United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR UNITED STATES DISTRICT JUDGE
MATTER is before the court on defendants Jerry Richardson
(“Richardson”) and Bonnie Creighton's
(“Creighton”) Motion to Dismiss. An Order (#14)
was entered February 23, 2018, advising the pro se plaintiff
of the pendency of the motion, the possible consequences if
the motion were to be granted, and the procedure to be used
in responding to the motion. Having considered
defendants' motion and reviewed the pleadings, including
plaintiff's Response (#15) and the Reply (#16), the court
enters the following Order.
proceeding pro se, filed this action on January 11,
2018, contending that he was discriminated
against under Title VII of the Civil Rights Act of
1964 (“Title VII”) while working for the Carolina
Panthers in its Guest Relations Department as an Elevator
Operator and Ticket Taker Team Member during the 2011 season.
(#12, pgs. 6, 8). Plaintiff alleges that on April 4, 2012,
the Panthers terminated his employment due to a bad credit
report (based on their hiring criteria and consumer report)
and that he thus suffered an adverse employment action. (#12,
pg. 6). Plaintiff further alleges that his termination was
actually based on race or color. Id.
have moved to dismiss this action under Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. They argue
that plaintiff failed to exhaust his administrative remedies,
his claims are barred by applicable statutes of limitations,
and his claims cannot be asserted against individuals instead
of his employer. (#13, p. 9).
Rule 12(b)(1) Standard
12(b)(1) provides for dismissal where the court lacks
jurisdiction over the subject matter of the lawsuit. Lack of
subject-matter jurisdiction may be raised at any time either
by a litigant or the court. Mansfield, C. & L.M.R.
Co. v. Swan, 111 U.S. 379, 382 (1884). The ability of
the court to independently address subject-matter
jurisdiction is important to finality inasmuch as a litigant,
even one who remains silent on the issue of jurisdiction, may
wait until they receive an adverse judgment from a district
court and raise the issue of subject-matter jurisdiction for
the first time on appeal, thereby voiding the judgment.
Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed.
229 (1804). The Federal Rules of Civil Procedure anticipate
this issue and provide that “[w]henever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss
the action.” Fed.R.Civ.P. 12(h)(3).
court considers subject-matter jurisdiction, plaintiff has
the burden of proof. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). In Richmond, Fredricksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765 (4th
Cir. 1991) (Ervin, C.J.), the Fourth Circuit Court of Appeals
In determining whether jurisdiction exists, the district
court is to regard the pleadings' allegations as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for
summary judgment. Id.; Trentacosta v. Frontier
Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.
1987). The district court should apply the standard
applicable to a motion for summary judgment, under which the
nonmoving party must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
exists. Trentacosta, supra, 813 F.2d at 1559 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106
S.Ct. 2548, 2552-53 (1986)). The moving party should prevail
only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of
law. Trentacosta, supra, 813 F.2d at 1558. A
district court order dismissing a case on the grounds that
the undisputed facts establish a lack of subject matter
jurisdiction is a legal determination subject to de novo
appellate review. Revene v. Charles County
Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989);
Shultz v. Dept. of the Army, 886 F.2d 1157, 1159
(9th Cir. 1989).
Id., at 768-69. Where jurisdictional facts are
intertwined with facts central to the substance of a case, a
court must find that jurisdiction exists and consider and
resolve the jurisdictional objection as a direct attack on
the merits of the case. United States v. North
Carolina, 180 F.3d 574, 580 (4th Cir. 1999).
Rule 12(b)(6) Standard
12(b)(6) motion “challenges the legal sufficiency of a
complaint.” Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009). To survive such a
motion, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully, ” as
“threadbare recitals of the elements of a cause of
action supported by mere conclusory statements” are
insufficient to defeat a Rule 12(b)(6) motion. Id.;
see also Twombly, 550 U.S. at 547 (complaints will
be dismissed when plaintiffs “have not nudged their
claims across the line from conceivable to plausible”);
Aziz v. Alcolac, Inc., 658 F.3d 388, 391
(4th Cir. 2011).
“a short and plain statement of the claim showing that
the pleader is entitled to relief” is required.
Fed.R.Civ.P. 8(a)(2). Specific facts are not required;
defendants need only “fair notice of what the . . .
claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Twombly, 550 U.S. at 544). For purposes of
the motion, the factual allegations in the complaint are
accepted as true and viewed in the light most favorable to
the non-moving party, Coleman v. Md. Court of
Appeals, 6266 F.3d 187, 189 (4th Cir. 2010),
though the court need not accept “unwarranted
inferences” or “unreasonable arguments.”
Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008). The court also notes that
“[a] Rule 12(b)(6) motion ‘does not resolve
contests surrounding the facts, the ...