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Banner v. Fletcher

United States District Court, D. Delaware

March 19, 2018

TUESDAY S. BANNER, Plaintiff,
v.
GENELLE FLETCHER, Defendant.

          Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.

          Lauren E. Maguire, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.

          MEMORANDUM OPINION

          STARK, U.S. DISTRICT JUDGE:

         I. INTRODUCTION

         Plaintiff Tuesday S. Banner ("Plaintiff) proceeds pro se and was granted leave to proceed in forma pauperis. She filed this action pursuant to 42 U.S.C. § 1983, alleging retaliation for filing an anti-discrimination claim, and has amended several times to allege violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), the Ameiicans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), and Tide VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (D.I. 2, 6, 33) On March 17, 2017, the Court dismissed the Second Amended Complaint and gave Plaintiff leave to amend FMLA claims against Defendant Genelle Fletcher ("Defendant"). (D.I. 46, 47) Plaintiff filed a Third Amended Complaint on April 12, 2017. (D.I. 49) Presently before the Court is Defendant's motion to dismiss, which Plaintiff opposes. (D.I. 51, 55, 56) For the reasons that follow, the Court will grant in part and deny in part the motion to dismiss.

         II. BACKGROUND

         On March 17, 2017, Plaintiff was given leave to amend FMLA claims against Defendant. The Third Amended Complaint alleges wrongful acts occurring December 2, 2009 to December 31, 2014 that resulted in the termination of Plaintiffs employment.

         III. LEGAL STANDARDS

         Because Plaintiff proceeds pm se, her pleading is liberally construed and her Third Amended Complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Brickson v. Panhts, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). Defendant moves for dismissal pursuant to Rules 12(b)(1) and 12(b)(6).

         A. Rule 12(b)(1)

         Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack contests the sufficiency of the pleadings, whereas a factual attack contests the sufficiency of jurisdictional facts. See Lincoln Ben. Life Co. v. AEIUfe, LLC, 800 F.3d 99, 105 (3d Cir. 2015). When considering a facial attack, the Court accepts the plaintiffs well-pleaded factual allegations as true and draws all reasonable inferences from those allegations in the plaintiffs favor. See In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625, 633 (3d Cir. 2017). When reviewing a factual attack, the court may weigh and consider evidence outside the pleadings. See Gould Ekes. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

         B. Rule 12(b)(6)

         Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruillv. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

         A well-pleaded complaint must contain more than mere labels and conclusions. SeeAshcroft v. Iqbal,556 U.S. 662 (2009); BellAtl Corp. v. Twombly,550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, ___U.S ___, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, ...


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