B.D. v. Griggs et al

Filing 28

SECOND ROSEBORO ORDER that plaintiff respond to re 23 MOTION to Dismiss 12(b)(6), ( Responses due by 3/29/2010) Signed by Magistrate Judge Dennis Howell on March 16, 2010. (jhg)

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :0 9 cv 4 3 9 B . D. By her parent, Heidi Dragomir, P la in tiff, V s. J A N A GRIGGS; MARY WATSON; A L E X A POSNY; JULIAN MANN III; G E O R G E MILLER; and BUNCOMBE C O U N T Y BOARD OF EDUCATION, D efen d an ts. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) )

SEC O ND RO SEBO RO ORDER

T H I S MATTER is before the court on defendants the Buncombe County B o ard of Education's and Jana Griggs' Motion to Dismiss (#23). Plaintiff is

p ro c ee d in g pro se and will be advised of her obligation to respond and the time for d o in g so. In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), p la in tiff, who is proceeding pro se, is cautioned that these defendants have filed a M o tio n to Dismiss contending that she has failed to state a cause of action against th e m . Rule 12(b)(6), Federal Rules of Civil Procedure, provides for dismissal where a party has failed to state a cause of action as a matter of law. This language means th a t in responding to the motion to dismiss, plaintiff must show that she has made
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s u ff ic ie n t allegations to support a cause of action against such defendants that is re c o g n iz e d by law. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the

C o u rt held that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege fa cts in her complaint that "raise a right to relief above the speculative level." Id., at 555. [A] plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic re c ita tio n of the elements of a cause of action will not do . . . . Id. (second alteration in original; citation omitted). Further, a complaint will not s u rv iv e Rule 12(b)(6) review where it contains "naked assertion[s] devoid of further fa c tu a l enhancement." Id., at 557. Instead, a plaintiff must now plead sufficient facts to state a claim for relief that is "plausible on its face." Id., at 570 (emphasis added). T h e court again visited the Rule 12(b)(6) pleading standard in Ashcroft v. Iqbal, ___ U .S . ___, 129 S.Ct. 1937 (May 18, 2009). In Ashcroft, the Court held that Rule 8 " d em an d s more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id ., S.Ct., at 1949. The Court explained that, "to survive a motion to dismiss, a c o m p la in t must contain sufficient factual matter, accepted as true, to `state a claim to r e lie f that is plausible on its face.'" Id. (citing Twombly, supra; emphasis added). W h a t is plausible is defined by the Court: [a ] claim has facial plausibility when the plaintiff pleads sufficient fa ctu a l content that allows the court to draw the reasonable inference that
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th e defendant is liable for the misconduct alleged. Id . This "plausibility standard" requires "more than a sheer possibility that a

d e fe n d a n t has acted unlawfully." Id. Thus, a complaint falls short of the plausibility s ta n d a r d where plaintiff "pleads facts that are `merely consistent with' a defendant's lia b ility . . . ." Id. While the court accepts plausible factual allegations made in the c o m p la in t as true and considers those facts in the light most favorable to plaintiff in r u l in g on a motion to dismiss, a court "need not accept as true unwarranted inferences, u n r e a s o n a b le conclusions, or arguments." Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s, L L P , 213 F. 3d 175, 180 (4th Cir. 2000). Finally, plaintiff is advised that she has until March 29, 2010, to file her re s p o n s e , and that such response must be served on all the other parties, and that she m u s t include a certificate of service indicating the manner in which she served such p a r tie s .

ORDER I T IS, THEREFORE, ORDERED that plaintiff respond to defendants' M o tio n to Dismiss (#23) not later than March 29, 2010.

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Signed: March 16, 2010

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