United States District Court, D. Delaware
Connie Crenshaw, Wilmington, Delaware. Pro Se Plaintiff.
Lance M. Geren, Esquire, Freedman and Lorry, P.C., New Castle, Delaware. Counsel for Defendant International Longshoremen's Association, Local 1694, AFL-CIO.
Geoffrey Graham Grivner, Esquire, Buchanan Ingersoll & Rooney P.C., Wilmington, Delaware. Counsel for Defendant Ports of the Delaware River Marine Trade Association.
RICHARD G. ANDREWS, District Judge.
Plaintiff Connie Crenshaw filed this employment discrimination action pursuant to 42 U.S.C. § 2000e-5, et. seq. (D.I. 2). She appears pro se and was granted leave to proceed in forma pauperis. (D.I. 4). Presently before the court are Plaintiff's request for default (D.I. 8) and Defendants' motions to dismiss (D.I. 9, 17). The matters have been fully briefed.
Plaintiff filed this action on September 19, 2013 alleging discriminatory conduct by reason of sex. The complaint alleges that the discriminatory conduct, consisting of termination of her employment and failure to promote, occurred on October 25, 2012 and is continuing. The complaint further states that Plaintiff filed charges with the Department of Labor of the State of Delaware on May 1, 2012 and with the Equal Employment Opportunity Commission on April 26, 2012. Attached to the complaint are numerous right to sue letters received by Plaintiff, all dated April 8, 2011, for Charge Nos. 530-2011-01361;XXX-XXXX-XXXXX; XXX-XXXX-XXXXX; XXX-XXXX-XXXXX; 17C-2010-00015; XXX-XXXX-XXXXX; XXX-XXXX-XXXXX; XXX-XXXX-XXXXX; and XXX-XXXX-XXXXX. Also attached is a copy of a December 22, 2012 arbitrator's opinion and award denying a grievance filed by plaintiff wherein she complained of her termination.
Defendants signed waivers of service. (D.1. 6, 16). Plaintiff requests the default of Defendant International Longshoremen's Association, Local 1694, AFL-CIO. Both Defendants move to dismiss the complaint on the grounds that complaint was not timely filed and that Plaintiff failed to exhaust her administrative remedies.
REQUEST FOR ENTRY OF DEFAULT
International Longshoremen's signed a waiver of service on December 16, 2013. (D.I. 6). The waiver provided that a response was due within sixty days after October 16, 2013. On January 13, 2014, Plaintiff filed a request for default as to International Longshoremen's. (D.I. 8). The next day, International Longshoremen's filed a motion to dismiss. (D.I. 9).
A party seeking to obtain a default judgment must first request that the clerk of the court "enter... the default" of the party that has not answered the pleading or "otherwise defend[ed], " within the time required by the rules or as extended by court order. Fed.R.Civ.P. 55(a). An attorney entered his appearance on behalf of International Longshoremen's and has filed a motion to dismiss. The Court exercises its discretion and will deny the request for default.
MOTIONS TO DISMISS
Defendants seek dismissal (D.I. 9, 17) pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff opposes (D.I. 14, 18) the motions. Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). "In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal, 556 U.S. at 678. When determining whether dismissal is appropriate, the court must take three steps: "(1) identify the elements of the claim, (2) review the complaint to strike conclusory allegations, and then (3) lookO at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Because ...