United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge.
MATTER is before the court on defendant
(“Curtiss-Wright”) Motion to Dismiss. Plaintiff
Anthony Parker (“Parker”) has filed a Motion to
Strike Reply; however, the Reply was appropriately filed by
Curtiss-Wright under the Local Civil Rules of this Court and
properly addresses arguments and evidence Parker has asserted
for the first time in his extensive Response. The Motion to
Strike Reply will be denied and the Court will herein
consider Curtiss-Wright's Motion to Dismiss, Parker's
Response, and the Reply.
Parker's third civil action against an employer, or a
purported employer, filed in 2017 in this Court. See
3:17-cv-00041-MOC-DCK (W.D. N.C. ); 3:17-cv-00411-FDW-DCK
(W.D. N.C. ).
fourth action, which was removed to this Court,
Parker v. Owens, 3:17-cv-720 (W.D. N.C. ), Parker
has already attempted to litigate the same termination
complained of in this action. There, Parker named his
supervisor as defendant, who, just like plaintiff, was
employed by Metal Improvement Company, LLC
(“MIC”). This Court dismissed that action as a
claim against a supervisor is not viable under well settled
law. See Id., Order (#21). That determination is on
appeal to the Court of Appeals for the Fourth
response to the Complaint, Curtiss-Wright moved to dismiss
under Rule 12(b)(6), Federal Rules of Civil Procedure. Motion
to Dismiss (#13). After the Motion to Dismiss was filed, a
Roseboro Notice was entered by the Court. Order
(#15). Parker timely filed a Response (#16) and
Curtiss-Wright timely filed a Reply (#17). The Court has
fully considered both the Complaint and Parker's Response
(#16), which contains a Memorandum of Law (#16-1) and annexed
materials, as well as an attachment (#16-2), which appears to
a copy of defendant's supporting brief that has been
marked up by plaintiff. The significance of that particular
filing is not readily apparent.
reasons that follow, and after considering the Response and
the Reply, the Court has determined that Parker has failed to
state any actionable claim against Curtiss-Wright or, for
that matter, his actual employer MIC.
Rule 12(b)(6) Standard
determining whether a claim can survive a motion under Rule
12(b)(6), the Supreme Court held in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) that the “no set
of facts” standard only describes the “breadth of
opportunity to prove what an adequate complaint claims, not
the minimum adequate pleading to govern a complaint's
survival.” Id. at 563. The Court specifically
rejected use of the “no set of facts” standard
because such standard would improperly allow a “wholly
conclusory statement of claim” to “survive a
motion to dismiss whenever the pleadings left open the
possibility that a Parker might later establish some
‘set of [undisclosed] facts' to support
recovery.” Id. at 561 (alteration in
original). Post Twombly, to survive a Rule 12(b)(6)
motion to dismiss, a claimant must allege facts in his
complaint that “raise a right to relief above the
speculative level.” Id., at 555.
[A] Parker's obligation to provide the
“grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do . . . .
Id. (second alteration in original; citation
omitted). Further, a complaint will not survive Rule 12(b)(6)
review where it contains “naked assertion[s] devoid of
further factual enhancement.” Id., at 557.
Instead, a claimant must plead sufficient facts to state a
claim for relief that is “plausible on its
face.” Id. at 570 (emphasis added).
the Court revisited the Rule 12(b)(6) pleading standard in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). In
Iqbal, the Court determined that Rule 8
“demands more than an unadorned, the
Id. at 678. The Court explained that, “to
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. (citing Twombly,
supra; emphasis added). What is plausible is defined
by the Court:
[a] claim has facial plausibility when the Parker pleads
sufficient factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
Id. This “plausibility standard”
requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. Thus, a
complaint falls short of the plausibility standard where a
Parker pleads “facts that are ‘merely consistent
with' a defendant's liability ....”
Id. While the court accepts plausible
factual allegations made in a claim as true and considers
those facts in the light most favorable to Parker in ruling
on a motion to dismiss, a court “need not accept as
true unwarranted inferences, unreasonable conclusions, or
arguments.” Eastern Shore Mkt.'s Inc. v. J.D.
Assoc.'s, LLP, 213 F.3d 175, 180 (4th Cir. 2000).
when ruling on a Rule 12(b)(6) motion, “a judge must
accept as true all of the factual allegations contained in
the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (citations omitted). A
complaint “need only give the defendant fair notice of
what the claim is and the grounds upon which it rests.”
Id., at 93 (alteration and internal quotation marks
omitted). However, to survive a motion to dismiss, the
complaint must “state[ ] a plausible claim for
relief” that “permit[s] the court to infer more
than the mere possibility of misconduct” based upon
“its judicial experience and common sense.”
Iqbal, 129 S.Ct. at 1950. To survive a motion to
dismiss, a Parker need not demonstrate that her right to
relief is probable or that alternative explanations are less
likely; rather, she must merely advance her claim
“across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570. If her explanation is
plausible, her complaint survives a motion to dismiss under
Rule 12(b)(6), regardless of whether there is a more
plausible alternative explanation. “[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007).
Considering the Pleadings of a Pro Se
must also be mindful of the fact that pro se
complaints are held to “less stringent standards than
formal pleadings drafted by lawyers.” Haines v.
Kerner, 404 U.S. 519, 520 (1972) (reversing dismissal of
a pro se complaint since the court “cannot say
with assurance that under the allegations of the pro se
complaint . . . it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”) (internal citations and
quotations omitted). That said, even a pro se
complaint must plead “more than labels and
conclusions.” Giarratano, 521 F.3d at 304 n.
5; see also Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003)
(holding that a pro se plaintiff must still
“allege facts sufficient to state all the elements of
[his] claim”). Finally, “district courts cannot
act as the pro se plaintiff's advocate and
cannot develop claims which the plaintiff failed to clearly
raise on the face of [his] complaint.” Douglas v.
U.S. Airways Group, Inc., 2011 U.S. Dist. LEXIS 49643,
*8 (W.D. N.C. 2011) (citing Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978)).
Parker's Factual Contentions
considering the Motion to Dismiss, the Court has taken the
allegations of the Complaint as true. The following summary
is drawn from the Complaint.
interviewed with Shawn Owens (“Owens”), a
business unit manager for MIC for a Supervisor position in
July 2017. Owens offered Parker the position of Shift
Supervisor. MIC hired Parker, with Owens as his supervisor,
on July 24, 2017. Complaint (# 1) at ¶¶ 15-18.
Parker was terminated from that employment on September 18,
2017. Id. at ¶38.
Parker's first week on the job, Owens counseled Parker
over his inability to operate a classifier machine.
Id. at ¶ 19. Parker claims that on this
occasion, just days after Owens interviewed Parker and
offered him his ...