United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Defendant PSA Airlines,
Inc.'s Motion to Dismiss (Swaringer v. PSA Airlines,
Inc., No. 3:18-cv-00531-FDW-DCK, Doc. No. 6) (hereafter
“Swaringer II”) pursuant to the Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) and Local Rule
7.1. Because Plaintiff appears pro se, the Court
issued a Roseboro notice, (Swaringer II,
Doc. No. 10), informing Plaintiff of the burden she carries
in responding to Defendant's Motion. Plaintiff has
responded, (Swaringer II, Doc. No. 14), Defendant
has replied, (Swaringer II, Doc. No. 17), and this
motion is now ripe for review. For the reasons stated below,
Defendant's motion is GRANTED.
action arises out injuries Plaintiff alleges she suffered
from wearing a work uniform distributed by Defendant to its
employees in September of 2016. (Swaringer II, Doc.
No. 1-1, p. 2). Specifically, Plaintiff alleges that the
uniforms contained chemicals that caused Plaintiff to suffer
from angioedema and anaphylaxis. Id. at 2-3.
30, 2018, Plaintiff commenced her first action against
Defendant in state court. (Swaringer v. PSA Airlines,
Inc., No. 3:18-cv-00481-FDW-DCK, Doc. No. 1-1)
(hereafter “Swaringer I”). Defendant
removed that action to federal court on August 20, 2018.
(Swaringer I, Doc. No. 1). On September 6, 2018,
Defendant moved for the Court to dismiss Plaintiff's
Complaint. (Swaringer I, Doc. No. 6). Despite the
Court's issuance of a Roseboro notice allowing
Plaintiff additional time to respond, Plaintiff failed to
timely respond or otherwise objected to the motion.
See (Swaringer I, Doc. No. 10). Rather,
Plaintiff initiated this matter by filing a Complaint in
federal court on October 1, 2018. (Swaringer II,
Doc. No. 1). On October 24, 2018, this Court issued an Order
dismissing Plaintiff's Complaint in Swaringer I.
(Swaringer I, Doc. No. 10). Defendant now moves this
Court to dismiss this current action under Rule 12(b)(1) for
lack of subject matter jurisdiction and 12(b)(6) for failure
to state a claim. (Swaringer II, Doc. No. 6).
STANDARD OF REVIEW
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994). Rule 12(b)(1) of the Federal Rules of
Civil Procedure provides for the dismissal of claims where
the Court lacks jurisdiction over the subject matter of the
lawsuit. Fed.R.Civ.P. 12(b)(1). Lack of subject matter
jurisdiction may be raised at any time by a litigant or the
court itself. Mansfield, C. & L.M.R. Co. v.
Swan, 111 U.S. 379, 382 (1884). “If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
has the burden of proving that subject matter jurisdiction
exists. See Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
When a defendant challenges subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1), “the district court
is to regard the pleadings as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, 945 F.2d at 768. The district court should
grant the Rule 12(b)(1) motion to dismiss “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Id.; see also Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999).
12(b)(6) allows a defendant to move for dismissal when a
plaintiff has not stated a claim that is recognized by law.
Documents attached as exhibits to the complaint or
incorporated by reference in the complaint may be considered
when resolving a motion pursuant to Rule 12(b)(6) without
converting the motion into one for summary judgment. Zak
v. Chelsea Therapeutics Intern. Ltd., 780 F.3d 597, 606
(4th Cir. 2015). An outside document may be considered for a
12(b)(6) ruling if it is integral and explicitly relied on in
the complaint and there is no challenge to the document's
authenticity.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim, a plaintiff's “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) (citing Bell Atl. 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 complaint is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable.”
Id. While a high level of factual detail is not
required, a complaint needs more than “an unadorned,
Id. (citation omitted). “Where there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief. Id. at 679. On the
other hand, a plaintiff's legal conclusions are not
entitled to a presumption of truth. Id. at 678.
filed by pro se plaintiffs are [generally] construed
more liberally than those drafted by an attorney.”
Berry v. Gutierrez, 587 F.Supp.2d 717, 722 (E.D. Va.
2008) (citing Haines v. Kerner, 404 U.S. 519, 520-21
(1972)). Thus, when considering a Rule 12(b)(6) motion, a
court must keep in mind the principle that “a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Nevertheless, Erickson does not undermine
the requirement ...