United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION & ORDER
Raymond A. Lackson United States District Judge
matter is before the Court pursuant to a Motion to Dismiss
filed by Defendants Clearview Eye Care, Inc., d/b/a Coastal
Vision ("Clearview"), Russell A. Beach
("Beach"), Scott Nilsson ("Nilsson"),
Jessica Lin-Nilsson ("Lin-Nilsson") and Abhner R.
Wang ("Wang") (collectively,
"Defendants"). Dkt. 4. Also before the Court are
Defendants' Motion to Award Fees, Dkt. 6, and Plaintiff
James Zurafs ("Plaintiff or "Zuraf') Cross
Motion to Award Fees, Dkt. 13. For the reasons stated herein,
the Court GRANTS IN PART and DENIES IN PART Defendants'
Motion to Dismiss, Dkt. 4, DENIES Defendants' Motion to
Award Fees, Dkt. 6. and DENIES Plaintiffs Motion to Award
Fees, Dkt. 13. A hearing is unnecessary to resolve the
action arises from Defendants' alleged wrongful
termination of and failure to hire Plaintiff due to his age,
in violation of the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621 et seq.
Compl. ¶ 11. Plaintiff was born on September 15, 1954,
and he worked as a Virginia State Licensed Optician. Compl.
¶¶ 2, 20. In April 1997, "Dr. Hal W.
Breedlove, O.D., P.C. operating under the trade name Coastal
Vision Center ("Coastal Vision") hired Plaintiff as
Practice Manager." Compl. ¶ 22. As Practice
Manager, "Plaintiff managed the daily operations of
Coastal Vision, " and his "main duties included,
but were not limited to: hiring and firing of staff,
preparing payroll, handling human resources issues,
negotiating and executing vendor contracts, purchasing
frames, lenses, and equipment, and resolving patients'
complaints." Compl. ¶¶ 24, 25. The Complaint
alleges that Dr. Breedlove "was the only owner of
Coastal Vision, but he employed Wang, S. Nilsson, and
Lin-Nilsson as optometrists at his practice." Compl.
¶ 28. The Complaint further avers that "Defendants
subjected Plaintiff to disparaging comments about his
age." Compl. ¶ 30.
to the Complaint, "[i]n or around May of 2013, Wang, S.
Nilsson, Lin-Nilsson announced that they, together with Beach
and Clearview, were purchasing Coastal Vision from
Breedlove" and "introduced themselves as the
'new owners' of Coastal Vision to all employees,
vendors and patients." Compl. ¶¶ 31, 32. Then,
"[o]n or about August 16, 2013, Wang and Lin-Nilsson
conducted a meeting with Plaintiff to discuss his employment
under the new ownership of Coastal Vision. Wang and
Lin-Nilsson stated that upon completion of the sale of the
practice. Plaintiff would be terminated." Compl. ¶
33. Plaintiff claims that he "stated he was interested
in remaining with Coastal Vision in the capacity of an
Optician at lower pay rate." Compl. ¶ 34. The
Complaint alleges that "[o]n or about August 16, 2013,
Plaintiff applied for an Optician position." Compl.
¶ 35. Although "Wang stated that he would discuss
the option of hiring Plaintiff as an Optician with the other
owners, and that he would set up a meeting to interview
Plaintiff, " Compl. ¶ 36, "[o]n August 27,
2013, S. Nilsson informed Plaintiff that he would not be
re-hired or considered for any position at Coastal Vision,
including both the Practice Manager and Optician positions,
" Compl. ¶ 38.
sale of Coastal Vision to Clearview, Beach, Wang, S. Nilsson,
and Lin-Nilsson occurred on or about September 6, 2013.
Compl. ¶ 39. That same day, "Clearview, Beach,
Wang, S. Nilsson, and Lin-Nilsson terminated Plaintiff."
Compl. ¶ 40. According to the Complaint, "all of
the employees of Coastal Vision, with the exception of
Plaintiff, were interviewed by Wang, S. Nilsson, Lin-Nilsson,
and Beach, " and were not terminated. Compl.
¶¶ 43, 44. Both the Practice Manager position and
the Optician position were "filled by a person who was
substantially younger than Plaintiff." Compl.
¶¶ 71, 72.
Complaint additionally alleges that "at the relevant
times alleged herein, Defendants were operating either as
Clearview Eye Care, Inc. or were operating as general
partners." Compl. ¶ 4. Furthermore, "Clearview
has at least 15 employees." Compl. ¶ 5. According
to the Complaint, "Defendants qualify as an
'employer' as set forth in the Age Discrimination in
Employment Act of 1967, as codified, 29 U.S.C.§§
621 el seq." Compl. ¶ 10. Plaintiff claims
he "filed a Charge of Discrimination against Clearview
Eye care, Inc. [sic] d/b/a Coastal Vision and its owners for
the unlawful employment practices set forth herein with the
United States Equal Employment Opportunity Commission
("EEOC") and did so within the required time limits
specified by law and regulation." Compl. ¶ 16. The
EEOC sent Plaintiff a Notice of Right to Sue on or about
September 28, 2015. Compl. ¶ 17; Compl., Ex. 1. The
Dismissal and Notice of Right to Sue states that Plaintiff
"may file a lawsuit against the respondent(s);"
however, it does not appear that the Notice identified the
respondent(s) by name. Compl., Ex. 1.
filed the Complaint on December 23, 2015. Dkt. 1. On February
26, 2016, Defendants submitted the instant Motion to Dismiss
and Motion to Award Fees. Dkts. 4, 6. Plaintiff responded in
opposition to both motions on March 8, 2016. Dkts. 11, 12.
Additionally, Plaintiff submitted a Cross Motion to Award
Fees on March 8, 2016. Dkt. 13. Defendants replied on March
11, 2016. Dkts. 15, 16.
STANDARD OF REVIEW
Motion to Dismiss
base their Motion to Dismiss on Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). See Dkt. 4. Federal
Rule of Civil Procedure 12(b)(1) permits a defendant to move
for dismissal if the court lacks subject matter jurisdiction
over a claim or the cause of action as a whole. See
Fed. R. Civ. P. 12(b)(1). In deciding such a motion, the
Court assumes that all factual allegations in the complaint
are true. Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). If the defendant challenges the factual basis for
jurisdiction, the plaintiff bears the burden of proving
proper subject matter jurisdiction. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). To determine whether
subject matter jurisdiction exists, the reviewing court may
consider evidence outside the pleadings, such as affidavits
or depositions, Adams, 697 F.2d at 1219, or any
other evidence submitted on the issue. GTE South Inc. v.
Morrison, 957 F.Supp. 800, 803 (E.D. Va. 1997). A party
moving for dismissal for lack of subject matter jurisdiction
should prevail only if material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as
matter of law. Richmond, Fredericksburg & Potomac
R.R. Co., 945 F.2d at 768.
Rule of Civil Procedure 12(b)(6) provides for dismissal of
actions that fail to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). Under Federal
Rule of Civil Procedure 12(b)(6), a motion to dismiss tests
the sufficiency of a complaint; 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). The Supreme
Court has stated that in order "[t]o 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."' Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly,550 U.S. 544, 570 (2007)); see also
Venkatraman v. REI Sys., Inc.,417 F.3d 418, 420 (4th
Cir. 2005) ("In considering a motion to dismiss, we
accept as true all well-pleaded allegations and view the
complaint in the light most favorable to the plaintiff)
(citing Mylan Labs., Inc. v. Matkari,7 F.3d 1130,
1134 (4th Cir. 1993)). A complaint establishes facial
plausibility "once the factual content of a complaint
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,591 F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal,
556 U.S. at 678). Therefore, the complaint need not include
"detailed factual allegations" as long as it pleads
"sufficient facts to allow a court, drawing on judicial
experience and ...