Thomas v. Wal-Mart Stores East, LP et al

Filing 16

OPINION, MEMORANDUM AND ORDER re: 14 ORDERED that Defendant's Motion to Dismiss, [Doc. No. 14], is GRANTED. FURTHER ORDERED that this matter is dismissed, as to Defendants Fernandez, Horton, and Buelt. Signed by District Judge Henry E. Autrey on 1/13/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CASSANDRA THOMAS,
Plaintiff,
vs.
WALMART STORES, LLP,
ANGELA FERNANDEZ,
MELISA HORTON,
GREG BUELT,
Defendant.

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Case No. 4:13CV00565 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on a Motion to Dismiss, [Doc. No. 14], filed
on behalf of Angela Fernandez, Melisa Horton, and Greg Buelt. Plaintiff has not
responded to the Motion. The time for response has long elapsed. For the reasons
set forth below, the Motion is granted.
Standard for Motion to Dismiss
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss for failure to state a claim, the Court must take as true the alleged facts
and determine whether they are sufficient to raise more than a speculative right to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does
not, however, accept as true any allegation that is a legal conclusion. Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1949-50 (2009). The complaint must have “‘a short and
plain statement of the claim showing that the [plaintiff] is entitled to relief,’ in
order to ‘give the defendant fair notice 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 (1957), abrogated by Twombly,
supra); see also Gregory v. Dillard’s Inc., 565 F.3d 464, 473 (8th Cir.) (en banc),
cert. denied, 130 S.Ct. 628 (2009). While detailed factual allegations are not
necessary, a complaint that contains “labels and conclusions,” and “a formulaic
recitation of the elements of a cause of action” is not sufficient. Twombly, 550
U.S. at 555; accord Iqbal, 129 S.Ct. at 1949. The complaint must 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 Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 129
S.Ct. at 1949. If the claims are only conceivable, not plausible, the complaint
must be dismissed. 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 whole, not parsed piece by piece to determine whether each
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allegation, in isolation, is plausible.” Braden, 588 F.3d at 594. The issue in
considering such a motion is not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in support of the claim. See
Neitzke v. Williams, 490 U.S. 319, 327 (1989). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, “although a
complaint need not include detailed factual allegations, ‘a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.’ ” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624,
629-30 (8th Cir.2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Defendants move to dismiss this action on the grounds that Plaintiff’s
action fails to state a claim of medical malpractice against the individual
defendants. Plaintiff has utterly failed to address Defendant’s arguments in
support of its Motion to Dismiss. The Court construes such failure as an
abandonment of Plaintiff’s claims. See Spencer v. Moreno, No. 4:02CV3049,
2003 WL 1043318, at *5 (D.Neb. Mar. 11, 2003) (failure to show or to attempt to
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show right to pursue claim in response to arguments raised in defendants' motion
appears to constitute an abandonment of the claim or a concession to defendants'
argument). See also, e.g., Siepel v. Bank of Am., N.A ., 239 F.R.D. 558, 566
(E.D.Mo.2006) (because plaintiffs failed to address defendants' arguments raised
in motion to dismiss relating to certain claims, court grants motion on such claims
and dismisses those claims with prejudice) (citing Figueroa v. United States
Postal Serv., 422 F.Supp.2d 866, 879 (N.D.Ohio 2006) (viewing the failure to
respond to arguments in a motion to dismiss as a concession that the claim fails as
a matter of law); Scognamillo v. Credit Suisse First Boston LLC, No. 03–2061,
2005 WL 2045807, at *11 (N.D.Cal. Aug. 25, 2005) (holding that plaintiffs'
failure to respond to argument warranted dismissal with prejudice)); Georges v.
Accutira Mortg., Inc., No. 4:08–cv–201 (JCH), 2008 WL 2079125, at *5
(E.D.Mo. May 15, 2008) (court accepts defendant's argument that plaintiff's claim
is untimely inasmuch as plaintiff failed to respond to argument).
Conclusion
Based upon the foregoing, the Court concludes that the Motion is well
taken and therefore, this matter will be dismissed as to defendants Fernandez,
Horton, and Buelt.
Accordingly,
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IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc.
No. 14], is GRANTED.
IT IS FURTHER ORDERED that this matter is dismissed, as to
Defendants Fernandez, Horton, and Buelt.
Dated this 13th day of January 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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