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. 3:19-cv-00084-FDW-DCK, Doc. No. 6)
(hereafter “Swaringer III”) pursuant to
the Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Because Plaintiff appears pro se, the Court issued a
Roseboro notice, (Swaringer III, Doc. No.
12), informing Plaintiff of the burden she carries in
responding to Defendant’s Motion. Plaintiff has
responded, (Swaringer III, Doc. No. 13), Defendant
has replied, (Swaringer III, Doc. No. 14), and this
motion is now ripe for review. For the reasons stated below,
Defendant’s motion is GRANTED.
February 19, 2019, Plaintiff filed a pro se
Complaint for a Civil Case against Defendant PSA Airlines,
Inc. (Swaringer III, Doc. No. 1). This filing is
the third action by Plaintiff in this Court against PSA
alleging injuries arising out of a uniform PSA distributed to
her during her employment. Plaintiff’s complaint in
this matter includes a copy of her complaint filed in
Mecklenburg County Superior Court on July 30, 2018 alleging
medical conditions including “angioedema that has
progressed to anaphylaxis” and various complications,
though no other attachments are included with the complaint
(Swaringer III, Doc. No. 1, p. 15).
removed Plaintiff’s first complaint from the Superior
Court for Mecklenburg County, North Carolina to this Court on
August 30, 2018 based on diversity jurisdiction
(Swaringer v. PSA Airlines, Inc., No.
3:18-cv-00481-FDW-DCK) (hereafter “Swaringer
I”). (Swaringer I, Doc. No. 1). The Court
dismissed Plaintiff’s first action without prejudice on
October 24, 2018 after issuing a Roseboro notice and
Plaintiff failing to timely respond (Swaringer I,
Doc. No. 10). The Court also noted in that dismissal that
Plaintiff had filed another lawsuit in this Court on October
1, 2018 (Swaringer v. PSA Airlines, Inc., No.
3:18-cv-00531-FDW-DCK) (hereafter “Swaringer
II”) alleging substantially identical facts as the
first action, but Plaintiff did not file an Amended Complaint
responding to Defendant’s Motion to Dismiss
(Swaringer I, Doc. No. 10 n.1). The Court then
dismissed Plaintiff’s second action without prejudice
on February 13, 2019 pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure (Swaringer
II, Doc. No. 19).
again moves this Court to dismiss this action under Rule
12(b)(1) for lack of subject matter jurisdiction and 12(b)(6)
for failure to state a claim (Swaringer III, Doc.
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