Divers v. Eat Out Now

Filing 15

MEMORANDUM AND ORDER regarding Memorandum and Order 11 . This matter is dismissed without prejudice because the Amended Complaint 13 fails to state a claim upon which relief may be granted. A separate judgment will be entered in accordance with this Memorandum and Order and the court's March 23, 2011, Memorandum and Order. All pending motions are denied as moot. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SEAN M. DIVERS,
Plaintiff,
v.
EAT OUT NOW, Inc,
Defendant.

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4:10CV3246

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On March 23, 2011, the
court conducted an initial review of Plaintiff’s Complaint and found that Plaintiff
failed to state a claim upon which relief may be granted as to all claims asserted.
(Filing No. 11.) In particular, the court determined that:
Plaintiff does not allege that he has a physical or mental impairment
which substantially limits one or more of his major life activities, that he
has a record of such an impairment, or that he is regarded as having such
an impairment. In addition, he does not allege that he was qualified to
perform the essential functions of his job.
(Id. at CM/ECF p. 3.) In light of these pleading deficiencies, the court granted
Plaintiff an opportunity to amend.
In response, Plaintiff filed an Amended Complaint on April 14, 2011. (Filing
No. 13.) The allegations of the Amended Complaint are sparse, and Plaintiff simply
states that he has a “learning disorder,” and that the court should “subpeona [sic] the
Nebraska Equal Opportunity Commission for any and all information regaurding [sic]
the dissmissal [sic] of Mr. Divers . . . .” (Id. at CME/CF p. 1.) After careful review
of the Amended Complaint, the court finds that, even after amendment, Plaintiff has
failed to state a claim upon which relief may be granted. See Ashcroft v. Iqbal, 129
S. Ct. 1937, 1950 (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.”); Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985) (holding that, regardless of whether a plaintiff is represented or
is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim). For these reasons, and the reasons set forth in the court’s March 23,
2011, Memorandum and Order, this matter is dismissed without prejudice.
IT IS THEREFORE ORDERED that:
1.
This matter is dismissed without prejudice because the Amended
Complaint fails to state a claim upon which relief may be granted.
2.
A separate judgment will be entered in accordance with this
Memorandum and Order and the court’s March 23, 2011, Memorandum and Order.
3.

All pending motions are denied as moot.

DATED this 5th day of May, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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