United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM AND RECOMMENDATION
MATTER is before the Court on “Defendant
Zaxby's Franchising LLC's Motion to Dismiss
Plaintiff's Complaint, ” Doc. 7, filed August 31,
2018, and the parties' associated briefs and exhibits,
Docs. 8, 12 and 13.
matter was referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) on November 7, 2018,
and this Motion is now ripe for consideration. Having
carefully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendant Zaxby's Franchising LLC's Motion to
Dismiss be granted, as discussed below.
FACTUAL AND PROCEDURAL BACKGROUND
an employment discrimination action brought pursuant to Title
VII of the 1964 Civil Rights Act (“Title VII”) as
amended, 42 U.S.C. § 2000e et seq. Plaintiff is
fifty-one year old black male who asserts claims for
discrimination, harassment, retaliation and termination of
employment against his employer Zaxby's. He previously
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). On April 20,
2018, the EEOC issued a Dismissal and Notice of Rights.
See Doc. 1-1. On July 12, 2018, Plaintiff filed this
Complaint. Doc. 1. Plaintiff only alleges claims against
“Zaxby's” in his Complaint. However, he
listed two “Zaxby's” as named Defendants- one
located in Marion, North Carolina and another in Athens,
Georgia. In Defendants' Answer, Doc. 6, they acknowledge
that the Zaxby's corporate entities that were served are
Garbar, LLC and Zaxby's Franchising LLC
filed this Motion to Dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(6) and 12(c) for failure to state a
claim upon which relief can be granted.
reviewing a Rule 12(b)(6) motion, “the court should
accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563. 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, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “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, the Supreme Court articulated a two-step
process for determining whether a complaint meets this
plausibility standard. First, the court identifies
allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth. Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555) (allegation that government officials adopted
challenged policy “because of” its adverse
effects on protected group was conclusory and not assumed to
be true). Although the pleading requirements stated in
“Rule 8 [of the Federal Rules of Civil Procedure]
mark a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era ... it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Id. at
to the extent there are well-pleaded factual allegations, the
court should assume their truth and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 679. “Determining whether a complaint
contains sufficient facts to state a plausible claim for
relief “will ... be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief, '” and therefore
should be dismissed. Id. (quoting Fed.R.Civ.P.
sufficiency of the factual allegations aside, “Rule
12(b)(6) authorizes a court to dismiss a claim on the basis
of a dispositive issue of law.” Sons of Confederate
Veterans v. City of Lexington, 722 F.3d 224, 228 (4th
Cir. 2013) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)). Indeed, where “it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations, a claim must be
dismissed.” Neitzke v. Williams, 490 U.S. at
328; see also Stratton v. Mecklenburg Cnty. Dept. of Soc.
Servs., 521 Fed.Appx. 278, 293 (4th Cir. 2013)). The
court must not “accept as true a legal conclusion
couched as a factual allegation.” Anand v. Ocwen
Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).
Court is mindful of the latitude extended to the pleadings of
pro se litigants. See Haines v. Kerner, 404
U.S. 519, 520 (1972) (courts should “[c]onstru[e] [a
pro se] petitioner's inartful pleading
liberally”). However, courts cannot act as the pro
se plaintiff's advocate or develop claims which the
plaintiff failed to raise clearly on the face of his
complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th
Cir. 1978) (recognizing that district courts are not expected
to assume the role of advocate for the pro se plaintiff).
See also Brock v. Carroll, 107 F.3d 241, 243 (4th
Cir. 1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Thus, even
a pro se plaintiff's claim for relief
“requires more than labels and conclusions....”
Twombly, 550 U.S. at 555. Like plaintiffs who are
represented by counsel, a pro se plaintiff must
still “allege facts sufficient to state all the
elements of [the] claim.” Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Accordingly, conclusory statements with insufficient factual
allegations, even when asserted by a pro se
plaintiff, will not survive a motion to dismiss under Rule
complaint fails to allege a single fact against a defendant,
the complaint is properly dismissed as to that defendant.
Quillen v. Allstate Corp., No. 1:14-cv-00015-MR-DLH,
2014 WL 6604897, at *6 (W.D. N.C. Nov. 20, 2014); see
also, Sylvia v. Bank of America, NA, No.
1:12-cv-04036-WSD-JFK, 2013 WL 12109517, at *4 (N.D.Ga. Feb.
6, 2013). Plaintiff's Complaint fails to allege any facts
related to ZFL with the exception of its physical address in
Athens, Georgia. Plaintiff does not allege that he was
employed by ZFL or that ZFL exercised control over him.
Plaintiff does not allege any wrongdoing on ZFL's part or
any of its officers, directors or employees.
a single factual allegation against ZFL, Plaintiffs Complaint
plainly fails to state a plausible claim for relief against
this Defendant. The undersigned respectfully recommends that
Defendant's Motion to Dismiss be granted and the
Complaint against ZFL be dismissed.