United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant American
Airlines's (“AA”) motion to dismiss, pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for
lack of subject matter jurisdiction and failure to state a
claim upon which relief can be granted. (DE 15).
Plaintiff's time for response has expired. In this
posture, the issues raised are ripe for ruling. For the
reasons that follow, defendant AA's motion is granted.
With regard to defendant Envoy Air (“EA”), where
the court directed plaintiff August 30, 2017, to show cause
within 14 days thereof why service was not made upon
defendant EA within 90 days of filing of the complaint, or
face dismissal, (DE 18), no response having been made, the
court also dismisses plaintiff's claims against defendant
proceeding pro se, initiated this action on May 9,
2017 by filing application to proceed in forma pauperis,
together with a proposed complaint. Plaintiff's
complaint, consisting of a few sentences, proceeds as
follows. First, plaintiff asserts that defendants engaged in
“[g]ender bias, discrimination against pregnant
employee, wrongful termination, [and] defamation of
character.” (DE 1-1, p. 2). Second, plaintiff notes
that she seeks loss of wages, compensation for her pain and
suffering, and reinstatement of her job. (Id. at 4).
20, 2017, defendant AA filed the instant motion to dismiss.
In support of its motion, defendant submitted a memorandum of
law along with affidavits of Michael Waldron
(“Waldron”)and Susan Somma-Servidio
(“Somma-Servidio”). Through Waldron, defendant AA
offers testimony that it has no record from and after 2007 of
employing plaintiff or receiving any employment application
from her. Through Somma-Servidio, defendant AA offers
testimony that from and after October 2010, when Servidio
assumed her position, no charge of discrimination has been
filed against it on her behalf with the Equal Employment
Opportunity Commission (“EEOC”). Defendant AA
contends that the court lacks subject matter jurisdiction
over plaintiff's claims and, relatedly, that
plaintiff's claims are legally and factually insufficient
and fail to state a claim upon which relief can be granted.
well-established that courts must, as here, liberally
construe pro se complaints and “a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). However, courts “cannot ignore a clear failure
to allege facts” that set forth a cognizable claim.
Johnson v. BAC Home Loans Servicing, LP, 867
F.Supp.2d 766, 776 (E.D. N.C. 2011).
Federal Rule of Civil Procedure 8, a pleading that states a
claim for relief must contain “a short and plain
statement of the grounds for the court's jurisdiction . .
. [and] a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(1), (2). “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations, '
but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted)). In further reliance on Twombly,
the Court in Iqbal added “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do'. . . . [n]or does a complaint suffice it if
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
at 678 (quoting Twombly, 550 U.S. at 557).
quoting Twombly, the Court in Iqbal held
that “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). The Court continued, “[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.”
Id. (quoting Twombly, 550 U.S. at 556). In
amplifying upon the plausibility standard the Court in Iqbal
held that “it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id.
under Twombly's construction of Rule 8, where
plaintiff's allegations must plausibly suggest
entitlement to relief “reflect[ing] the threshold
requirement of Rule 8(a)(2) that the ‘plain
statement' possess enough heft to ‘sho[w] that the
pleader is entitled to relief, '” 550 U.S. at 557,
adhered to in Iqbal, plaintiff's bare
allegations that defendant deprived her of certain rights
with respect to her employment are insufficient to nudge her
claims “‘across the line from conceivable to
plausible.'” 556 U.S. at 681 (quoting
Twombly, 550 U.S. at 570)
where plaintiff's allegations are liberally construed,
the complaint fails to allege any facts regarding
defendant's conduct that might state a cognizable claim
for deprivation of plaintiff's rights under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. (“Title VII”).Where plaintiff merely cites
her legal claims, with no accompanying facts, she does not
state a claim to relief that is plausible on its face, and
therefore her complaint must be dismissed pursuant to Rule
12(b)(6). See Iqbal, 556 U.S. at 677;
Twombly, 550 U.S. at 570.
court does not address defendant AA's alternative
argument predicated upon Rule 12(b)(1). It gives no deference
to the testimony offered in its consideration of
defendant's motion pursuant to Rule 12(b)(6) as such
would convert the motion to one made on Rule 56 grounds.
Necessarily, then, dismissal here is without prejudice.
regard to defendant Envoy Air (“EA”), the court
previously directed plaintiff to demonstrate cause within 14
days of receipt of the court's notice why service was not
made upon defendant EA within 90 days of filing of the
complaint. (See DE 18). The court indicated that
failure to respond would result in dismissal of defendant EA
without prejudice. (Id.). Where plaintiff's