Solomon v. Avenue Construction LLC
MEMORANDUM OPINION re 11 MOTION to Dismiss, and 20 Motion for Leave to Amend. Signed by Judge Richard G. Andrews on 6/19/2012. (nms) Modified on 6/19/2012 (nms).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 10-1115-RGA
AVENUE CONSTRUCTION LLC,
Makale Solomon, Smyrna, Delaware; prose Plaintiff.
Noel E. Primos, Esq., Schmittinger & Rodriguez, P.A., Dover, Delaware; Counsel for
Pending before the Court is Defendant's Motion to Dismiss. (D. I. 11.) Plaintiff
opposes the motion (D.I. 17) and has filed a motion for leave to amend the complaint.
(D.I. 20.) For the reasons given below, the Court will deny the Motion to Dismiss
without prejudice, and will grant Plaintiff's Motion to Amend.
Plaintiff proceeds pro se and had been granted leave to proceed without
prepayment of fees. He alleges employment discrimination and retaliation, pursuant to
Title VII of the Civil Rights Act of 1964, when he was terminated by reason of race on
November 21, 2008. (D.I. 2). Defendant moves for dismissal pursuant to Fed. R. Civ.
P. 12(b)(6) on the grounds that it does not qualify as an employer under Title VII, 42
U.S.C. § 2000e(b), as it did not employ more than fifteen employees during the relevant
time period. Plaintiff opposes the motion, and relies upon the integrated enterprise
theory as set forth by the First Circuit to support his position, Torres-Negron v. Merck &
Co., 488 F.3d 34 (1 51 Cir. 2007), rather than the Third Circuit's integrated enterprise test
in Nesbit v. Gears Unltd., Inc., 347 F.3d 72, 85-88 (3d Cir. 2003). In addition, Plaintiff
moves to amend his Complaint. Defendant has not opposed the motion to amend.
In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the
Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to Plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Christopher v. Harbury, 536 U.S. 403, 406 (2002). "When there are well-ple[d] factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Such a determination is a context-specific task requiring the court "to draw on
its judicial experience and common sense." /d. Because Plaintiff proceeds pro se, his
pleading is liberally construed and his 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) (internal quotation marks omitted).
In addition, when ruling on a 12(b)(6) motion, the Court may consider the
pleadings, public record, orders, exhibits attached to the Complaint, and documents
incorporated into the Complaint by reference. Tel/abs, Inc. v. Makar Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384-85 n.2 (3d Cir. 1994). Rule 12(d) provides, however, that when matters
outside the pleadings are presented to, and not excluded by, the Court, the matter shall
be treated as one for summary judgment and disposed of as provided in Fed. R. Civ. P.
56. See Fed. R. Civ. P. 12(d).
The Court will deny the Motion to Dismiss without prejudice and will grant the
Motion for Leave to Amend the Complaint. It does not appear that any formal discovery
has taken place. Regardless, Defendant has submitted documents outside the
pleadings and, if considered, the Motion to Dismiss must be converted to a Motion for
Summary Judgment. Moreover, it does not appear that Plaintiff has had an opportunity
through discovery to delve into the veracity of the submitted documents (for example,
according to Plaintiff, the affidavit filed in support of Defendant's Motion to Dismiss fails
to refer to at least two employees). Accordingly, the Court declines to convert the
Motion to Dismiss to a Motion for Summary Judgment at this stage of the litigation. In
addition, Plaintiff seeks to amend to cure his pleading deficiencies by filing an amended
complaint. See Fed. R. Civ. P. 15 ("The court should freely give leave when justice so
requires."). The Court will grant Plaintiffs motion, given that he proceeds prose and
leave to amend is liberally granted.
For the above reasons, the Court will deny without prejudice Defendant's Motion
to Dismiss (D. I. 11), and will grant Plaintiffs Motion for Leave to Amend the Complaint
An appropriate Order will be entered.
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