W. et al v. detroit public schools et al

Filing 45

ORDER GRANTING DEFENDANT BLAIR EVANS MOTION TO DISMISS [#40]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D.W. by her next friend
TONITA WHITE CROSBY, et. al.,
Plaintiffs,
Case No. 12-12415
HON. GERSHWIN A. DRAIN

vs.

BLANCHE KELSO BRUCE
ACADEMY, et. al.,
Defendants.
_____________________________/

ORDER GRANTING DEFENDANT BLAIR EVANS’ MOTION TO DISMISS [#40]
I.

INTRODUCTION
Presently before the Court is Defendant Blair Evans’ (“Evans”) Motion to Dismiss

[#40], filed on November 22, 2013. No response has been filed as of today, February 11,
2014, and Plaintiffs’ response was due back in December of last year. The hearing
scheduled for February 18, 2014 at 2:00 p.m. is cancelled. See E.D. Mich. L.R. 7.1(f)(2).
Evans’ Motion to Dismiss is GRANTED.
II.

FACTUAL BACKGROUND
On June 3, 2013, Plaintiffs filed the instant action alleging that Defendants violated

Title IX of the Education Amendments of 1972 (“Title IX”) and the Michigan Elliott Larsen
Civil Rights Act (“MELCRA”). On October 29, 2013, this Court granted Plaintiffs’ Motion to
File a First Amended Complaint [#32]. Plaintiffs subsequently filed a First Amended
Complaint [#33] on November 5, 2013, in which Evans was no longer identified as a party

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and no claims were alleged against him. Defendants contacted Plaintiffs twice, asking them
to stipulate to the dismissal of Evans. Plaintiffs did not respond, causing Evans to file the
instant Motion.
III.

LEGAL ANALYSIS
A.

Standard of Review

Federal Rule of Civil Procedure12(b)(6) allows the court to make an assessment as
to whether the plaintiff has stated a claim upon which relief may be granted. See FED. R.
CIV. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41,
47 (1957). Even though the complaint need not contain “detailed” factual allegations, its
“factual allegations must be enough to raise a right to relief above the speculative level on
the assumption that all of the allegations in the complaint are true.” Ass’n of Cleveland Fire
Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic, 550
U.S. at 555).
The court must construe the complaint in favor of the plaintiff, accept the allegations
of the complaint as true, and determine whether plaintiff’s factual allegations present
plausible claims. To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief
must provide “more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Ass’n of Cleveland, 502 F.3d at 548. (citations and
quotations omitted). “[T]he tenet that a court must accept as true all of the allegations

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contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S.
662, 668 (2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. “[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. The plausibility
standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’– ‘that the
pleader is entitled to relief.’” Id.
B.

Plaintiffs Fail to State a Claim Against Evans Upon Which Relief Can Be
Granted

Plaintiffs’ First Amended Complaint does not state a claim against Evans upon which
relief can be granted. Moreover, Plaintiffs’ First Amended Complaint fails to identify Evans
as a party or state any claims against him. “When a party files an amended pleading, the
amended pleading supersedes all those that came before.” Specialized Pharmacy
Services, LLC v. Magnum Health and Rehab of Adrian, LLC, No. 12-12785, 2012 WL
6212707, *1 (E.D. Mich. Dec. 13, 2012). “The original pleading no longer performs any
function in the case and any subsequent motion made by an opposing party should be
directed at the amended pleading.” Id. Therefore, Plaintiffs’ First Amended Complaint
superseded their original complaint. Because Plaintiffs’ First Amended Complaint fails to
identify Evans as a party or allege any claims against him, it is proper for this Court to grant
Evans’ Motion and dismiss him as a party to this case.
IV.

CONCLUSION
This Court finds Evans’ arguments meritorious. It is Ordered that Defendant Evans’
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Motion to Dismiss [#40] is GRANTED.
SO ORDERED.
Dated: February 11, 2014

s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 11, 2014, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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