2025) (Fitzwater, J.) (declining to consider whether
documents appended to Rule 12(b)(6) motion were incorporated by reference for similar
reasons) .
2McDonnell Douglas Co. v. Green, 411 U.S. 792, 802 (1973).
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See Hopkins v. Wayside Schs., 2024 WL 3738478, at *12 (5th Cir. Aug. 9, 2024) (per
curiam).3 Under this framework, a plaintiff must sufficiently plead that (1) he is a member
of a protected class; (2) he was qualified for the position; (3) he suffered an adverse
employment action; and (4) others similarly situated but outside his protected class were
treated more favorably. See Morris v. Town of Indep., 827 F.3d 396, 400 (5th Cir. 2016).
Amazon contends for three reasons that Allen’s § 1981 claim fails: first, because
Allen has failed to allege that he was qualified for the position; second, because he has failed
to allege an adverse employment action; and, third, because he has failed to allege that others
similarly situated but outside his protected class were treated more favorably.
3The familiar McDonnell Douglas standard for evaluating employment discrimination
claims is an evidentiary framework, not a pleading standard. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510 (2002). Accordingly, “a plaintiff need not make out a prima facie
case of discrimination in order to survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim.” Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (citing Swierkiewicz,
534 U.S. at 510-12); see also, e.g., Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th
Cir. 2016) (“Although Chhim did not have to submit evidence to establish a prima facie case
of discrimination at this stage, he had to plead sufficient facts on all of the ultimate elements
of a disparate treatment claim to make his case plausible.”). To survive Amazon’s motion
to dismiss, however, Allen must plausibly plead the ultimate elements of his discrimination
claim. 	See Chhim, 836 F.3d at 470. 	And since McDonnell Douglas will govern when a
plaintiff relies on indirect evidence of discrimination, it can be helpful to reference that
framework when the court is determining whether a plaintiff has plausibly alleged the
ultimate elements of his claim. See Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767
(5th Cir. 2019) (Title VII case) (“If a plaintiff’s . . . claim depends on circumstantial
evidence, he will ‘ultimately have to show’ that he can satisfy the McDonnell Douglas
framework. In such cases, we have said that it can be ‘helpful to reference’ that framework
when the court is determining whether a plaintiff has plausibly alleged the ultimate elements
of the . . . claim.” (quoting Chhim, 836 F.3d at 470-71)).
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1
Allen has plausibly alleged that he was qualified for the position. Amazon maintains
that Allen lacked the physical capacity to work. To support this contention, Amazon relies,
in part, on factual allegations from Allen’s amended complaint. See Woods v. STS Servs.
LLC, 2024 WL 4942382, at *2 n.5 (N.D. Tex. Dec. 2, 2024) (Fitzwater, J.) (explaining that
the court only considers factual allegations included in the operative complaint). According
to his second amended complaint, Allen began working for Amazon in 2021 as a warehouse
associate, he worked there for over two years, and, around the time he experienced the
adverse employment actions related to his § 1981 claim, he was working well over 40 hours
per week. At this stage, these allegations are sufficient to plausibly plead that Allen was
qualified for the position. See Okpalobi v. United Parcel Serv., Inc., 2025 WL 1115709, at
*4 (E.D. La. Apr. 15, 2025) (concluding that plaintiff’s allegation that defendant had “in fact
hired [him] for the position” was sufficient at “the motion to dismiss stage” to establish that
he was qualified (citing Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016)).
2
Next, Allen has plausibly alleged an adverse employment action. Although he was
ultimately terminated (which unquestionably is an adverse employment action), he premises
his § 1981 claim on the denial of his accommodation requests. Amazon maintains that the
denial of accommodations does not constitute an adverse employment action. To support this
proposition, Amazon relies on Bailey v. Twin Eagle Sand Logistics, LLC, which concluded
that “the denial of workplace accommodations is not an ‘ultimate employment decision’ that
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can give rise to a claim of discrimination[.]” Bailey v. Twin Eagle Sand Logistics, LLC, 2023
WL 1170123, at *6 (W.D. Tex. Jan. 30, 2023). But Bailey relies on out-dated precedent.
After Hamilton v. Dallas County, a plaintiff no longer needs to identify an “ultimate
employment decision” to establish an adverse employment action, but can instead show
discrimination in the terms, conditions, or privileges of his employment. See Hamilton v.
Dallas County, 79 F.4th 494, 497 (5th Cir. 2023) (en banc). 4 Under Hamilton, a plaintiff
pleads an adverse employment action when he plausibly alleges “adversity and asserts a non-
de minimis injury.” Harrison v. Brookhaven Sch. Dist., 82 F.4th 427, 430 (5th Cir. 2023)
(per curiam). Here, Allen alleges that he was delayed or denied various accommodations for
his leg. 	After Allen’s leg injury, for example, he unsuccessfully requested light duty.
Instead, he was required to perform his regular tasks on his injured leg for over one month,
for well over 40 hours per week. Allen has plausibly pleaded adversity and a corresponding
harm that is more than a mere “de minimis workplace trifle[].” See Hamilton, 79 F.4th at 505
(emphasis added); Pauwels v. Allied Pilots Ass’n, 2024 WL 628847, at *2, 5 (N.D. Tex. Feb.
14, 2024) (O’Connor, J.) (concluding that denial of plaintiff’s accommodation for scheduling
flexibility and corresponding economic harm constituted an adverse employment action for
her sex discrimination claim); Liao v. Univ. of Tex. at San Antonio, 2024 WL 4564278, at
4Although Hamilton involved only a Title VII claim, the Fifth Circuit has since
applied Hamilton to a suit involving claims under Title VII and § 1981. 	See Harrison v.
Brookhaven Sch. Dist., 82 F.4th 427, 429 n.3 (5th Cir. 2023) (per curiam); see also Malbrew
v. A+ Charter Schs., 2024 WL 3906772, at *9 (N.D. Tex. Aug. 22, 2024) (Brown, J.)
(applying Hamilton to suit involving claims under Title VII and § 1981).
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*9 (W.D. Tex. Oct. 23, 2024) (explaining that, after Hamilton, being “placed in a
‘disadvantageous’ situation” likely constitutes an adverse employment action).
3
Finally, Allen has plausibly pleaded that he was treated less favorably than other
similarly situated employees outside his protected group. Allen is obligated to “identify at
least one similarly situated coworker outside his protected class who was treated more
favorably under nearly identical circumstances.” 	Hopkins, 2024 WL 3738478, at *12
(internal quotation marks omitted) (citation omitted). He has done so. Allen alleges that he
injured his right leg, promptly requested light duty that was not approved, was delayed or
denied his request to work away from corridors with high powered machinery, and was
issued heightened attendance points during his recovery. His second amended complaint
identifies a non-Black coworker who injured her knee, was promptly approved for light duty,
was stationed away from lanes with high powered machinery, and had her attendance points
suspended during her recovery. Moreover, Allen’s proffered comparator is alleged to have
worked under the same operations manager and supervisor, worked at the same fulfillment
center, held the same title, and possessed similar responsibilities. These factual allegations
enable the court to draw the reasonable inference that Allen’s non-Black comparator was
treated more favorably under nearly identical circumstances. Cf. Turner v. City of Dallas,
2023 	WL 	8816400, 	at 	*3 	(N.D. 	Tex. 	Dec. 	19, 	2023) 	(Godbey, 	C.J.) 	(dismissing
discrimination claim where plaintiff did not allege that comparator “held the same job, had
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the same responsibilities, or reported to the same supervisor as herself”).5 And the
differences that Amazon identifies between Allen and his proffered comparator’s medical
conditions and requested accommodations are better addressed at a later procedural stage,
such as by motion for summary judgment. See Legacy Equity Advisors, LLC v. AT&T, Inc.,
2023 WL 6049753, at *6 (N.D. Tex. Sept. 15, 2023) (Fitzwater, J.) (“At the motion to
dismiss stage, the court does not conduct an in-depth analysis of whether the plaintiff’s
alleged comparators are actually ‘similarly situated’; rather, the plaintiff ‘need only plausibly
allege facts going to the ultimate elements of the [§ 1981] claim.’” (quoting Cicalese v. Univ.
of Tex. Med. Branch, 924 F.3d 762, 768 (5th Cir. 2019)); Gilani v. Univ. of Tex. Sw. Med.
Ctr., 2023 WL 2518811, at *8 (N.D. Tex. Mar. 13, 2023) (Godbey, C.J.) (concluding the
same).
4
Because Allen has plausibly alleged that he was qualified for the position, experienced
an adverse employment action, and was treated less favorably than his similarly situated non-
Black comparator, the court denies Amazon’s Rule 12(b)(6) motion to dismiss his § 1981
claim.
5Allen identifies two other potential comparators. The court need not address whether
Allen and these comparators are similarly situated given that Allen’s § 1981 claim survives
past the pleading stage based on the comparator discussed above. See Hopkins, 2024 WL
3738478, at * 12.
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D
The court next considers Amazon’s motion to dismiss Allen’s FMLA interference
claim. “To prove an interference claim, a plaintiff ‘must at least show that [the defendant]
interfered with, restrained, or denied [his] exercise or attempt to exercise FMLA rights, and
that the violation prejudiced [him].’” Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 788 (5th
Cir. 2017) (alterations in original) (quoting Bryant v. Tex. Dep’t of Aging & Disability Servs.,
781 F.3d 764, 770 (5th Cir. 2015)).
Amazon maintains that Allen raises only one theory in support of his FMLA
interference claim: that Amazon improperly “deducted paid and vacation time.” D. Br. (ECF
No. 74) 20. According to Amazon, the law permits employers to substitute paid leave for
leave provided under the FMLA. Allen responds that Amazon not only “deducted [his] leave
and vacation time,” but also counted his FMLA absences “toward discipline.” P. Resp. (ECF
No. 77) 14.
Amazon is correct that employers are permitted to substitute paid leave for FMLA
leave. To the extent that Allen’s FMLA interference claim arises out of Amazon’s decision
to substitute his paid leave for FMLA leave, this claim fails. See Turner v. Bd. of Supervisors
of Univ. of La. Sys., 644 F.Supp.3d 221, 227 (E.D. La. 2022) (“Employers are allowed to
require employees to substitute accrued paid sick leave for unpaid FMLA leave.”). But Allen
also alleges that Amazon interfered with his rights under the FMLA because it “counted [his]
protected absences toward discipline.” 	Compl. (ECF No. 68) ¶ 58; see Martin v. Penske
Logistics, LLC, 736 F.Supp.3d 437, 449 (N.D. Tex. 2024) (Boyle, J.) (explaining that
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interference under the FMLA includes “using an employee’s taking of FMLA leave as a
negative factor in employment actions” or “counting FMLA leave under no fault attendance
policies” (internal quotation marks omitted) (citation omitted)). Amazon does not contend
that Allen’s FMLA interference claim fails on this alternative theory. Because Amazon does
not move to dismiss Allen’s FMLA interference claim that arises out of this alternative
theory, the court declines to grant Amazon’s motion to dismiss this claim.
E
Amazon also moves to dismiss Allen’s FMLA retaliation claim. To plausibly allege
a claim for FMLA retaliation, a plaintiff must plead that (1) he was protected under the
FMLA; (2) he suffered an adverse employment action; and (3) he was treated less favorably
than an employee who had not requested leave under the FMLA, or the adverse decision was
made because he sought protection under the FMLA. 	Mauder v. Metro. Transit Auth. of
Harris County Tex., 446 F.3d 574, 583 (5th Cir. 2006).
Amazon maintains that Allen’s retaliation claim fails because he has not established
a causal link between his request for FMLA leave and his termination. 	According to
Amazon, Allen has failed to allege that he was treated less favorably than an employee who
did not request FMLA leave, and he has failed to establish that the temporal proximity
between his requests for FMLA leave and his termination were sufficiently close.
The court concludes that Allen has pleaded a plausible FMLA retaliation claim. Allen
has not alleged that he was treated less favorably than an employee who did not request leave
under the FMLA. The very close timing, however, between Allen’s last request for FMLA
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leave and his termination is sufficient to plausibly allege a causal connection. See Besser v.
Tex. Gen. Land Off., 834 Fed. Appx. 876, 884 (5th Cir. 2020) (per curiam) (explaining that
very close temporal proximity alone can suffice “to establish causation in a prima facie case
of [FMLA] retaliation”). Allen alleges that he requested FMLA leave on March 8, April 12,
May 10, June 6, and July 25, 2023, and that Amazon terminated him on August 3, 2023.
Amazon maintains that the five month lapse between his first request in March and his
termination in August is not close enough to establish a causal connection. Although that is
correct, Amazon does not explain why the court can only look to the date Allen first
requested FMLA leave. See Roberts v. Fla. Gas Transmission Co., 447 Fed. Appx. 599, 602
(5th Cir. 2011) (per curiam) (considering whether there was a causal connection between
plaintiff’s termination and his first and second requests for FMLA leave). 	The nine day
period that elapsed between his last request for FMLA leave and his termination is
sufficiently close to establish a causal connection. See Ware v. CLECO Power LLC, 90 Fed.
Appx. 705, 708 (5th Cir. 2004) (per curiam) (concluding that 15 day lapse between protected
activity and termination was sufficiently close to establish prima facie case of retaliation);
Roth v. Canon Sols. Am., Inc., 2019 WL 4597583, at *9 (N.D. Tex. Sept. 23, 2019)
(Rutherford, J.) (concluding that “less than one month” is “close enough temporal proximity
. . . that a legal inference of a causal connection . . . arises”). Thus the court denies Amazon’s
motion to dismiss Allen’s FMLA retaliation claim.
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F
The court now turns to Allen’s common law negligence claim. “A state law claim is
preempted by a federal [or state] statute when the ‘gravamen of a plaintiff’s complaint is of
the type of wrong that the statutory remedy was meant to cover.’” McNeill v. Tyson Fresh
Meats, Inc., 2023 WL 8532408, at *12 (N.D. Tex. Dec. 8, 2023) (Kacsmaryk, J.) (quoting
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808-09 (Tex. 2010)); see also McReynolds
v. Bell Textron, Inc., 2023 WL 2432916, at *4 (N.D. Tex. Feb. 2, 2023) (Ray. J.) (concluding
that tort claim was preempted because it arose out of the same facts as plaintiff’s
discrimination claims), rec. adopted, 2023 WL 2432028 (N.D. Tex. Mar. 9, 2023)
(O’Connor, J.). 	Amazon contends that Allen’s ADA and TCHRA claims preempt his
negligence claim because they are premised on the same set of facts.
The court concludes that Allen’s negligence claim is preempted. This claim arises out
of Amazon’s failure to remove objects in the blind pathway and provide cones, tape, or
signage for the path. 	Likewise, Allen’s ADA and TCHRA claims arise, in part, out of
Amazon’s failure to reasonably accommodate Allen’s requests to remove objects in the blind
pathway and provide cones, tape, or signage for the path. Because Allen is unable to identify
a “separate set of facts” distinct from those supporting his ADA and TCHRA claims “on
which he may stake a negligence claim,” his negligence claim is preempted. See Light v.
Pepperidge Farm, Inc., 2024 WL 1703714, at *2 (N.D. Tex. Apr. 19, 2024) (Pittman, J.);
Grant v. Amazon.com Servs. LLC, 2025 WL 1886766, at *7 (N.D. Tex. June 18, 2025)
(McKay, J.) (explaining that plaintiff’s discrimination claim preempted his tort claim unless
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there were additional facts unrelated to his discrimination claim that would support his tort
claim), rec. adopted, 2025 WL 1885653 (N.D. Tex. July 7, 2025) (Starr, J.); Waffle House,
Inc., 313 S.W.3d at 799 (concluding that TCHRA preempted negligence claim because “the
alleged negligence is rooted in facts inseparable from those underlying the alleged
harassment”).6 Accordingly, the court grants Amazon’s motion to dismiss Allen’s negligence
claim.7
G
In his response brief, Allen requests leave to amend. The court has partially granted
Amazon’s Rule 12(b)(6) motion to dismiss. “[T]he court’s usual practice when granting a
motion to dismiss is to permit a plaintiff at least one opportunity to replead[.]” Shah v. Univ.
of Tex. Sw. Med. Sch., 54 F.Supp.3d 681, 707 (N.D. Tex. 2014) (Fitzwater, C.J.) (citing In
re Am. Airlines, Inc., Priv. Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex. 2005)). And as a
pro se plaintiff, Allen should be given a fair opportunity to plead his best case. See, e.g.,
Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2004 WL 789870, at *1 (N.D. Tex.
Apr. 12, 2004) (Fitzwater, J.) (“Although the court granted Merrill Lynch’s motion to
6The fact that Allen’s ADA and TCHRA claims are barred due to his failure to exhaust
does not negate their preclusive effect. 	In fact, a tort claim can be barred regardless of
whether a statutory claim is actually asserted. See Wiggins v. St. Luke’s Episcopal Health
Sys., 517 Fed. Appx. 249, 252 (5th Cir. 2013) (per curiam) (concluding that TCHRA may
bar tort claim “regardless of whether the plaintiff brings an action under the Act”); see also
Grant, 2025 WL 1886766, at *7 (same).
7The court reached the opposite conclusion in Allen III, but it did so because the
negligence claim in Allen’s amended complaint arose out of a different set of facts from
those giving rise to his discrimination claims. See Allen III, 2025 WL 3059629, at *8
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dismiss, it gave Robinette one more opportunity to plead his best case, because he was
proceeding pro se.”).
Even so, the court has already granted Allen two opportunities to amend his
complaint. And the deficiency that the court has identified with the bulk of Allen’s claims
that are being dismissed cannot be cured, regardless how many more opportunities he is
given to replead. See Mueblas-Curtis v. Am. Airlines, Inc, 2025 WL 3022852, at *10 (N.D.
Tex. Oct. 29, 2025) (Fitzwater, J.) (declining to permit plaintiff to replead Title VII claim
because “she has failed to exhaust this claim and she cannot cure this failure no matter how
many more tries she is given to replead this claim”). Accordingly, the court declines to grant
Allen leave to amend. See, e.g., ABC Arbitrage Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 362
(5th Cir. 2002) (concluding that district court did not abuse its discretion by denying leave
to replead where court had already given plaintiffs an opportunity to do so).
III
The court now turns to Amazon’s motion to compel.
A
Under Rule 26(b)(1), “[u]nless otherwise limited by court order . . . [p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case . . . .” Rule 26(b)(1). And Rule 37 provides
that a party seeking discovery can move for an order compelling production or answers
against another party when the latter has failed to produce documents requested under Rule
34 or to answer interrogatories under Rule 33. Rule 37(a)(3)(B)(iii)-(iv).
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As the party opposing Amazon’s motion to compel, Allen bears the burden of proof.
See Ruiz v. Home Depot U.S.A., Inc., 2023 WL 6166467, at *2 (N.D. Tex. Sept. 21, 2023)
(Fitzwater, J.). “The party resisting discovery must show specifically how each discovery
request is not relevant or otherwise objectionable.” See Gondola v. USMD PPM, LLC, 223
F.Supp.3d 575, 578 (N.D. Tex. 2016) (Horan, J.) (citing McLeod, Alexander, Powel & Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)); see also Orchestrate HR, Inc. v.
Trombetta, 178 F.Supp.3d 476, 506 (N.D. Tex. 2016) (Horan, J.) (“[T]he amendments to
Rule 26(b) and Rule 26(c)(1) do not alter the basic allocation of the burden on the party
resisting discovery to—in order to successfully resist a motion to compel—specifically object
and show that the requested discovery does not fall within Rule 26(b)(1)’s scope of relevance
(as now amended) or that a discovery request would impose an undue burden or expense or
is otherwise objectionable.” (citations omitted)).
Amazon moves to compel Allen to verify his answers to Amazon’s interrogatories;
to amend his responses to Interrogatories Nos. 1, 2, 6, 9, 10, 13, and 17; to amend his
responses and produce documents responsive to RFPs Nos. 1-19, 21, 23-44, 47, 50-51, and
54-58; and to sign the authorizations associated with RFPs Nos. 45-46 and 48-49. Amazon
also requests that the court award it attorney’s fees and costs associated with preparing the
motion to compel.
B
Amazon maintains that Allen has not provided sworn verifications for all of his
interrogatory answers. Rule 33(b)(3) requires that Allen answer interrogatories under oath
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to the extent he has not objected to them. See Rule 33(b)(3). Allen provided supplemental
responses to Interrogatories Nos. 1-7, 9-11, 13-14, and 16-19 that are compliant with this
requirement. But Allen has not similarly answered Amazon’s other interrogatories under
oath. 	Accordingly, Allen must cure the Rule 33(b)(3) deficiency by answering the non-
compliant responses under oath. 	See Samsung Elecs. Am., Inc. v. Yang Kun “Michael”
Chung, 321 F.R.D. 250, 282, 293 (N.D. Tex. 2017) (Horan, J.) (requiring respondent to
comply with Rule 33(b)(3)’s “‘under oath’ requirement” because interrogatories must, to the
extent objections are not raised, be answered under oath).
C
Interrogatory No. 1 requests that Allen identify each person he communicated with
regarding the allegations in his complaint. 	Amazon maintains that Allen’s response is
deficient because he only identified a few individuals by name and referred to general groups
of people. Allen responds that Amazon’s request is unlimited in scope.
Allen has failed to carry his burden. 	Interrogatory No. 1 is limited to identifying
communications regarding Allen’s allegations. The court therefore grants Amazon’s motion
to compel. Allen must provide an amended response that fully answers this interrogatory.
See Ayangbile v. Children’s Health Servs. of Tex., 2025 WL 1182089, at *6 (N.D. Tex. Apr.
22, 2025) (Godbey, C.J.) (requiring plaintiffs to amend their interrogatory response to
“include a list of the names [] of people they have spoken with about the allegations in the
complaint”).
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D
Interrogatory No. 2 requests that Allen identify his efforts to obtain employment after
Amazon terminated him. 	The interrogatory asks him to identify the name, address, and
telephone number of each person, business, or entity he sought employment with, the
position applied for, the salary range, the date of each application, and the result of each
application. Amazon maintains that Allen has not provided this information. For example,
in response to Interrogatory No. 2, Allen states that he had applied to “several other jobs,”
but he does not provide any further information about those jobs. D. App. (ECF No. 79-7)
98. Allen responds that requiring him to provide additional information exceeds the scope
of discovery and that he cannot fabricate non-existent records. Allen has failed to carry his
burden.
He has not shown how this request exceeds the permissible scope of discovery.
Moreover, Allen’s conclusory assertion that he cannot fabricate non-existent records does
not adequately explain why he cannot provide more detail about the employment
opportunities he pursued—regardless whether the information is derived from records or
from his memory. Cf. Kleppinger v. Tex. Dep’t of Transp., 2013 WL 12138545, at *2 (S.D.
Tex. Jan. 3, 2013) (“Courts have interpreted [Rule 33(b)(3)] to mean that it is technically
improper and unresponsive for an interrogatory to refer to outside material[.]” (internal
quotation marks omitted) (citations omitted)). The court grants Amazon’s motion to compel
and orders Allen to provide an amended answer that fully responds to Interrogatory No. 2.
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E
Interrogatory No. 6 requests that Allen identify communications concerning his
factual allegations. 	In his response to Interrogatory No. 6, Allen identifies various
communications that relate to his factual allegations. Amazon contends that it is unable to
locate any of these communications among the documents that Allen has produced.
A party’s motion to compel must meet certain threshold requirements under Rule
37(a). 	For example, a motion to compel must explain “how a response or answer is
deficient.” Woolery v. Doty, 2023 WL 416556, at *1 (N.D. Tex. Jan. 25, 2023) (Fitzwater,
J.) (quoting Yang Kun “Michael” Chung, 325 F.R.D. at 590). Amazon fails to satisfy this
threshold requirement. Amazon does not explain how its inability to locate the documents
that Allen has identified indicates that his response to the interrogatory is deficient. Cf. Rule
33(b)(3) (“Each interrogatory must . . . be answered separately and fully in writing under
oath.”). 	Accordingly, the court denies Amazon’s motion to compel Allen to amend his
response to Interrogatory No. 6.
F
Interrogatory No. 9 requests that Allen identify the disabilities on which he bases his
claims and identify each medical professional who treated, examined, or provided a diagnosis
or opinion related to those disabilities. Amazon maintains that Allen’s response is deficient
because he provided an incomplete list of his disabilities and did not identify any of the
medical professionals who treated his disabilities. 	Allen responds that he disclosed his
disabilities and medical providers.
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The court concludes that Allen’s response is deficient. 	Allen identifies several
disabilities that he contends are relevant to his suit, but he concludes the list with “etc.,”
suggesting that the list is not exhaustive. See D. App. (ECF No. 79-7) 100. He does not
provide specific reasons for why a complete account of the disabilities underlying his claims
would exceed the permissible scope of discovery. 	And he has failed to identify with
specificity the medical professionals who treated or examined him, or who provided a
diagnosis or opinion related to his alleged disabilities. The court grants Amazon’s motion
to compel and orders Allen to provide an amended response that fully answers Interrogatory
No. 9.
G
Interrogatory No. 10 requests that Allen identify each physician, psychologist,
psychiatrist, therapist, counselor, or other health care provider whom he consulted with or
from whom he received an examination, treatment, or an opinion or diagnosis since April 1,
2015. In his answer to Interrogatory No. 10, Allen states that he will identify these medical
professionals, but only the ones who treated his physical, psychological, and emotional
conditions related to the claims in this suit. 	Amazon does not address Allen’s proposed
limitation to the scope of the interrogatory; rather, it contends that Allen’s response is
deficient. Allen responds that he has identified his medical providers.
Allen’s response is deficient. His answer to Interrogatory No. 10 does not provide
identifying information for any medical provider. Moreover, Allen does not explain why this
interrogatory should be limited in the manner he proposes. 	The identities of the medical
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providers who treated Allen over the past ten years may, for example, be relevant to whether
Allen suffered any pre-existing physical or emotional distress, unrelated to the conditions at
issue in this suit, that may be the cause of his damages. See Williams v. NPC Int’1, Inc., 224
F.R.D. 612, 613 (N.D. Miss. 2004) (explaining that, because plaintiffs placed their emotional
conditions at issue, defendant was entitled to discover “information pertaining to any mental
or physical conditions which could have led to the claimed damages, including conditions
which preexisted the employment period at issue”). Accordingly, the court grants Amazon’s
motion to compel and orders Allen to provide an amended response that fully answers
Interrogatory No. 10.
H
Interrogatory No. 13 requests that Allen identify all social media accounts that he has
used since his employment with Amazon. RFP No. 55 requests that Allen produce a copy
of each post that he, or any other person, has made to his social media accounts from the start
of his employment with Amazon to the present. Allen objects to these discovery requests as
overbroad and an invasion of his privacy.
“Generally, [social networking site] content is neither privileged nor protected by any
right of privacy.” Gondola, 223 F.Supp.3d at 591 (alteration in original) (quoting Johnson
v. PPI Tech. Servs., L.P., 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013)). “But neither
do courts generally endorse an extremely broad request for all social media site content.” Id.
Interrogatory No. 13 is not overbroad: it merely requests that Allen identify the social media
accounts that he has used since he began working at Amazon. See Scott v. U.S. Postal Serv.,
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2016 WL 7440468, at *5 (M.D. La. Dec. 27, 2016) (requiring that plaintiff identify all social
media accounts that he has used since the events underlying the suit occurred); Baxter v.
Anderson, 2016 WL 4443178, at *3 (M.D. La. Aug. 19, 2016) (same). 	RFP No. 55,
however, is overbroad, because it requests that Allen produce copies of each social media
post that he made, or that another person made to his social media accounts since he started
working at Amazon. Amazon is not entitled to this degree of access to Allen’s social media.
See Ayangbile, 2025 WL 1182089, at *5 (declining to permit defendant to access “each
social media post the [plaintiffs’] made, or that another person made to their social media
pages” that were unrelated “to the allegations in the complaint”). Accordingly, the court
grants Amazon’s motion to compel with respect to Interrogatory No. 13, but denies it with
respect to RFP No. 55. 	Allen must provide an amended answer that fully responds to
Interrogatory No. 13.
I
Interrogatory No. 17 asks Allen to provide information related to each accommodation
he needed or requested during his employment with Amazon. 	Amazon maintains that
Allen’s answer to this interrogatory is only partially responsive because it fails to identify
when he requested each accommodation, his bases for requesting each accommodation, and
the name and job title of the person from whom he requested the accommodation. Allen
responds that his supplemental response to Interrogatory No. 17 cured this defect and that
requiring him to provide further information is overbroad.
Allen has not met his burden. His supplemental response does not cure the defects
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that Amazon has identified. And Allen has not come forward with specific information that
shows how this request is overbroad. See Ruiz, 2023 WL 6166467, at *5 (concluding that
defendant’s complaint that interrogatory was overbroad was not adequate to voice a
successful objection). 	The court grants Amazon’s motion to compel and orders Allen to
provide an amended answer that fully responds to Interrogatory No. 19.
J
In response to RFPs Nos. 1-19, 21, 23-40, 42-44, 50-51, and 56-58, Allen states that
he has produced, or will produce, the requested documents. Amazon maintains that Allen
has failed to produce documents responsive to these RFPs. And, Amazon adds, to the extent
that Allen has produced documents responsive to these RFPs, he has not adequately
identified which documents correspond to each request, references non-existent Bates
numbers, or references documents that are responsive to the wrong RFP. Allen responds that
he has produced the relevant documents, he cannot produce non-existent documents, and his
supplemental responses cure any issues.
The court finds Allen’s explanations to be inadequate. 	His response to Amazon’s
motion to compel does not adequately identify the documents he contends are responsive to
Amazon’s requests. 	Allen’s conclusory assertion that he cannot produce non-existent
documents, likewise, is insufficient. See Coleman v. Cedar Hill Indep. Sch. Dist., 2022 WL
1470957, at *5 (N.D. Tex. May 10, 2022) (Fitzwater, J.) (explaining that, if no responsive
documents exist, party resisting discovery must so state with “sufficient specificity”).
Moreover, his supplemental responses to the RFPs fail to cure the issues that Amazon has
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identified because they cite to Bates numbers associated with documents that have not been
provided to the court or offer to produce documents that are non-responsive to the relevant
RFP.
To resolve this issue, Allen must provide amended responses to RFPs Nos. 1-19, 21,
23-40, 42-44, 50-51, and 56-58 that identify, by Bates number, the documents that are
responsive to each request. See Steadfast Ins. v. Golden Rests., Inc., 2009 WL 1683605, at
*3 (N.D. Tex. June 16, 2009) (Kaplan, J.) (requiring defendant to “identify documents
responsive to each request by Bates-label number” where parties disagreed as to whether
defendant had produced documents responsive to plaintiff’s RFPs). If there are identified
responsive documents that have not yet been produced, Allen must produce them. And if no
responsive documents exist, Allen must state this with specificity in his amended responses.
See Coleman, 2022 WL 1470957, at *5.
K
RFP No. 41 requests that Allen produce “all medical records . . . evidencing any
medical treatment, counseling, or care that [Allen] received or sought since April 1, 2015 to
the present.” D. App. (ECF No. 79-2) 30.8 RFP No. 45 requested that Allen authorize any
8When discussing RFP No. 41, Amazon groups its discussion of this request with
RFPs Nos. 23, 39, and 40. In his supplemental response to RFPs Nos. 23, 39, and 40-41,
Allen states that he will produce medical records that are responsive to RFPs Nos. 23, 39, and
40, each of which is limited in scope to records related to the conditions Allen placed at issue
in this suit. Yet Allen objects to the scope of RFP No. 41. Because the parties dispute the
scope of RFP No. 41—rather than merely whether Allen has fully responded to it, as with
the other RFPs he grouped it with—the court addresses RFP No. 41 separately.
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and all health care providers to provide Amazon with his medical records and data over the
past 10 years. Allen responded that he would be willing to produce medical records and sign
an authorization limited in scope to records related to the conditions he alleges in his
complaint. He contended that production beyond that scope would not be proportionate to
the needs of this case.
Allen has not met his burden to show that Amazon’s requests are disproportionate.
With RFP No. 41, Allen maintains that he has already produced over a thousand pages of
medical records. He does not, however, provide any of these documents to the court or refer
to them by Bates number such that the court can adequately assess whether the challenged
RFP is disproportionate. Moreover, with RFP No. 45, Allen merely asserts that this release
is unnecessary. 	Because Allen’s objections are inadequate, the court grants Amazon’s
motion to compel Allen to produce medical records responsive to RFP No. 41 and to sign
RFP No. 45’ s authorization to release medical records. See Stogner v. Sturdivant, 2011 WL
4435254, at *5 (M.D. La. Sept. 22, 2011) (“[W]here a plaintiff’s physical or mental health
has been placed at issue . . . the defendant is entitled to explore the truth of the plaintiff’s
allegations that he/she suffered physical or emotional distress as a result of the defendants’
conduct and to determine whether the plaintiff suffered any pre-existing physical or
emotional distress that may be the (or an) actual cause of his/her emotional distress.”);
Balcacer v. Sam’s E. Club Inc, 2020 WL 1934851, at *2 (S.D. Tex. Apr. 22, 2020) (finding
that because plaintiff “squarely put his medical condition at issue,” defendant was “entitled
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to seek medical information relating to his recent and any past injuries”).9
L
RFP No. 46 requests that Allen sign an authorization to release his employment
records. The release is not limited in temporal scope. In his response to RFP No. 46, Allen
provided that he would be willing to sign an authorization that was limited to his employment
records after Amazon terminated him. Amazon maintains that it would be improper to limit
the scope of the release. According to Amazon, Allen’s prior and subsequent employment
records are necessary for it to investigate his mitigation of damages, disclosure of alleged
disabilities, and pre-existing injuries. 	Allen responds that this authorization is broad and
risks yielding irrelevant information.
The court holds that Amazon is entitled to compel Allen to sign an authorization to
release his employment records. Allen has not provided specific information as to how the
authorization is impermissibly broad or what irrelevant information his employment records
from before his time with Amazon may contain. See McLeod, 894 F.2d at 1485 (explaining
that simply objecting to requests as “overly broad, burdensome, oppressive and irrelevant,”
without showing “specifically how each [request] is not relevant or how each question is
overly broad, burdensome or oppressive,” is inadequate to “voice a successful objection”).
9Allen also asserts that these RFPs infringe upon his privacy. 	Yet “[c]ourts have
routinely held that, by putting one’s medical condition at issue in a lawsuit, a plaintiff waives
any privilege to which he may have otherwise been entitled as to his privacy interests in his
medical records.” 	Stogner, 2011 WL 4435254, at *5 (collecting cases). 	Accordingly,
Allen’s privacy objection with respect to his medical records is unavailing. See id.
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Because Allen has not met his burden, the court grants Amazon’s motion to compel with
respect to the authorization to release employment records.
M
RFP No. 47 requests that Allen produce tax returns, with all attachments, that he filed
for the years 2020 to the present. RFP No. 48 requests that he authorize Amazon to obtain
copies of his tax returns from the IRS for the years 2018 to the present. Allen maintains he
has already produced his tax returns for the years 2020 through 2024. Amazon responds that,
since the filing of its motion to compel, Allen has provided it with incomplete and unsigned
tax returns for the years 2020 to 2023, with no W-2 or 1099 forms attached.
Because Allen is seeking compensatory damages for lost wages, his tax returns from
the year he began working at Amazon to the present are relevant to this suit. See Gondola,
223 F.Supp.3d at 588; Williams v. U.S. Env’t Servs, 2016 WL 684607, at *2 (M.D. La. Feb.
18, 2016). Allen does not contest this, as evidenced by his willingness to produce his tax
returns from 2021, when he began working at Amazon, through the present.
Amazon also requests that Allen produce his tax returns for the year 2020 and sign
an authorization form permitting Amazon to obtain his tax returns dating back to 2018. But
Allen’s “earnings prior to [his] employment with [Amazon] are not relevant to [his] cause[s]
of action.” 	Williams, 2016 WL 684607, at *2. 	Although Allen is the party resisting
discovery, courts “generally require a threshold showing of relevance to compel disclosure
of tax information,” given that the documents contain “highly sensitive” information.
McElvy v. Sw. Corr., LLC, 2022 WL 1050312, at *2 (N.D. Tex. Apr. 7, 2022) (Godbey, J.).
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The only argument Amazon advances for the relevance of Allen’s tax information from
before 2021 is related to his mitigation efforts—that these pre-2021 tax returns are necessary
for “comparison purposes since [Allen] contends his blindness limits his ability to obtain
employment.” D. Br. (ECF No. 78) 14. Yet Amazon does not identify where Allen contends
that his blindness limits his ability to obtain employment.10 And in any event, a plaintiff’s
past wages are typically not relevant to a mitigation analysis. See, e.g., Boehms v. Crowell,
139 F.3d 452, 460 (5th Cir. 1998) (“[O]ur focus in a mitigation analysis—and the base from
which all comparisons about whether ‘reasonable efforts’ to obtain comparable work are
made—must be the employment position with respect to which discrimination occurred.”).
The court acknowledges, however, that Allen has attempted to produce a tax return
for the year 2020, the year before he began working at Amazon. Because Allen is willing
to provide his tax return for the year 2020, the court will permit Amazon to obtain this
information. See Tosoh Corp. v. Dental Direkt GmbH, 2025 WL 3562737, at *2 (E.D. Tex.
Dec. 12, 2025) (explaining that defendant’s “representation that it will produce the requested
documents may be taken as an implicit admission that the requested information is relevant”
and mitigates concerns regarding undue burden). Accordingly, Allen must either provide
complete copies of his tax returns from 2020 to the present, or, in the alternative, must
authorize Amazon to obtain his tax returns from 2020 to the present. See Perez v. Trylon
Mfg. Co. Ltd, 2011 WL 13128823, at *3 (N.D. Tex. Aug. 4, 2011) (Stickney, J.) (requiring
10 In response to Interrogatory No. 2, Allen explains that his leg injury, brain
malfunction, and slow recovery have limited his ability to work.
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plaintiff to either execute authorization form or produce tax returns).
Turning to RFP No. 49, this authorization form permits the Social Security
Administration to release Allen’s earning information to Amazon. 	Allen maintains that
authorizing Amazon to obtain his earning information would be cumulative of the
information that Amazon may obtain via his tax returns.11 The court agrees.
Amazon asserts that this authorization would allow it to obtain information about
Allen’s wage history and the mitigation of his damages. But this information is within the
scope of the RFPs related to Allen’s tax returns. 	The court therefore denies, without
prejudice, Amazon’s motion to compel with respect to RFP No. 49. See Coleman, 2022 WL
1470957, at *4 (declining to require plaintiff to produce documents that are “likely
duplicative” of documents that defendant will be able to obtain through other discovery). If
Amazon can demonstrate that certain relevant documents cannot be obtained through the
other RFPs, it may request that Allen produce these specific additional documents or
authorize Amazon to obtain them.
N
RFP No. 54 requests that Allen produce all documents or statements that he believes
constitute evidence of any admission or statement against Amazon. Amazon maintains that
11 This release also requests that Allen authorize Amazon to obtain his earning
information dating back to 2018. But for the same reasons that the court concluded that his
tax returns dating back to 2018 are not relevant, it likewise concludes that his earning
information from the period before his employment at Amazon is not relevant. See Williams,
2016 WL 684607, at *2.
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Allen has asserted boilerplate objections in response to RFP No. 54. Allen responds that this
request is overbroad and that he cannot produce non-existent documents.
Allen has not met his burden. 	To succeed on his objection that this request is
overbroad, Allen “must make specific arguments, supported by evidence, that show why the
request would impose a burden and why that burden is out of proportion to the needs of the
case.” See Alt Platform, Inc. v. Beckett Collectibles, LLC, 2025 WL 836049, at *3 (N.D.
Tex. Mar. 17, 2025) (Godbey, C.J.) (citing Rule 34(b)(2)(B)). Allen has failed to do so. See
id. (overruling plaintiff’s burden objection where it merely contended that the discovery
request was vague, burdensome, and called for documents not in his possession). Moreover,
Allen’s conclusory assertion that he cannot produce non-existent documents is inadequate.
See Lopez v. Don Herring Ltd., 327 F.R.D. 567, 578 (N.D. Tex. 2018) (Horan, J.) (explaining
that “if no responsive documents or tangible things exist . . . the responding party should so
state with sufficient specificity to allow the Court to determine whether the party made a
reasonable inquiry and exercised due diligence” (citation omitted)). Accordingly, the court
grants Amazon’s motion to compel, and orders Allen to produce documents responsive to
RFP No. 54. If no such documents exist, Allen must state this in an amended response with
sufficient specificity.
O
Amazon also requests an award of attorney’s fees and costs under Rule 37. 	Rule
37(a)(5)(C) provides that, if a motion to compel is “granted in part and denied in part,” the
court may “apportion the reasonable expenses for the motion.” Rule 37(a)(5)(C). Amazon
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maintains that it is entitled to an award because Allen failed to disclose relevant information
and interfered with Amazon’s ability to prepare its defense, and Amazon attempted to confer
with Allen multiple times before filing this motion. Allen responds that an award would be
improper because his responses to Amazon’s discovery requests were substantially justified
and he is proceeding pro se.
Under these circumstances, the court concludes that the parties should bear their own
fees and expenses. See Huang v. Big Data Supply Inc., 2021 WL 4816827, at *7 (C.D. Cal.
Aug. 12, 2021) (declining to award expenses where plaintiff was proceeding pro se, provided
deficient responses, and this was defendant’s first motion to compel); People’s Cap. Leasing
Corp. v. Mcclung, 2017 WL 8181529, at *3 (W.D. Tex. Sept. 22, 2017) (similar).
P
The court grants in part and denies in part Amazon’s motion to compel. Allen must
provide Rule 33(b)(3) verifications and amended answers, make the productions, and sign
the authorizations required by this memorandum opinion and order no later than 28 days after
it is filed.
IV
The court now turns to Amazon’s motion to continue various deadlines in this case.12
12 On February 23, 2026 the court vacated the January 30, 2026 deadline for
completion of discovery, the March 6, 2026 deadline for summary judgment motions, the
March 6, 2026 deadline for motions not otherwise covered, and the June 15, 2026 trial docket
setting.
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A
Amazon requests an eight month extension for all outstanding deadlines. At the time
Amazon filed its motion, the deadlines for completion of discovery, for summary judgment
motions, and for motions not otherwise covered were still in place. Amazon also requests
an eight month continuance of the trial setting.
B
Rule 16(b)(4) governs a party’s request to modify a scheduling order. 	Cartier v.
Egana of Switz. (Am.) Corp., 2009 WL 614820, at *2 (N.D. Tex. Mar. 11, 2009) (Fitzwater,
C.J.). “To modify the scheduling order, a party must demonstrate good cause and obtain the
judge’s consent.” Rodrigues v. US Bank Nat'l Ass’n, 2021 WL 2077650, at *1 (N.D. Tex.
May 24, 2021) (Fitzwater, J.) (citing Cartier, 2009 WL 614820, at *2). 	The good cause
standard “require[s] the movant ‘to show that the deadlines cannot reasonably be met despite
the diligence of the party needing the extension.’” Puig v. Citibank, N.A., 514 Fed. Appx.
483, 487-88 (5th Cir. 2013) (per curiam) (quoting S & W Enters., LLC v. SouthTrust Bank
of Ala., N.A., 315 F.3d 533, 535 (5th Cir. 2003)). In determining whether the movant has met
its burden under Rule 16(b)(4), the court considers four factors: “(1) the explanation for the
failure to timely comply with the scheduling order; (2) the importance of the modification;
(3) potential prejudice in allowing the modification; and (4) the availability of a continuance
to cure such prejudice.” 	Squyres v. Heico Cos., 782 F.3d 224, 237 (5th Cir. 2015)
(alterations adopted) (citation omitted). The court considers the four factors holistically and
“does not mechanically count the number of factors that favor each side.” EEOC v. Serv.
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Temps, Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct. 13, 2009) (Fitzwater, C.J.), aff’d, 679
F.3d 323 (5th Cir. 2012).
C
The court first considers Amazon’s explanation. 	Amazon asserts that it could not
comply with the discovery deadline in the scheduling order because, inter alia, of Allen’s
failure to timely produce all requested documents and respond fully to all interrogatories.
It maintains that Allen will need time to cure these discovery deficiencies and that Amazon
will need time to acquire the third-party records that Allen authorizes it to obtain.
The court next considers the importance of the modification. Amazon asserts that the
modification is important because the delay caused by Allen’s inadequate discovery
responses has delayed its ability to take his deposition. Amazon maintains that it will be
better prepared for this deposition after Allen has produced the anticipated information.
Furthermore, given that the court is partially granting Amazon’s motion to compel, it must
allow time for the parties to carry out the procedures provided for under the court’s ruling.
The court also considers the potential prejudice that Amazon’s requested modification
would cause. Amazon asserts that any prejudice to Allen in granting the modification will
be minimal because the discovery issues could have been avoided had Allen “complied with
his discovery obligations in the first instance.” D. Br. (ECF No. 80) 6. Allen responds that
an eight month extension of the deadlines would “inflat[e] costs” and risk “evidence loss.”
P. Resp. (ECF No. 84) 5.
Finally, the court considers the extent to which a continuance would alleviate any
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prejudice. 	Amazon asserts that a continuance of these deadlines for eight months would
allow both parties to comply with the court’s ruling on Amazon’s motion to compel and
“properly prepare for dispositive motions and/or trial.” D. Br. (ECF No. 80) 6.
D
Evaluating the four factors holistically, the court concludes that extensions of the
deadlines at issue are warranted. The court has held above that Allen must be compelled to
amend many of his discovery responses and to engage in additional production. 	Such
discovery will take time. Although, as Allen points out, these extensions may impact his
litigation costs, this consideration does not outweigh the other factors in this analysis, which
point toward allowing extensions. See United States v. Umbrella Fin. Servs., LLC, 2024 WL
117153, at *4-5 (N.D. Tex. Jan. 10, 2024) (Fitzwater, J.) (concluding under similar
circumstances that plaintiffs were entitled to six month extension of the discovery and other
deadlines).
E
The court therefore amends the February 10, 2025 scheduling order so that the
following deadlines apply:
The parties must complete discovery and file a joint estimate of trial length and joint
status report concerning the progress of settlement negotiations no later than September 30,
2026.
A party must file a motion for summary judgment no later than November 6, 2026.
A party must file a motion not otherwise covered by this order no later than November
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6, 2026.
The court continues the trial setting to the two-week docket of February 16, 2027.
* 	* 	*
For the reasons explained, the court grants Amazon’s motion to continue, and grants
in part and denies in part Amazon’s motions to dismiss and to compel.
SO ORDERED.
March 19, 2026.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
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