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Zuraf v. Clearview Eye Care, Inc.

United States District Court, E.D. Virginia, Norfolk Division

August 9, 2016

JAMES ZURAF Plaintiff,


          Raymond A. Lackson United States District Judge

         This 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 instant Motions.

         I. BACKGROUND

         A. Factual Allegations

         This 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.

         According 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.

         Breedlove's 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.

         The 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.

         B. Procedural History

         Plaintiff 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.


         i. Motion to Dismiss

         Defendants 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.

         Federal 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., 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 ...

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