Iannucci et al v. RiteAid Corporation

Filing 13

ORDER re 10 Defendant's MOTION for Partial Judgment on the Pleadings. (Responses due by 2/25/2012.) The Plaintiffs must comply with the Pre-Trial Order and Case Management Plan [Doc. 9] and they must file with their Response a Certificate of Service indicating the manner and date on which they served the Defendant. Signed by District Judge Martin Reidinger on 02/07/2012. (Pro se litigant served by US Mail.)(thh)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE CITY DIVISION
CIVIL CASE NO. 1:11cv281

MARGE IANNUCCI and
MICHAEL A. IANNUCCI,

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Plaintiffs,
vs.
RITE AID CORPORATION,
Defendant.

ORDER

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THIS MATTER is before the Court on the Motion for Partial Judgment
on the Pleadings of Rite Aid Corporation. [Doc. 10].
The Plaintiffs have elected to appear pro se in this matter. The
Defendant has filed a motion for partial judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c).1 [Doc. 10]. Because the Plaintiffs
are proceeding pro se, the Court will provide instruction as to their obligation
to respond to the motion and the time within which to do so. Roseboro v.
Garrison, 528 F.2d 309 (4 th Cir. 1975). The Plaintiffs are cautioned that failure

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The Plaintiffs named as defendants “Rite Aid Corporation, et. al.” However, the
body of the Complaint names only Rite Aid as a defendant. As a result, the Court
hereby corrects the caption to accurately reflect the pleading.

to respond to the pending motion will result in its being granted in which case
certain claims will be dismissed with prejudice.
A Rule 12(c) motion for partial judgment on the pleadings is decided
using the same standard as that applied to a Rule 12(b)(6) motion to dismiss
for failure to state a claim upon which relief may be granted. Walker v. Kelly,
589 F.3d 127, 138 (4 th Cir. 2009), cert. denied

U.S.

, 130 S.Ct. 3318,

176 L.Ed.2d 1215 (2010). This means that in responding to this motion, the
Plaintiffs must show that they have made sufficient allegations in the
Complaint to support a cause of action against the Defendant which is
recognized by law.
To survive a Rule 12[c] motion, “[f]actual allegations must be
strong enough to raise a right to relief above the speculative level”
and have “enough facts to state a claim to relief that is plausible
on its face.” [T]he court “need not accept the [plaintiff’s] legal
conclusions drawn from the facts,” nor need it “accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.”
Philips v. Pitt County Memorial Hospital, 572 F.3d 176, 179-80 (4 th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)) (other citations omitted).
The Plaintiffs are therefore advised that the Complaint must contain
factual matter which, if accepted as true, would “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949,

173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 570). A claim is facially
plausible when a plaintiff pleads sufficient factual content to allow “the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
The Plaintiff is also advised that the Court may take judicial notice of
matters of public record.

Philips, 572 F.3d at 179-80.

It may consider

documents attached to the Complaint as well as those attached to the Motion
for Partial Judgment on the Pleadings. Id.
Finally, the Plaintiffs are advised that their Response must be filed on
or before seventeen (17) calendar days from entry of this Order and that it
must also be served on the Defendant.

The Plaintiffs must include a

Certificate of Service indicating the manner and date on which they served the
Defendant.
IT IS, THEREFORE, ORDERED that the Plaintiffs may file Response to
the Defendant’s Motion for Partial Judgment on the Pleadings [Doc. 10] on or
before seventeen (17) calendar days from entry of this Order. Failure to do
so may result in the dismissal of claims with prejudice.
IT IS FURTHER ORDERED that in making any such Response, the
Plaintiffs must comply with the Pre-Trial Order and Case Management Plan
[Doc. 9] and they must file with their Response a Certificate of Service

indicating the manner and date on which they served the Defendant.
Signed: February 7, 2012