ROY v. WALMART

Filing 11

MEMORANDUM ORDER granting 6 Motion to Dismiss; within twenty (20) days of the date of entry of this Order, Plaintiff shall file an amended complaint curing the deficiencies identified above under Rule 8(a); and it is further ORDERED that If Plaint iff fails to file an amended complaint within twenty (20) days of the date of entry of this Order, Plaintiff's Complaint will be automatically dismissed by the Court for failure to state a claim upon which relief can be granted. Signed by Judge Renee Marie Bumb on 10/2/13. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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FRANK ROY,
Plaintiff,
v.
WAL-MART,
Defendant.

Civil Action No.
13-4256 (RMB/JS)
MEMORANDUM ORDER

BUMB, UNITED STATES DISTRICT JUDGE:
On June 4, 2013, Plaintiff Frank Roy filed a Complaint (the
"Complaint") against Defendant Wal-Mart ("Wal-Mart").

On July 11,

2013, Defendant Wal-Mart removed this matter to the United States
District Court for the District of New Jersey on the basis of diversity
of citzenship pursuant to 28 U.S.C. § 1332.
Although the Complaint does not set forth the nature of the
claims, Defendant Wal-Mart has interpreted Plaintiff's claims as
theft by deception under the New Jersey Code of Criminal Justice,
NJSA2C:20-4, and violations of Title II of the Civil Rights Act of
1964, 42 U.S.C. § 2000a, et seq. and the New Jersey Law Against
Discrimination, N.J.S.A. §§ 10:5-12.

Plaintiff has not disputed

Wal-Mart's interpretation of his claims.
According to the Complaint, Plaintiff alleges that on April 24,
2013, Wal-Mart Store representative "CSS Anita" refused to exchange
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or credit Plaintiff's merchandise, without good reason.

Plaintiff

claims that by failing to provide a good reason why his merchandise
could not be returned, "CSS Anita" discriminated against him based
on race, age, and gender.

Additionally, Plaintiff claims theft by

deception by Wal-Mart because "CSS Anita" refused to give her last
name and acted in deceptive practices.
Wal-Mart has filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6).

[Docket No. 6]

For the reasons that

follow, the motion is GRANTED.
Federal Rule of Civil Procedure 8(a) requires that a complaint
contain:
(1) [A] short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) [A] short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) [A] demand for the relief sought, which may include
relief in the alternative or different types of relief.
"[A] complaint must do more than allege the plaintiff's entitlement
to relief. A complaint has to 'show' such an entitlement with its
facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 311 (3d Cir. 2009).
The Complaint at issue here fails to provide either the grounds
for the Court's jurisdiction or a short and plain statement of the
claims showing that Plaintiff is entitled to relief. Instead, it
provides only vague and conclusory assertions that the defendant, a
private entity, discriminated against Plaintiff and engaged in theft
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by deception by refusing to exchange or credit his merchandise.

The

Complaint provides no additional details. Nor does the Complaint
explain how defendant's actions constitute a violation of Plaintiff's
civil rights or discrimination.

As Wal-Mart understandably states

in its moving papers, "Plaintiff's Complaint defies any attempt by
Wal-Mart to meaningfully answer or plead to it and leaves Wal-Mart
having to guess the exact nature of his claims."

[Docket No. 6, page

8]
Even assuming Wal-Mart has properly construed Plaintiff's
Complaint, the Complaint fails under Federal Rule of Civil Procedure
12(b)(6).

“[W]hile a complaint attacked by a Rule 12(b)(6) motion

to dismiss does not need detailed factual allegations, . . . a
plaintiff's obligation to provide the 'grounds' of his 'entitle[ment]
to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)(internal
citations omitted).

In deciding a motion to dismiss under Rule

12(b)(6), a court should look to the face of the complaint and decide
whether, taking all of the allegations of fact as true and construing
them in a light most favorable to the nonmovant, plaintiff has alleged
“enough facts to state a claim for relief that is plausible on its
face.” Twombly, 127 S.Ct. at 1974. Only the allegations in the
complaint, matters of public record, orders, and exhibits attached
to the complaint matter, are taken into consideration. Chester County
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Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d
Cir. 1990).

Here, the Complaint contains nothing more than

unsupported bald assertions and conclusions.

Plaintiff has not

alleged enough facts, indeed, hardly any, to state a claim that is
plausible on its face.
ACCORDINGLY, IT IS HEREBY on this 2nd day of October 2013,
ORDERED that Wal-Mart's Motion to Dismiss is GRANTED; and it is
further
ORDERED that within twenty (20) days of the date of entry of this
Order, Plaintiff shall file an amended complaint curing the
deficiencies identified above under Rule 8(a); and it is further
ORDERED that If Plaintiff fails to file an amended complaint
within twenty (20) days of the date of entry of this Order, Plaintiff's
Complaint will be automatically dismissed by the Court for failure
to state a claim upon which relief can be granted.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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