United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
DAVID C. KEESLER, Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on the "Corporate Defendants' Motion To Dismiss The First, Second, Fourth And Fifth Causes Of Action In Plaintiff's Amended Complaint" (Document No. 26). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and is now ripe for disposition. Having carefully considered the arguments, the record, and the applicable authority, the undersigned will respectfully recommend that the motion be granted.
Kimberly Crawford-Kariem ("Plaintiff") filed the original "Complaint" (Document No. 1-1) initiating this action in the Superior Court of Mecklenburg County, North Carolina, Case No. 14-CVS-680, on January 13, 2014. On February 21, 2014, Defendants Time Warner Cable Business, LLC, Time Warner Cable Enterprises LLC, Time Warner Cable Information Services (North Carolina), LLC, Time Warner Cable Internet LLC, Time Warner Cable Media Inc., and Time Warner Cable Southeast LLC (the "Corporate Defendants") filed a "Notice Of Removal" (Document No. 1) with this Court. The Corporate Defendants contend in the "Notice Of Removal" that they are not proper parties to this action, but that they are willing to stipulate to a corrected caption naming TWC Administration LLC, the actual entity that employed Plaintiff. (Document No. 1, p.1, n.1); see also, (Document No. 27, p.1, n.2).
The Corporate Defendants filed a "Motion To Dismiss Plaintiff's First, Second And Fourth Causes Of Action" (Document No. 10) on March 21, 2014. However, on April 21, 2014, the undersigned issued a "Memorandum And Recommendation And Order" (Document No. 22) granting Plaintiff's "Motion To Amend" (Document No. 14), and recommending that the "Motion To Dismiss Plaintiff's First, Second and Fourth Causes Of Action" (Document No. 10) be denied.
Plaintiff's "Amended Complaint" (Document No. 24) was filed on April 24, 2014. The undersigned's "Memorandum And Recommendation And Order" (Document No. 22) was affirmed by the Honorable Max O. Cogburn, Jr. on April 30, 2014. (Document No. 25).
On May 12, 2014, the now pending "Corporate Defendants' Motion To Dismiss The First, Second, Fourth And Fifth Causes Of Action In Plaintiff's Amended Complaint" (Document No. 26) was filed with the Court. The Corporate Defendants seek dismissal pursuant to Fed.R.Civ.P. 12(b)(6). "Plaintiff's Memorandum Of Law In Opposition..." (Document No. 28) was filed on May 30, 2014; and the "Reply In Support Of The Corporate Defendants' Motion To Dismiss..." (Document No. 29) was filed on June 9, 2014. As such, the pending motion is now ripe for review and a recommendation to Judge Cogburn.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the "legal sufficiency of the complaint" but "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). "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." Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
The Supreme Court has also opined that
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." Specific facts are not necessary; the statement need only "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Twombly, 550 U.S. at 555-56).
"Although for the purposes of this motion to dismiss we must take all the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). The court "should view the complaint in the light most favorable to the plaintiff." Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th Cir. 1993).
By the instant motion, the Corporate Defendants seek dismissal of four out of five of Plaintiff's causes of action. (Document No. 26). The Corporate Defendants do not seek dismissal of Plaintiff's age discrimination claim. Id.
In addition, the Corporate Defendants note that the individual Defendants Adam Crain ("Crain") and Calvin Linder ("Linder") (together, "Individual Defendants") have not been served to date, and that the pending motion to dismiss is only on behalf of the six (6) Corporate Defendants. (Document Nos. 26 and 27, p.1, n.1). The Corporate Defendants also re-state their position that they are not proper parties to this lawsuit. (Document No. 27, p.1, n.1). To date, it does not appear that Plaintiff has addressed the Corporate Defendants' ...