United States District Court, D. Delaware
TUESDAY S. BANNER, Plaintiff,
GENELLE FLETCHER, Defendant.
Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.
E. Maguire, Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware. Counsel for Defendant.
U.S. DISTRICT JUDGE:
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.
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.
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).
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).
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).
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, ...