Barber v. P'ship

• Decision Date: 20 April 2016
• Docket Number: CASE NO. 2:15-cv-954-WKW [wo]
• Parties: CHARLIE J. BARBER, II, Plaintiff, v. CELLCO PARTNERSHIP d/b/a, VERIZON WIRELESS Defendant.
• Court: U.S. District Court — Middle District of Alabama

CHARLIE J. BARBER, II, Plaintiff, v. CELLCO PARTNERSHIP d/b/a,VERIZON WIRELESS Defendant.

CASE NO. 2:15-cv-954-WKW [wo]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

April 20, 2016

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b)(1), this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law (Doc. 4, entered January 6, 2016). Pending before the Court is Defendant's Motion to Dismiss (Doc. 10, filed 2/12/16), Plaintiff's response (Doc. 12, filed 3/18/16), Defendant's reply (Doc. 13, filed 3/25/16), and Plaintiff's surreply (Doc. 14, filed 4/4/16). As such the motion is fully briefed and ripe for this court's review. For the reasons detailed below, the undersigned recommends (a) the motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(3) be denied; (b) the case be transferred to the appropriate venue in the Northern District of Alabama - Northeastern Division pursuant to 28 U.S.C. § 1404(a); and (c) any remaining motions including the remaining portion of the motion to dismiss for 12(b)(6) remain pending for the determination of the court in Northern District of Alabama.

I. BACKGROUND

This pro se complaint was filed by the plaintiff, Charlie J. Barber, II ("Plaintiff" or "Barber") on December 29, 2015. See Doc. 1. Plaintiff indicates that he resides in Huntsville, Alabama which is in Madison County and part the Northern District of Alabama (Northeastern Division). He sues Defendant Cellco Partnership d/b/a Verizon Wireless ("Defendant" or "Cellco") for employment discrimination. Defendant's has a business located in Huntsville, Alabama, though they assert their principal place of business is in Basking Ridge, NJ. See Doc. 10, ¶ 3, n. 1.

Plaintiff asserts a failure to promote, failure to accommodate, and denial of worker's compensation. Plaintiff claims he sustained a workplace injury which resulted in him taking several months of leave under the Family Medical Leave Act ("FMLA"). Plaintiff avers he was passed over for promotion while on leave while other persons not disabled have been promoted. See Doc. 1 at ¶ 9. He indicates this "goes against the ADA standards." Plaintiff uses a standard EEOC complaint template provided on the Middle District of Alabama's website at https://www.almd.uscourts.gov. The complaint pre-fills a number of items including paragraph 3 which states "This action is brought pursuant to Title VII of the Civil Rights Act of 1964 for employment discrimination. Jurisdiction is specifically conferred on the Court by 42 U.S.C. § 2000e-5. Equitable and other relief are also sought under 42 U.S.C. § 2000e-5(g)." Plaintiff lists his factual allegations in paragraph 9 listed verbatim here:

I was performing job functions above and beyond my scope of pay and was promised a promotion. I went out on FMLA in May 2014 due ongoing issues with my back from an injury sustained at the workplace. When I returned to work in August 2014 from FMLA, I wasn't informed that there was a promotion, but I found out from speaking with another co-worker in which I trained that he had been promoted to an EUS II. I inquired with Todd Schumacher as to why I wasn't promoted and he stated that I didn't complete my Cisco IP phone project completely of removing cables from up under the desk in the call center. I informed Todd Schumacher once again that I had back and hip issues and he knew of such issues, thus the reason that I was unable to complete the task assigned. I informed him that I also asked co-workers to complete the assignment to no avail. I informed Todd Schumacher of this injury and he stated that I still needed to get this completed. I then initiated contact with Todd's manager, Mr. Michael Dohar, who stated that he supports Todd's decision, since he's my direct line supervisor and he knows more about what I've been doing then he does. I informed Mr. Dohar, that everything he's been told was not the Truth, due to the fact that we werebeing told two different things. In conclusion, I was denied promotion twice due to my Disability and not being able to remove cables, which goes against ADA standards.

See Doc. 1 at ¶ 9. Plaintiff seeks recovery of back pay and reinstatement. Id. at ¶ 12.

II. JURISDICTION

Defendant challenges jurisdiction and venue in its motion to dismiss. Specifically, Defendant moves for dismissal under Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction), (b)(3) (improper venue), and (b)(6) (failure to state a claim upon which relief can be granted).

III. STANDARDS OF REVIEW

All litigants, pro se or not, must comply with the Federal Rules of Civil Procedure. Generally, complaints by pro se plaintiffs are read more liberally than those drafted by attorneys. Osahar v. U.S. Postal Serv., 297 Fed. Appx 863, 864 (11th Cir. 2008). Although the court is required to liberally construe a pro se litigant's pleadings, the court does not have "license to serve as de facto counsel for a party. . .or to rewrite an otherwise deficient pleading in order to sustain an action." GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted) (overruled on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)); see also Giles v. Wal-Mart Distrib. Ctr., 359 Fed. Appx. 91, 93 (11th Cir. 2009) (internal citations and quotation omitted) ("Although pro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally, this liberal construction does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.").

Further, it is important to note there are four potential standards of review at issue: Rule 12(b)(1) facial attack, Rule 12(b)(1) factual attack, Rule 12(b)(3), and Rule12(b)(6).

A. Federal Rule of Civil Procedure 12(b)(1) - Lack of Subject Matter Jurisdiction

A Rule 12(b)(1) motion directly challenges the district court's subject matter jurisdiction. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty, 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 on a Rule 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 America, 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 Regional 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 Rule 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) (The Court evaluates whether the plaintiff "has sufficiently alleged a basis of subject matter jurisdiction" in the complaint and employs standards similar to those governing a Rule 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. Whendiscussing exhibits on a facial attack, the Court may consider exhibits 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). 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 Rule 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. 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 Florida v. U.S., E.P.A., 105 F.3d 599, 603 (11th Cir. 1997). The 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 (internal quotations 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 ...