United States District Court, W.D. North Carolina, Charlotte Division
C. KEESLER UNITED STATES MAGISTRATE JUDGE
MATTER IS BEFORE THE COURT on “Defendant's
Motion To Dismiss” (Document No. 7). 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 direct that
the motion be denied.
se Plaintiff Manuel Garcia Zapata
(“Plaintiff” or “Zapata”) initiated
this action with the filing of a form “Complaint”
(Document No. 1-1, pp. 2-4) in the Superior Court of
Mecklenburg County, North Carolina on November 22, 2017. The
Complaint identifies Lyft Transportation Network Company as
Defendant. (Document No. 1-1, p. 2). Plaintiff alleges
wrongful acts by Defendant including: “Defamation of
character;” “Unfairly Trained by the Company,
Correspondence made Public” and “the claim
against me affects my integrity and my political
asylum.” Id. The Complaint seeks an award of
$200, 000.00. (Document No. 1-1, p. 3).
Lyft, Inc. (“Lyft” or “Defendant”)
filed a “Notice Of Removal” (Document No. 1) with
this Court on January 4, 2018. Lyft contends that removal is
appropriate based on diversity jurisdiction. (Document No. 1,
p. 2). Lyft also notes that it has been incorrectly named in
the Complaint. (Document No. 1, p. 1).
January 31, 2018, Lyft filed the pending
“Defendant's Motion To Dismiss” (Document No.
7) and a “…Memorandum in Support…”
(Document No. 8). Lyft seeks dismissal pursuant to
Fed.R.Civ.P. 12(b)(2), (4), (5), and (6). In short, Defendant
contends that the Complaint has never been properly served,
and that it is completely devoid of any factual
content supporting the alleged claims. Id.
failed to file a timely response to the motion to dismiss;
however, the Court issued an “Order” (Document
No. 7) pursuant to Roseboro v. Garrison on March 8,
2018, and advised Plaintiff that he had a right to respond to
the motion to dismiss and that failure to respond would
likely lead to dismissal of his lawsuit. Plaintiff's
deadline to respond was re-set to March 23, 2018. (Document
No. 9). On March 22, 2018, Plaintiff timely requested an
extension of time. (Document No. 10). The deadline to respond
to the motion to dismiss was then re-set to April 6, 2018.
(Document No. 11).
April 6, 2018, Plaintiff filed a document captioned as a
“Complaint, ” which asserted in the first line
that “It is by respond of “Defendant's Motion
to Dis[mi]ss”, (Document No.7).” (Document No.
12). The Clerk's Office has construed this filing as a
response to the motion to dismiss; however, the undersigned
is inclined to find that Plaintiff intended to file an
Amended Complaint. See (Document No. 12).
Plaintiff's second “Complaint” is remarkably
similar to the original Complaint (Document No. 1-1, pp. 2-4)
and seems to assert a new claim for “psychological
damage.” (Document No. 12, p. 2). In addition,
Plaintiff has revised, but reduced, his demand for damages -
to $75, 000.00. (Document No. 12, p. 3).
reply, Defendant notes that Plaintiff's response
“wholly fails to address any arguments, both procedural
and substantive, made in support of Lyft's Motion to
Dismiss.” (Document No. 14, p. 1) (citing Document Nos.
8 and 12). Defendant goes on to assert that if the Court
considers Plaintiff's filing to be an Amended Complaint,
it does not adequately address the deficiencies Defendant has
already identified - it still has not been properly served
and still does not include any factual support. (Document No.
14, pp. 1-2). Defendant concludes that the amendment is
futile, and therefore, dismissal is required. (Document No.
14, p. 2).
STANDARD OF REVIEW
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
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 ...