Crossley v. United States Postal Service

Filing 7

ORDER INSTRUCTING Plaintiff that he should file a written response to Defendant's Motion to Dismiss by September 17, 2015. Plaintiff's written response should not exceed twenty-five pages in length. The failure to respond to the motion may result in an Order being entered dismissing Plaintiff's case. Signed by Magistrate Judge Dennis Howell on 09/03/15. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15cv165
DAVID B. CROSSLEY,

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Plaintiff,
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v.
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UNITED STATES POSTAL SERVICE, )
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Defendant.
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___________________________________ )

ORDER

Pending before the Court is the Motion to Dismiss filed by Defendant [# 5].
Plaintiff, who is proceeding pro se in this matter, will now be advised of his
obligation to respond and the time for doing so.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff, who is proceeding pro se, is cautioned that Defendant has filed a Motion
to Dismiss. In its motion, Defendant contend that the claims asserted against it are
subject to dismissal pursuant to Rule 12(b)(1) and (6) because the Complaint fails
to state a claim for relief, is moot, and the court lacks subject matter jurisdiction
over the dispute.
Rule 12(b)(6) of the 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

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means that in responding to the motion to dismiss, Plaintiff must show that he has
made sufficient allegations to support a cause of action against such defendant that
is recognized by law. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
the Court held that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
allege facts in his 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 recitation of the elements of a cause of action will not
do . . . .
Id. (second alteration in original; citation omitted). Further, a complaint will not
survive Rule 12(b)(6) review where it contains “naked assertion[s] devoid of
further factual 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.
The 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 “demands 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 complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Id. (internal quotation and
citation omitted). What is plausible is defined by the Court:
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[a] claim has facial plausibility when the plaintiff pleads sufficient
factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.
Id. This “plausibility standard” requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. Thus, a complaint falls short of the
plausibility standard where plaintiff “pleads facts that are ‘merely consistent with’
a defendant’s liability . . . .” Id.
While the court accepts plausible factual allegations made in the Complaint
as true and considers those facts in the light most favorable to plaintiff in ruling on
a motion to dismiss, a court “need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Eastern Shore Mkt.’s Inc. v. J.D.
Assoc.’s, LLP, 213 F. 3d 175, 180 (4th Cir. 2000).
Rule 12(b)(1) provides that the Court may dismiss a complaint where it
lacks subject matter jurisdiction over a dispute. Defendant contends that dismissal
is proper under Rule 12(b)(1) because the failure of Plaintiff to first submit his
claim to the United States Postal Service prior to brining suit deprives this Court of
subject matter jurisdiction over the dispute.
Plaintiff is advised that the method for responding to Defendant’s motion
requires that he file a written “response” to Defendant’s motion within the time
allowed by this Order. A copy of such response must be sent to counsel for all

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other parties, and Plaintiff must certify that he has made such service in a
“certificate of service” indicating the manner in which such service was made.
Accordingly, the Court INSTRUCTS Plaintiff that he should file a written
response to Defendant’s Motion to Dismiss by September 17, 2015. Plaintiff’s
written response should not exceed twenty-five pages in length. The failure to
respond to the motion may result in an Order being entered dismissing Plaintiff’s
case.

Signed: September 3, 2015

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