United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on defendant's Motion
to Dismiss. Plaintiff, who is proceeding pro se, was advised
in accordance with Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975) of the necessity of responding, advised
of the consequences of not responding, and allowed additional
time to file a response to the dispositive motion. See Orders
(#9). Plaintiff has not filed a response within the time
allowed. Having considered defendant's motion and
reviewed the pleadings, the Court enters the following Order
dismissing this action.
considering the motions to dismiss, the Court has drawn all
facts and inferences from the Complaint in a manner most
favorable to plaintiff. In 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 plaintiff
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] plaintiff'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 plaintiff 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
plaintiff 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 plaintiff 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.
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 plaintiff 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).
the plaintiff has not responded to the Motion to Dismiss. The
Court has, therefore, closely considered the defendant's
motion and supporting memorandum as the Court's duty does
not end when a pro se party fails to respond. Having read the
Complaint (#1) liberally, plaintiff contends that there was a
“trespass upon [her] property” that began on
March 4, 2008. Id. at 1. For relief, plaintiff
demands “immediate restoration of property” and
$2, 260, 201.58 in monetary compensation. While it would be
reasonable to infer that plaintiff is upset with some sort of
legal action taken by the named-defendant's employer,
Bank of America, N.A., against her property, there are no
factual allegations that would support any claim, much less
trespass, by the named defendant. It is well settled that
neither an officer nor a director is personally liable for
torts committed by the corporation merely by virtue of the
office they hold. Oberlin Capital L.P. v. Slavin,
147 N.C.App. 52, 57 (2001). The Court has searched the
Complaint and the individual defendant is not mentioned
anywhere, except in the caption.
the Court has considered whether plaintiff has alleged
plausible facts that would support an action for trespass.
The essential elements of a claim for civil trespass are: (1)
that the plaintiff was in possession of real property at the
time of trespass; (2) that defendant, without authorization,
unlawfully entered such real property; and (3) that plaintiff
sustained damage as a result of the unlawful entry.
Broughton v. McClatchy Newspapers, Inc., 161
N.C.App. 20, 32 (2003). The Complaint fails to identify the
property, who owned the property or had an interest in the
property, when the named defendant entered her property, or
the sources of her claim for damages, which exceeds two
million dollars. The Court, therefore, concludes that the
Complaint fails to state a claim.
final consideration is whether this dismissal should be with
or without prejudice. Because an employee cannot be held
individually liable for the alleged torts of his or her
employer, that error cannot be cured by amendment and the
Rule 12(b)(6) dismissal for this reason will be with
prejudice. Goode v. Cent. Virginia Legal Aid Soc'y,
Inc., 807 F.3d 619, 624 (4th Cir. 2015).
IS, THEREFORE, ORDERED that defendant's Motion
to Dismiss (#8) is GRANTED, and this action
as against this ...