BLAKE v. CREE, INC.

Filing 20

ORDER AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 1/19/10 re 11 MOTION to Dismiss Pursuant to Rule 12(b)(6) filed by CREE, INC., VINCENT P. REGINA be granted without prejudice to Plaintiff's opportunity to forthwith amend her complaint, 18 MOTION to move case back to Durham County Superior Court filed by CHERYL BLAKE be denied. (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

C H E R Y L BLAKE, P la in ti ff , v. C R E E , INC., and VINCENT P. R E G IN A , D e f e n d a n t s.

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O R D E R AND RECOMMENDATION O F UNITED STATES MAGISTRATE JUDGE

T h is matter comes before the Court on several motions filed by the parties. The Court f irs t considers Plaintiff's motion for entry of default. (Docket No. 8.) The motion is directed a g a in s t Defendant Cree, Inc. ("Cree"), the only Defendant named in Plaintiff's original c o m p lain t, filed in state court on September 11, 2009. Defendant Cree has responded in o p p o s itio n to the motion. (Docket No. 14.) T h e record in this matter shows that this case was removed to this court by Defendant C re e on October 16, 2009. Plaintiff filed an Amended Complaint on October 23. By virtue o f the filing of the Amended Complaint, an initial responsive pleading was due from D ef en d an t Cree on November 9 . See Fed. R. Civ. P. 81(c)(2)(C), 6(a)(2)(prior to Dec. 1,

2 0 0 9 ), and 15(a)(3). However, before that date, on November 5, both Defendants named in th e Amended Complaint filed a motion to dismiss ­ a permitted responsive pleading. A c c o rd in g ly, the Court finds that Defendant Cree timely responded to the Amended C o m p la in t in this action, and Plaintiff's request for entry of a default should be, and hereby is , DENIED. P r o se Plaintiff Cheryl Blake has also filed a motion to remand this action to the state c o u rts . (Docket No. 18.) She states that she has been "legally advised that when you name yo u r supervisor in the caption along with the company that those cases can not be tried in the F e d e ra l Courts." (Id.) T h e Court notes, first, that the "legal advice" Plaintiff relies upon has no basis in the law and is simply wrong. Plaintiff's original complaint was properly removable to this court b e c a u se it raises federal questions. Plaintiff makes claims under Title VII of the Civil Rights A c t of 1964 and several other federal statutes. Accordingly, there is federal question ju ris d ic tio n to support removal, and Plaintiff has shown no reason why removal was p ro c e d u ra lly improper. Therefore, Plaintiff's motion to remand is without merit. D e f en d a n ts have filed a Rule 12(b)(6) motion to dismiss the Amended Complaint for f a ilu re to state a claim upon which relief may be granted. (Docket No. 11.) The substantive p o rtio n of the Amended Complaint reads in full: 1. T h e Plaintiff was employed at Cree Inc. from June 24, 2002 through M a rc h 28, 2008. Plaintiff at the time of her employment termination was u n d e r the supervision or management of Vincent P. Regina and became -2-

d is a b le d and was placed on restricted duties while under doctor's care. P lain tiff was terminated for staffing reasons due to disability. 2. Defendant Vincent P. Regina (Vince) is imputed to Cree under agent t h e o r y. 3. P la in tif f was discriminated against under the Fair Labor Standards Act (F L S A ), the Retaliatory Employment Discrimination Act (REDA), the Age D is c rim in a tio n in Employment Act (ADEA), Title VII of the Civil Rights Act o f 1964 (Title VII), Section 1983 of the Civil Rights act as amended (Section 1983 ), Americans With Disabilities Act (ADA), the Family and Medical Leave A c t (FLMA), wrongful discharge, unpaid wages, unpaid vacation, unpaid s ic k leave pay, unpaid bonuses, unpaid merit increases, intentional and n e g lig e n t infliction of emotional distress of plaintiff and plaintiff's family m e m b e rs , defamation, fraud, and all other cause [sic] of action based on f e d e ra l, state, local or common law. (D o c k e t No. 6, Am. Compl. at 1.) As exhibits, Plaintiff attaches a letter of termination, an e m a il request for FMLA, an email sent to Vince Regina, a doctor's note for restricted duties, a letter sent to Plaintiff's doctor from Defendant, the doctor's response to Defendant, re s tric tio n s and notes from Concentra, and Form 1099-G from ESC. O n review, the Court finds it to be readily apparent from a reading of the Amended C o m p lain t that the complaint is fatally deficient under the pleading standard established in B e ll Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. , ,

1 2 9 S. Ct. 1937, 1949 (2009). Dismissal is proper under Rule12(b)(6) where a plaintiff fails to plead a short and plain statement of the claim showing the pleader is entitled to relief. R e p u b lica n Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). For the purposes of Rule 1 2 (b )(6 ), the Court is not required to accept as true the legal conclusions set forth in a

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p la in tif f 's complaint. District 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 6 0 9 F.2d 1083, 1085 (4th Cir. 1979). A plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," as opposed to merely conceivable on some undisclosed s e t of facts. Twombly, 550 U.S. at 547. Specifically, "[w]hile a complaint attacked by a Rule 1 2 (b )(6 ) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `ground'' of his `entitle[ment] to relief' requires more than labels and c o n c lu s io n s , and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations omitted). W h ile Plaintiff alleges that she was subjected to discrimination, retaliation, and other to rtio u s conduct by Defendants, she has stated no facts that could make out a plausible legal c la im of any sort. Her complaint includes little more than legal conclusions. Her exhibits, b y themselves, fail to raise any factual inferences that could show a plausible basis for any c a u se of action alleged by Plaintiff. In short, Plaintiff's complaint is precisely the sort of c o m p lain t that Twombly and Iqbal find wanting and deficient on Rule 12(b)(6) review. F o r reasons set forth above, IT IS ORDERED that Plaintiff's motion for entry of d e f a u l t (Docket No. 8) is DENIED. Further, IT IS RECOMMENDED that Plaintiff's m o tio n to remand (Docket No. 18) be denied. Finally, IT IS RECOMMENDED that D e f en d a n ts ' motion to dismiss for failure to state a claim (Docket No. 11) be granted without p re ju d ice to Plaintiff's opportunity to forthwith amend her complaint.

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T h is the

19th

day of January, 2010.

/s/ P. Trevor Sharp United States Magistrate Judge

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