Kennell v. ABBCO Service Corporation

Filing 32

OPINION, MEMORANDUM AND ORDER re: 25 ORDERED that Defendants' Motion to Dismiss, [Doc. No. 25], is granted. FURTHER ORDERED that Plaintiff is given 14 days within which to file an Amended Complaint. ( Response to Court due by 5/28/2010.). Signed by Honorable Henry E. Autrey on 5/14/10. (CEL)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF MISSOURI E A S T E R N DIVISION P A R IS D. KENNELL, Plaintiff, vs. A B B C O SERVICE CORPORATION, Defendant. ) ) ) ) ) ) ) ) )

C a s e No. 4:09CV771HEA

O P IN I O N , MEMORANDUM AND ORDER T h is matter is before the Court Defendant's Motion to Dismiss for Failure to S ta te a Claim, [Doc. No. 25]. Plaintiff opposes the Motion. For the reasons set forth b e lo w , the Motion is granted and leave will be given to file an Amended Complaint B a ckg ro u n d P la in tiff brought this action for alleged violations of Title VII of the Civil R ig h ts Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. for employment d is c rim in a tio n . Plaintiff is proceeding pro se and filed her Complaint on a form p r o v id e d by the Clerk's Office for this District. On the form, Plaintiff "checked" that s h e was bringing the action for employment discrimination based on race, color, re lig io n , gender or national origin. Further on the form, Plaintiff "checked" that she b e lie v e d she was discriminated against based on her race. However, in the descriptive p o rtio n of this form Complaint, Plaintiff claims she was discharged based on "sexual

h a r a s s m e n t" of a "gay male" Plaintiff also alleges that her "accuser" retaliated against h e r because she "spoke against him." D e fe n d a n ts now move to dismiss certain of Plaintiff's claims for failure to state a cause of action. Discussion W h e n ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss fo r failure to state a claim, the Court must take as true the alleged facts and determine w h e th e r they are sufficient to raise more than a speculative right to relief. Bell Atl. C o r p . v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does not, however, accept a s true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1 9 4 9 -5 0 (2009). The complaint must have "`a short and plain statement of the claim s h o w in g that the [plaintiff] is entitled to relief,' in order to `give the defendant fair n o tic e of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U .S . at 555 (quoting Fed.R.Civ.P. 8(a)(2)) and then Conley v. Gibson, 355 U.S. 41, 47 (1 9 5 7 ), abrogated by Twombly, supra); see also Gregory v. Dillard's Inc., 565 F.3d 4 6 4 , 473 (8th Cir.) (en banc), cert. denied, 130 S.Ct. 628 (2009). While detailed fa c tu a l allegations are not necessary, a complaint that contains "labels and c o n c lu s io n s ," and "a formulaic recitation of the elements of a cause of action" is not s u ffic ie n t. Twombly, 550 U.S. at 555; accord Iqbal, 129 S.Ct. at 1949. The complaint

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m u s t set forth "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1949; Braden v. Wal-Mart S to r e s, Inc., 588 F.3d 585, 594 (8th Cir. 2009). "A claim has facial plausibility when th e plaintiff pleads factual content that allows the court to draw the reasonable in f ere n c e that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1 9 4 9 . If the claims are only conceivable, not plausible, the complaint must be d is m is s e d . Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1950. In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "the complaint should be read as a w h o le , not parsed piece by piece to determine whether each allegation, in isolation, is p la u s ib le ." Braden, 588 F.3d at 594. The issue in considering such a motion is not w h e th e r the plaintiff will ultimately prevail, but whether the plaintiff is entitled to p r es en t evidence in support of the claim. See Nusku v. Williams, 490 U.S. 319, 327 (19 89). A lth o u g h pro se complaints, "however inartfully pleaded," are to be held "to le ss stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 4 0 4 U.S. 519, 520 (1972), "a district court should not assume the role of advocate for th e pro se litigant," nor may a district court "rewrite a [complaint] to include claims th a t were never presented," Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999) (q u o ta tio n s omitted), cited with approval in Palmer v. Clarke, 408 F.3d 423, 444 n. 15

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( 8 t h Cir.2005). P la in tiff's Complaint fails to state a cause of action for race discrimination or re ta lia tio n . There is nothing whatsoever in the Complaint which is even remotely re la te d to Plaintiff's race. Although Plaintiff claims that "her accuser" retaliated a g a in s t her, she does not indicate in any way that any retaliation was in response to a n y protected activity, which is a requirement under Title VII. W h ile Plaintiff attempts to boost her claims by attaching affidavits and her C h a rg e of Discrimination, the Court is not at liberty to consider this documents at this tim e . "When ruling on a motion to dismiss under Rule[ ] 12(b)(6)..., a district court g e n e ra lly may not consider materials outside the pleadings." Noble Sys. Corp. v. A lo ric a Central, LLC, 543 F.3d 978, 982 (8th Cir.2008). The present Complaint is insufficient to satisfy the minimal pleading re q u ire m e n ts of Rule 8, which requires Plaintiff to give a short and plain statement of th e claim for relief. Although Plaintiff says she was discriminated because of her race a n d was retaliation, Defendant cannot ascertain from the allegations in the Complaint w h a t actions are allegedly discriminatory. There is no connection between Plaintiff's d is c h a rg e and her race that can be determined from this Complaint. Likewise, there is n o th in g contained in the Complaint which would establish that Defendant retaliated a g a in s t Plaintiff in any way, much less for engaging in protected activity.

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C o n c lu s io n D e fe n d a n t's Motion is well taken. Plaintiff's Complaint fails to state a cause of a c tio n , and therefore, pursuant to Rule 12(b)(6) of the Federal Rules of Civil P ro c e d u re , the Complaint must be dismissed. Plaintiff will be given 14 days within w h ic h to file an Amended Complaint. Failure to file an Amended Complaint will re su lt in dismissal of this action with prejudice. A c c o rd in g ly , I T IS HEREBY ORDERED that Defendants' Motion to Dismiss, [Doc. No. 2 5 ], is granted. I T IS FURTHER ORDERED that Plaintiff is given 14 days within which to file an Amended Complaint. Dated this 14th day of May, 2010.

_______________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

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