United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon Defendants' partial
Motion to Dismiss (Doc. No. 28) pursuant to Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff responded (Doc. No. 37), and Defendant replied to
Plaintiff's response (Doc. No. 39). This matter is now
ripe for review. For the following reasons, the Court DENIES
Niloufar Saniri, is a former employee of Defendant,
Christenbury Eye Center (“CEC”). (Doc. No. 23, p.
2). Defendant, Jonathan Christenbury, M.D., is the majority
shareholder of CEC, and Defendant, Ellie Pena-Benarroch, is
its Chief Operating Officer. Id. at 3.
about July 11, 2017, Plaintiff filed her action against
Defendants in Mecklenburg County Superior Court. (Doc. No. 1,
p. 2). Defendants timely filed a Notice of Removal on August
11, 2017, asserting federal question jurisdiction. On October
3, 2017, Plaintiff filed her corrected Amended Complaint
stating the following eight causes of action: (1) violations
of Title VII based on sex, quid pro quo sexual
harassment, hostile work environment based on sex,
retaliation, and wrongful termination against CEC and Dr.
Christenbury; (2) wrongful discharge in violation of public
policy based on sex against CEC and Dr. Christenbury; (3)
assault against CEC and Dr. Christenbury; (4) battery against
Dr. Christenbury and CEC; (5) intentional infliction of
emotional distress against CEC and Dr. Christenbury; (6)
intentional infliction of emotional distress against
Pena-Benarroch; (7) North Carolina Wage and Hour violations
against all Defendants; and (8) breach of contract against
CEC and Dr. Christenbury. (Doc. No. 23, p. 36-53).
claims stem from Plaintiff's employment relationship with
Defendants beginning at an undisclosed time in the fall of
year 2014. Id. at 23. Plaintiff alleges that she
worked in a marketing capacity with CEC but also performed
personal assistant services for Dr. Christenbury for which
she was paid in cash. Id. During her tenure with
CEC, Plaintiff alleges that she was subjected to sexual
harassment, hostile work environment, retaliation,
intentional infliction of emotional distress, and wrongful
termination. Id. at 1. Plaintiff filed two charges
of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and received notices of right
to sue on or about March 31, 2017. Id. at 4.
filed this Motion to Dismiss on October 31, 2017. (Doc. No.
28). Plaintiff responded (Doc. No. 37), Defendants Replied
(Doc. No. 39), and this motion is now ripe for review.
STANDARD OF REVIEW
has the burden of proving that subject matter jurisdiction
exists. See Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
The existence of subject matter jurisdiction is a threshold
issue the court must address before considering the merits of
the case. Jones v. Am. Postal Workers Union, 192
F.3d 417, 422 (4th Cir. 1999). When a defendant challenges
subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1), “the district court is to regard the
pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Richmond, 945 F.2d at 768. The district court should
grant the Rule 12(b)(1) motion to dismiss “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Id. See also Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999).
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, 556 U.S. 662, 697 (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, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. The Supreme Court has also
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
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(quoting Twombly, 550 U.S. at 555-56) (internal
Plaintiff's Title VII claims against Dr. ...