Rector v. Love's Travel Stops & Country Stores Inc
Filing
13
ORDER granting 10 Motion to Dismiss. Amended Complaint to be filed in 14 days. Signed by Honorable Timothy D. DeGiusti on 6/20/2012. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KARLEITA KAY RECTOR,
Plaintiff,
vs.
LOVE’S TRAVEL STOPS & COUNTRY
STORES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
CIV-11-1233-D
ORDER
Before the Court is Defendant’s motion to dismiss the Complaint [Doc. No. 10] for failure
to state a claim upon which relief may be granted. Plaintiff, a former employee of Defendant,
contends that it wrongfully terminated her employment. Pursuant to Fed. R. Civ. P. 12(b)(6),
Defendant argues the allegations are insufficient to state a plausible claim for relief on any of the
causes of action asserted by Plaintiff. Plaintiff timely responded to the motion, and Defendant filed
a reply.
Standards governing Rule 12(b)(6):
To avoid dismissal pursuant to Rule 12(b)(6), a complaint “must contain enough factual
allegations ‘to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008); VanZandt
v. Oklahoma Dept. of Human Services, 276 F. App’x 843, 846 (10th Cir. 2008) (unpublished
opinion).
To state a plausible claim, “the Plaintiff has the burden to frame a ‘complaint with enough
factual matter (taken as true) to suggest’ that he or she is entitled to relief.” VanZandt, 276 F. App’x
at 846 (quoting Robbins, 519 F. 3d at 1247.) “Factual allegations must be enough to raise a right
to relief above the speculative level.” Twombly, 550 U. S. at 555. Thus, plaintiffs must allege
sufficient facts to “nudge[ ] their claims across the line from conceivable to plausible.” Id. at 570;
Robbins, 519 F. 3d at 1247. The “mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F. 3d 1174, 1177 (10th Cir. 2007) (emphasis
in original). Although the Court must construe well-pleaded facts as true, not all factual allegations
are “entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Id. The Court
need not accept as true the assertions in a complaint which “amount to nothing more than a
‘formulaic recitation of the elements’” of a claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 554-555). The Tenth Circuit has developed the following analysis to test the sufficiency of
a complaint under the Twombly standards:
When reviewing a Rule 12(b)(6) motion to dismiss, “we look for plausibility in the
complaint.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.2007) (internal quotation
marks and brackets omitted). “In particular, we look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Id.
(internal quotation marks omitted). “Rather than adjudging whether a claim is
‘improbable,’ ‘[f]actual allegations [in a complaint] must be enough to raise a right
to relief above the speculative level.’ “ Id. (alterations in original) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).
Marshall v. Morton, 2011 WL 1549516, at *4 (10th Cir. April 26, 2011) (unpublished opinion).
Facial plausibility requires a plaintiff to plead “‘factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”’Matthews v. LaBarge,
Inc., 407 F. App’x. 277, 280 (10th Cir. 2011) (unpublished opinion) (quoting Iqbal, 556 U.S. at
2
678).
In this case, Defendant argues that Plaintiff has not satisfied these standards because she fails
to plead facts to support the elements of the causes of action she asserts. Plaintiff contends that the
Complaint is sufficient to withstand a motion to dismiss. In the alternative, she asks the Court to
grant her leave to amend to cure any defects in the Complaint.
Application:
In the Complaint, Plaintiff states that the action is “brought against Defendant for malicious
prosecution, defamation, negligence and wrongful termination.” Complaint at ¶ 1.1. She alleges
that she was employed by Defendant as a cashier in November of 2008 and, on October 29, 2009,
she was terminated after Defendant accused her of stealing approximately $140.00 from the store
cash register after its security personnel investigated the loss of that amount. Plaintiff denied that
she did so. According to Plaintiff, Defendant said that, if she did not admit the theft, it would press
criminal charges against her. She refused to admit wrongdoing. She was terminated, and Defendant
pursued criminal charges in an Arizona state court. Plaintiff alleges that the misdemeanor charge
was later dismissed for lack of sufficient evidence. Complaint ¶¶ 4.1 through 4.13.
Immediately following the foregoing allegations, the Complaint sets out a section entitled
“Causes of Action.” Plaintiff adopts and incorporates the preceding allegations and then alleges,
as her First Cause of Action, that Defendant terminated her because she refused to admit the theft.
Complaint at ¶ 5.1. Plaintiff also alleges that, “[a]s a proximate cause of Defendant’s wrongful
termination, Plaintiff has suffered damages,” and she describes the losses for which she seeks
compensation. Id. at ¶ 5.2.
The foregoing paragraphs are followed by a “second cause of action,” in which Plaintiff
3
adopts and incorporates the previous allegations
and then alleges that a prosecution for
misdemeanor theft was commenced against Plaintiff, that the prosecution was malicious, that it was
instigated by Defendant, that it was without probable cause, that it was “legally and finally
terminated in favor of Plaintiff,” and that, as a result of the criminal prosecution, she sustained
injury.” Complaint at ¶¶ 5.3 through 5.8.
The Complaint next alleges a “third cause of action, incorporating the prior allegations and
alleging the Defendant’s actions “were intentional, willful and wanton and constitute gross
negligence for which Plaintiff is entitled to recover exemplary or punitive damages.” Complaint at
¶5.9. The next paragraph states the “actions and wrongful conduct” of Defendant “were of such a
nature” that Plaintiff “is entitled to recover exemplary or punitive damages.”
In its motion, Defendant contends the foregoing allegations are insufficient to state a
plausible claim for relief.1 Plaintiff states in the Complaint that she asserts claims based on
“malicious prosecution, defamation, negligence and wrongful termination.” Complaint at ¶ 1.1. As
Defendant argues, however, she has failed to plead facts sufficient to state a claim for defamation,
negligence, or wrongful termination, and her malicious prosecution allegations are merely
conclusory and “formulaic recitations of the elements” which are insufficient under Twombly and
its progeny.
As Defendant notes, to state a claim for defamation, Plaintiff must plead facts to show 1) a
false and defamatory statement, 2) an unprivileged publication to a third party, 3) fault amounting
to at least negligence on the part of the publisher, and 4) either the actionability of the statement
regardless of damage, or the existence of special damage. See Tanique, Inc. v. State, 99 P.3d 1209
1
In its motion, Defendant cites Oklahoma legal authority in support of its view that Oklahoma law governs this
action. Plaintiff’s response brief offers no argument to the contrary.
4
(Okla. Civ. App. 2004). The Complaint in this case contains no factual allegations to support a
defamation claim. In her response to the motion, Plaintiff offers no argument or authority
suggesting that she has pled facts to show these essential elements. Accordingly, this claim must
be dismissed.
Plaintiff has also failed to plead facts to support the essential elements of a negligence claim.
Those elements are 1) the existence of a duty on the part of the defendant, 2) a breach of that duty,
3) damage to the plaintiff, and 4) a causal connection between the breach and the resulting damage.
Brigance v. The Velvet Dove Restaurant, Inc., 725 P. 2d 300, 306 (Okla. 1986). Defendant argues
that Plaintiff has failed to allege the essential element of a duty or facts to show how that duty was
breached. In her response, Plaintiff does not address this contention, and offers no argument
suggesting that the Complaint sufficiently pleads facts to support this claim. The motion to dismiss
is granted as to a claim of negligence.
The Complaint is also devoid of factual contentions in support of a wrongful termination
claim. In its motion, Defendant argues that Plaintiff was an employee at will, and it construes her
claim as based on Burk v. K-Mart Corp., 770 P. 2d 24 (Okla. 1989), which recognizes a cause of
action where an at-will employee contends her termination violated public policy. Plaintiff does not
dispute that contention, and the Complaint contains no allegation to suggest this claim has any other
basis. To state a Burk claim for relief, a plaintiff must allege that she was an at-will employee, that
her termination violated a clear and compelling public policy embodied in existing statutory or
decisional law, and that she has no statutory remedy. McCrady v. Oklahoma Dept. of Public Safety,
122 P.3d 473, 475 (Okla. 2005); Burk, 770 P. 2d at 28.
Plaintiff’s Complaint fails to allege any of these essential factual contentions. Furthermore,
5
in her response brief, Plaintiff fails to argue that she has pled facts to show these elements, and she
offers no legal authority suggesting that she has done so. The motion to dismiss this claim is
granted.
A review of the Complaint reflects that the only factual allegations are based on the
purported malicious prosecution of Plaintiff. As Defendant argues, however, these allegations are
also deficient because they fail to allege facts sufficient to support the essential elements of the
claim. To state a claim for relief based on malicious prosecution, a plaintiff must allege facts to
show: 1) the defendant instituted a legal action; 2) that it did so with malice and without probable
cause; 3) the plaintiff successfully defended the action; and 4) the plaintiff suffered damages as a
result of the defendant’s actions. Callaway v. Parkwood Village, L.L.C., 1 P.3d 1003, 1005 n. 1
(Okla. 2000).
Although Plaintiff in this case has pled facts to show that Defendant initiated a criminal action, she
alleges no facts to show that it acted maliciously or without probable cause. On the contrary, she
alleges that it did so after its security personnel conducted an investigation. Complaint at ¶ 4.4.
That Plaintiff has listed the elements of a malicious prosecution claim in the Complaint does
not avoid dismissal. Paragraphs 5.3 through 5.8 are conclusory allegations which provide “no more
than a formulaic recitation” of the elements; wuch allegations are deficient and will not withstand
a motion to dismiss. Iqbal, 556 U.S. at 678. Accordingly, the motion to dismiss the malicious
prosecution claim is also granted.
As noted, Plaintiff’s response brief wholly fails to address any of the legal arguments
asserted by Defendant, and offers no authority to support her view that the Complaint is sufficient.
She concedes, in fact, that she must plead facts sufficient to state a plausible claim for relief and that
6
she cannot rely on the “bare assertion of legal conclusions.” Response brief, at p. 4.
Plaintiff
suggests, however, that the Court must accept as true the allegations in her Complaint. However,
under Twombly, not all factual allegations are “entitled to the assumption of truth,” Iqbal, 556 U.S.
at 678, and where the well-pleaded facts “do not permit the court to infer more than the mere
possibility of misconduct,” a complaint does not withstand a motion to dismiss. Id. Plaintiff’s
allegations in this case do not permit the Court to infer more than the mere possibility of misconduct
by Defendant.
The motion to dismiss must be granted.
Propriety of granting leave to amend:
Having determined that the motion to dismiss must be granted, the Court must consider
whether Plaintiff should be granted leave to amend in order to correct the noted deficiencies.
Brever v. Rockwell International Corp., 40 F. 3d 1119, 1131 (10th Cir. 1994). Plaintiff expressly
requests leave to do so. As a general rule, “‘if it is at all possible that the party against whom the
dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should
dismiss with leave to amend.’” Id. (quoting 6 C. Wright & A. Miller, Federal Practice & Procedure
§ 1483, at 587 (2d ed. 1990) and United States v. McGee, 993 F.2d 184, 187 (9th Cir. 1993)).
However, leave to amend is not automatically granted, and may be denied for reasons such
as futility of amendment or undue delay. See Foman v. Davis, 371 U.S. 178, 182 (1962); Hom v.
Squire, 81 F.3d 969, 973 (10th Cir.1996). A court properly may deny a motion for leave to amend
as futile when the proposed amended complaint would be subject to dismissal for any reason,
including that the amendment would not survive a motion for summary judgment. Bauchman for
Bauchman v. West High School, 132 F.3d 542, 562 (10th Cir. 1997)(citing AM Int'l, Inc. v. Graphic
7
Management Assocs., Inc., 44 F.3d 572, 578 (7th Cir.1995) and Wilson v. American Trans Air, Inc.,
874 F.2d 386, 392 (7th Cir.1989)).
Having reviewed the Complaint in its entirety, the Court concludes that leave to amend
should be granted. Although the allegations in the Complaint fail to state a plausible claim for relief,
the Court cannot state with certainty at this stage of the litigation that it would be futile to amend
to cure the pleading deficiencies. Accordingly, Plaintiff is authorized to file an amended complaint.
Conclusion:
For the foregoing reasons, the motion to dismiss [Doc. No. 10] is GRANTED. Plaintiff’s
request for leave to amend is also GRANTED. Plaintiff’s amended complaint shall be filed no later
than 14 days from the date of this Order. Defendant’s response shall be filed in accordance with the
deadline established by the Federal Rules of Civil Procedure.
IT IS SO ORDERED this 20th day of June, 2012.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?