Anzalone v. United Bank

• Decision Date: 08 October 2021
• Docket Number: Civil Action 1:21-cv-14-TFM-M
• Parties: FRANK ANZALONE, Plaintiff, v. UNITED BANK, Defendant.
• Court: U.S. District Court — Southern District of Alabama

FRANK ANZALONE, Plaintiff, v. UNITED BANK, Defendant.

Civil Action No. 1:21-cv-14-TFM-M

United States District Court, S.D. Alabama, Southern Division

October 8, 2021

MEMORANDUM OPINION AND ORDER

TERRY F. MOORER, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. Pro. 12(b)(6) and Fed. R. Civ. Pro 12(b)(1). Doc. 8, filed March 24, 2021. Defendant United Bank motions the Court to dismiss, pursuant to Fed.R.Civ.P 12(b)(1) and (6), Plaintiff Frank Anzalone's claims against it. Id. Having considered the motion response, reply, and relevant law, the Court finds the motion to dismiss is due to be GRANTED IN PART and DENIED IN PART.

I. PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background

This matter was originally filed by Plaintiff Frank Anzalone (“Anzalone”) in this Court on January 7, 2021. Doc. 1. In the Complaint, Anzalone brings three claims against Defendant United Bank (“United Bank”): (1) interference and retaliation in violation of the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), ^[1] 85 Fed. Reg. 19326-01 (Apr. 6, 2020) (to be codified at 29 C.F.R. pt. 826); (2) interference and retaliation in violation of the Family and Medical Leave Act (“FMLA”) of 1993, 29 U.S.C. §§ 2601-54; and (3) a violation of the Emergency Paid Sick Leave Act (“EPSLA”), ^[2] 85 Fed. Reg. 19326-01 (Apr. 6, 2020) (to be codified at 29 C.F.R. pt. 826).

On January 12, 2021, United Bank filed its Waiver of the Service of Summons, pursuant to Fed.R.Civ.P. 4(d)(3). Seventy-one days after United Bank filed its waiver, on March 24, 2021, it filed the instant motion to dismiss, to which Anzalone filed his response, and United Bank its reply. Docs. 8, 10, 12. The motion to dismiss is fully briefed and ripe for review, and the Court finds oral argument unnecessary.

II. STANDARD OF REVIEW

A. Fed.R.Civ.P. 12(b)(1)

A Fed.R.Civ.P. 12(b)(1) motion directly challenges the district court's subject matter jurisdiction. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007); Gilmore v. Day, 125 F.Supp.2d 468, 470 (M.D. Ala. 2000). The burden of proof for a Fed.R.Civ.P. 12(b)(1) motion is on the party averring jurisdiction. Gilmore, 125 F.Supp.2d at 471 (citing Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942)). A motion to dismiss for lack of subject matter jurisdiction may occur either facially or factually. Makro v. Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (citing Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)); Stalley v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (citing McElmurray, 501 F.3d at 1251).

A “facial attack” is based solely on the pleadings and requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. Stalley, 524 F.3d at 1232-33; Morrison, 323 F.3d at 925 n.5; Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). “On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a [Fed. R. Civ. P.] 12(b)(6) motion-the court must consider the allegations of the complaint to be true.” Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)); see also Houston v. Marod Supermarkets, 733 F.3d 1323, 1335 (11th Cir. 2013) (evaluating whether the plaintiff “has sufficiently alleged a basis of subject matter jurisdiction” in the complaint and employing standards similar to those that govern a Fed.R.Civ.P. 12(b)(6) review). The Court is “not required to accept mere conclusory allegations as true, nor are we required to accept as true allegations in the complaint that are contrary to factual details presented in the exhibits.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007). “[W]hen the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.” Id. at 1206. When discussing exhibits on a facial attack, the Court may consider exhibits that are attached to the complaint as well as those attached to a motion to dismiss. Lawrence v. United States, 597 Fed.Appx. 599, 602 (11th Cir. 2015).^[3] Exhibits attached to the complaint are considered part of the complaint for all purposes. Id. Further, exhibits attached to a motion to dismiss may be considered for a facial attack if the documents are central to the plaintiff's claim and their authenticity is not disputed. Id.

On the other hand, a “factual attack” challenges “subject matter jurisdiction in fact, irrespective of the pleadings.” Morrison, 323 F.3d at 925. On a Fed.R.Civ.P. 12(b)(1) factual attack, the court “may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56.” Lawrence, 919 F.2d at 1529 (citations and internal quotation marks omitted). Further, in resolving a factual attack, the court “may consider extrinsic evidence such as testimony and affidavits.” Makro, 543 F.3d at 1258 (quoting Morrison, 323 F.3d at 925 n.5); accord Stalley, 524 F.3d at 1233; Miccosukee Tribe of Indians of Fla. v. U.S., E.P.A., 105 F.3d 599, 603 (11th Cir. 1997) [hereinafter Miccosukee Tribe]. “[A] trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case without presuming the truthfulness of the plaintiff's allegations.” Makro, 543 F.3d at 1528 (citation and internal quotation marks omitted); see also Willett v. United States, 24 F.Supp.3d 1167, 1173 (M.D. Ala. 2014) (stating same). In other words, “the district court should apply a summary judgment standard when ruling on the motion to dismiss as a factual attack on subject matter jurisdiction.” Miccosukee Tribe, 105 F.3d at 603 (citing Lawrence, 919 F.2d at 1530).

However, the Court is not at liberty to weigh the evidence when the factual attack “also implicates an element of the cause of action.” Lawrence, 919 F.2d at 1529. The Eleventh Circuit has specifically cautioned district courts “should only rely on [Fed. R. Civ. P.] 12(b)(1) if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.” Morrison, 323 F.3d at 925 (quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997) (internal quotation marks omitted) (emphasis in original).

B. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

Pursuant to Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint on the basis that the plaintiff has failed to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“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.' [Twombly, 550 U.S.] at 570, 127 S.Ct. [at] 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556, 127 S.Ct. [at] 1955.”). Since a Fed.R.Civ.P. 12(b)(6) motion questions the legal sufficiency of a complaint, in assessing the merits of the motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990); but see also Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. at 1955) (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, all factual allegations shall be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989). Obviously, therefore, a district court may not resolve factual disputes when adjudicating a motion to dismiss. Page v. Postmaster Gen. and Chief Exec. Officer of the U.S. Postal Serv., 493 Fed.Appx. 994, 995 (11th Cir. 2012) (citing, among other cases, Lawrence, 919 F.2d at 1529, for the proposition that, under Fed.R.Civ.P. 12(b)(6), the existence of disputed material facts precludes a district court from granting a motion to dismiss). “‘When considering a motion to dismiss . . . the court limits its consideration to the pleadings and all exhibits attached thereto.'” Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006) (quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam)); see also Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1215-16 (11th Cir. 2012) (“Because the Ellis law firm's dunning letter and enclosed documents were attached to the Reeses' complaint as an exhibit, we treat them as part of the complaint for [Fed. R. Civ. P.] 12(b)(6) purposes.”).

III. DISCUSSION AND ANALYSIS

United Bank argues Anzalone's interference and retaliation claims pursuant to the EFMLEA and FMLA should be dismissed because he has not alleged facts that show he is entitled to leave under those provisions. Further, United Bank argues Anzalone's EPSLA claims should be dismissed for lack of subject matter jurisdiction because that claim is moot. The Court will address United Bank's arguments in turn as to each of Anzalone's claims.

A. Count 1 -...