United States District Court, E.D. Virginia, Richmond Division
KELLY M. BLANKENSHIP, Plaintiff,
AMERICAN FEDERAL GOVERNMENT EMPLOYEES, Defendant.
M. Hannah Mauck, United States District Judge.
Before the Court is Defendant American Federal Government Employee's ("AFGE" or the "Union") Motion to Dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)(ECF No. 4); pro se Plaintiff Kelly M. Blankenship's "Motion to Dissmiss [sic] the Defendant's Motion to Dismiss Complaint Case Number 3:15-cv-294 with Prejudice Pursuant to Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6)" (the "Motion to Dismiss the Motion to Dismiss") (ECF No. 9); and, Blankenship's "Request for Entry of Default and/or a Ruling in Favor of the Plaintiff ("Request for Entry of Default") (ECF No. 11). As to AFGE's Motion to Dismiss, Blankenship responded, and AFGE replied. (ECF Nos. 8, 13.) The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331. The Court dispenses with oral argument because the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process. This matter is ripe for disposition.
For the reasons that follow, the Court will grant AFGE's Motion to Dismiss. (ECF No. 4.) Because the Court will grant AFGE's Motion to Dismiss, the Court will deny as moot Blankenship's Motion to Dismiss the Motion to Dismiss and Request for Entry of Default. (ECF Nos.9, 11.)
I. Standards of Review
A. Lack of Subject Matter Jurisdiction: Rule 12(b)(1)
In a motion to dismiss under Fed.R.Civ.P. 12(b)(1) challenging the Court's subject matter jurisdiction, the burden rests with the plaintiff, as the party asserting jurisdiction, to prove that federal jurisdiction is proper. See Int'l Longshoremen's Ass 'n v. Va. Int'l Terminals, Inc., 914 F.Supp. 1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) can attack subject matter jurisdiction in two ways. Relevant here, a Rule 12(b)(1) motion may attack the complaint on its face, asserting that the complaint fails to state a claim upon which subject matter jurisdiction can lie. See Int'l Longshoremen's Ass'n, 914 F.Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a challenge, a court assumes the truth of the facts alleged by plaintiff, thereby functionally affording the plaintiff the same procedural protection he or she would receive under Rule 12(b)(6) consideration. See Int'l Longshoremen's Ass'w, 914 F.Supp. at 1338; see also Adams, 697 F.2d at 1219.
B. Federal Rule of Civil Procedure 12(b)(6)
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those that "show" a claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570; Fed.R.Civ.P. 8(a)(2)). "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 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).
C. Obligation to Construe Pro Se Pleadings Liberally
District courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va. 1999). A pro se plaintiff such as Blankenship must nevertheless allege "facts that state a cause of action." Id. (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims" that the litigant failed to raise on the face of the complaint. Newkirk v. Circuit Court of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).
D. Effect of Extrinsic Documents
The parties have placed numerous extrinsic documents before the Court. "If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However, "a court may consider official public records, documents central to plaintiffs claim, and documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion into one for summary judgment] so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 F.App'x 395, 396-97 (4th Cir. 2006) (citing Alt.. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 ...