Opinion
CIVIL ACTION NO. 03-3373, SECTION "R" (3)
May 18, 2004
ORDER AND REASONS
Before the Court is defendants' motion to dismiss plaintiff's complaint based plaintiff's failure to state a claim, lack of jurisdiction, and plaintiff's lack of standing. Plaintiff filed an opposition to defendant's motion that is styled as an answer and "cross claim" to defendant's motion. In his opposition, plaintiffs opposes defendants' motion and moves the Court for judgment on all of his claims as a matter of law. The Court construes plaintiff's opposition as a cross motion for judgment on the pleadings. For the following reasons, the Court grants defendants' motion and denies plaintiff's cross motion.
See United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (noting that courts should construe pro se complaints liberally); see also FED. R. Civ. P. 8(f) ("All pleadings shall be so construed as to do substantial justice.")
I. Background
Plaintiff asserts that he served in the United States Army from 1981 until January 2003, when the Army discharged him because he was educationally unqualified. He states that he remained on active duty from 1981 until 1988, when he went into the Individual Ready Reserve ("IRR"). Plaintiff avers that upon activation from the IRR in September of 1999, he underwent a physical examination in December of 1999 that included a test for the Human Immunodeficiency Virus ("HIV"). Plaintiff alleges that defendants informed him that the HIV test was inconclusive and ordered him to submit to a second HIV test in January of 2000. Plaintiff contends that both the December 1999 and January 2000 HIV tests yielded positive results, but the Army never informed him of these results, nor did the Army counsel him about his HIV-positive condition. Plaintiff asserts that he did not find out about his condition until April of 2002, which was over two years after the positive test results, when he was hospitalized with "pneumocystis pneumonia," which is allegedly an opportunistic infection associated with the final stages of an HIV infection.
Plaintiff filed this suit against the Secretary of Defense, the Secretary of the Army, and the Commander of the United States Army Reserve. Plaintiff filed his claims against these defendants in both their individual and official capacities. Plaintiff alleges numerous claims in his complaint. He primarily alleges negligence by defendants in failing to follow their own regulations and procedures. He alleges that defendants were negligent when they violated their own regulations by failing to: (1) inform him of his positive HIV test results after both the December 1999 and January 2000 HIV tests; (2) process him for a "MED separation" when they discovered he was HIV positive; (3) medically discharge him when he contracted pneumonia in April of 2002; (4) counsel him about his HIV-positive condition; (5) treat plaintiff's condition after he tested positive for HIV; (6) administer a physical evaluation in 1997; (7) administer another physical evaluation within two years after the December 1999 — January 2000 exam; (8) send his file to the promotion board from 1995-2000, during which time he was eligible for consideration for promotion; and (9) notify plaintiff of the educational requirements for promotion. Plaintiff also amended his complaint to allege that defendants were negligent when they made him subject to taking the Anthrax vaccine after they had diagnosed him with HIV.
Complaint, ¶¶ 30-31.
Id., ¶¶ 26-27. Plaintiff never indicates what a "MED separation" is. In this same context, plaintiff also states that defendants were negligent for failing to initiate an "MEB" and for failing to process him for a "PEB separation" but again fails to indicate what either is. Id. In his prayer for relief, plaintiff seeks a "[m]edical separation," id. at ¶ I, p. 25, and the Court considers plaintiff's references to MED and PEB separations and to MEB to be references to medical separations.
Id., ¶ 50.
Id., ¶ 32.
Id.
Id., ¶¶ 16-17. Plaintiff asserts that Army regulations mandate a physical evaluation every five years for IRR service members, and because he underwent a physical evaluation in 1992, he should have undergone another in 1997. He contends that if the Army had administered an exam in 1997 in accordance with their regulations, the exam would have determined whether he was HIV-positive at that time.
Id., ¶¶ 37-39. Plaintiff asserts that Army regulations mandate a physical evaluation every two years for each soldier over forty years of age. He contends that if he had received the requisite examination by January 2002, he would have known about his HIV-positive condition earlier and could have treated the condition before it progressed further.
Id., ¶ 53; see also id., Ex. 2 Letter from the Army Office of Promotions, Reserve Components to Johnny Duncan dated Apr. 28, 2003.
Id., ¶ 53.
Amended Complaint, ¶ 79. Plaintiff does not allege that he took the Anthrax vaccine.
Plaintiff alleges that defendants' failure to inform him of his HIV-positive condition and to give him a medical discharge was intentional, careless, reckless, negligent, grossly negligent, and deliberately indifferent. Plaintiff also asserts that defendants violated his due process rights when they failed to give him a medical discharge. Moreover, plaintiff avers that defendants denied him equal protection because they treated him differently than they treated other service members that tested positive for HIV. In support of this claim, he contends that defendants informed other HIV-positive service members of their infection and provided counseling, medical referrals, preventative care, treatment, medical discharges, and other regulation-mandated services and options. Further, plaintiff alleges that defendants knowingly and willfully infected him with HIV by using contaminated needles to take blood samples and/or failed to inform him of his infection as a part of a "covert and sinister scheme" to use him as a research test subject.
Complaint, ¶¶ 63, 69.
Id., ¶ 27.
Id., ¶ 70.
Id.
Id., ¶ 72.
Plaintiff alleges various statutory and constitutional bases for his claims. He cites the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq.; the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; 42 U.S.C. § 1981, 1982 and 1983; and 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiff also alleges due process and equal protection violations. Plaintiff seeks numerous forms of relief, including declaratory judgments, a permanent injunction enjoining the defendants from continuing the policies and practices described in the complaint, compensatory and punitive damages, costs, injunctive relief in the form of retroactive promotions, medical separation, and a correction of military records.
Id., ¶¶ 27, 54, 58, 60, 70-71.
Defendants now move to dismiss plaintiff's complaint based on lack of jurisdiction, plaintiff's failure to state a claim, and plaintiff's lack of standing, and plaintiff moves for judgment on the pleadings.
II. Defendants' Motion to Dismiss
A. Official Capacity Claims — Sovereign Immunity
Plaintiff asserts numerous claims against the Secretary of Defense, Secretary of the Army, and Commander of the Army Reserve in their official capacities. Plaintiff seeks monetary damages, which implicates the United States as the real party in interest. See Brooks v. Snow, 2004 WL 720365, *3 (S.D.Tex.) (citing Bank One, Tex., N.A. v. Taylor, 970 F.2d 16, 33 (5th Cir. 1992)); see also Rhyne v. Perry, 1995 WL 77970, *3 (S.D.N.Y.) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)); Smith v. United States, 1993 WL 597489, *4 (D. Idaho) (noting that "[i] t is well settled that an action against an officer or agent of the United States government with respect to actions taken in his or her official capacity is considered to be against the United States itself.").
Defendants argue that plaintiff's claims are barred by sovereign immunity. Defendants move to dismiss these claims for failure to state a claim. In this circuit, however, claims barred by sovereign immunity are properly dismissed without prejudice for want of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), rather than with prejudice for failure to state a claim under Rule 12(b)(6). See Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996); Baker v. Murphy Oil USA, Inc., 2000 WL 526870, *2 (E.D.La.). The Court therefore considers defendants' motion to dismiss these claims as a motion to dismiss for lack of subject matter jurisdiction.
1. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Furthermore, the plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
2. Tort Claims
Plaintiff alleges claims sounding in negligence, gross negligence and intentional tort, based on defendants' failure to follow Army regulations in numerous respects. The United States is immune from tort suits except as to the manner and degree that sovereign immunity is waived. See Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). Congress granted a partial waiver of sovereign immunity through the enactment of the Federal Tort Claims Act. See id. The FTCA provides that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Under 28 U.S.C. § 1346 (b)(1), the district courts have exclusive jurisdiction over civil claims against the United States for certain torts of federal employees acting within the scope of their employment.
Thus, the FTCA contemplates that the Government may sometimes be liable for negligence of its military personnel. See Feres v. United States, 340 U.S. 135, 138 (1950). In Feres, however, the Supreme Court delineated an exception to the FTCA's waiver of immunity. See Miller v. United States, 42 F.3d 297, 300 (5th Cir. 1995). Under the Feres doctrine, "the government is not liable under the FTCA for injuries to servicemen arising out of or in the course of activity incident to [military] service." See Feres, 340 U.S. at 146. The Feres doctrine bars claims sounding in negligence and intentional tort. See Aviles v. United States, 696 F. Supp. 217, 219 (E.D.La. 1988) (citing cases).
The Fifth Circuit has articulated certain factors, embodied in the Parker test, to aid in the determination of whether the injury arose out of or in the course of activity "incident to service." See Miller, 42 F.3d at 301 (citing Parker v. United States, 611 F.2d 1007, 1008 n. 1 (5th Cir. 1980)). These factors include (1) the duty status of the serviceman, (2) the site of injury, and (3) the activity of the serviceman at the time of the injury. See Parker, 611 F.2d at 1013. Whether an activity is "incident to service" depends on the totality of the circumstances, including Parker's three factors and the rationales behind the Parser test. See Miller, 42 F.3d at 301-02. The primary rationale behind Parser's formulation is that suits against the government for injuries sustained incident to service are the types of claims that, if allowed, "would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." Miller, 42 F.3d at 303 (citing United States v. Johnson, 481 U.S. 681, 690 (1987)). Hence, "injuries are 'incident to service' if an inquiry into the Government's liability for those injuries would require civilian courts to second-guess military decisionmaking." Id. at 304.
Of the three Parker factors, "the duty status of the service member" is generally the factor that courts consider the most indicative of the connection between the service member and the government at the time of the injury, and thus it is the most important factor. Adams v. United States, 728 F.2d 736, 739 (5th Cir. 1984). Courts "view duty status as a continuum ranging from active duty to discharge," with Feres applying to a serviceman on activity duty status but not to one who has been discharged. Schoemer v. United States, 59 F.3d 26, 29 (5th Cir. 1995). Further, the Fifth Circuit has held that Feres applies to reservists. See id. at 29.
Here, plaintiff was either in the IRR or on active duty when defendants committed the allegedly tortious conduct. Plaintiff's allegations center around the physical examinations that Army regulations required as a part of his service. As such, the Court finds that plaintiff's alleged injuries arose out of or in the course of activity incident to service. Cf. Schoemer, 59 F.3d at 30 (finding that serviceman's preenlistment medical examination was incident to military service). The Court therefore finds that the Feres doctrine bars plaintiff's claims grounded in negligence, gross negligence, and intentional tort. Cf. id. (concluding that the Feres doctrine barred serviceman's FTCA claim based on delay in treatment of condition diagnosed during his preenlistment medical examination) (citing numerous cases in which the Feres doctrine barred claims based on medical examinations that were a prerequisite to service); Bowers v. United States, 904 F.2d 450, 452 (8th Cir. 1990) (holding that the Feres doctrine barred serviceman's FTCA claim based on the doctor's failure to discover cancer in his pre-induction physical).
Because the Feres doctrine applies here, the United States is entitled to sovereign immunity from plaintiff's tort claims against the United States, and the Court dismisses these claims without prejudice.
3. Section 1981, 1982 and 1983 and Constitutional Violation Claims
The Fifth Circuit has "long recognized that suits against the United States brought under the civil rights statutes are barred by sovereign immunity." Affiliated Professional Home Health Care Agency, 164 F.3d 282, 286 (5th Cir. 1999). In addition, the United States is protected by sovereign immunity from claims based on constitutional violations. See Williamson v. United States Dept. of Agriculture, 815 F.2d 368, 380-81 (5th Cir. 1987). The Court therefore dismisses without prejudice plaintiff's claims based on alleged civil rights and constitutional violations against the defendants in their official capacities.
B. Individual Capacity
Duncan also sues the defendants in their individual capacities. Although defendants never distinguish in their motion to dismiss between claims alleged against them in their official and individual capacities, the Court considers defendants' motion as a motion to dismiss the claims against them in their individual capacities for failure to state a claim.
1. Legal Standard
In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). The Court must resolve doubts as to the sufficiency of the claim in plaintiff's favor. See Vulcan Materials Company v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). Dismissal is warranted if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. See id.; Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)). 2. Tort Claims
The FTCA provides "the exclusive remedy for compensation for a federal employee's tortious acts committed in the scope of employment." McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998) (citing 28 U.S.C. § 2679). Plaintiff may not maintain a claim against the defendants in their individual capacities based on such acts. See id. (noting that "[t]o sue successfully under the FTCA, a plaintiff must name the United States as the sole defendant.") Plaintiff asserts in his complaint that defendants acted under the color of federal law at all relevant times. There is no indication that plaintiff's complaint is based on acts committed outside the scope of defendants' employment. Accordingly, the Court dismisses any claims against the individual defendants based on allegedly tortious acts committed within the scope of their employment.
3. Section 1981, 1982 and 1983 Claims and Constitutional Claims
As noted above, plaintiff alleges claims under Section 1981 against defendants. Section 1981 provides that "[a]11 persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Section 1981 also states that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c) (emphasis added). Under the clear language of the statute, plaintiff may not maintain claims of discrimination by federal defendants acting under the color of federal law under Section 1981. See Dotson v. Griesa, 2001 WL 293962, *4 (S.D.N.Y. 2001). The Court therefore dismisses plaintiff's Section 1981 claims against defendants in their individual capacities.
Section 1982 provides "[a]ll citizens shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Thus, Section 1982 "bars all racial discrimination, private as well as public, in the sale or rental of property[.]" Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968). Plaintiff's complaint does not refer to any sale or rental of property, nor does it allege any discrimination related to such a sale or rental. Thus, plaintiff fails to state a claim under Section 1982, and the Court dismisses these claims.
Although plaintiff alleges claims under Section 1983 and the Fourteenth Amendment, the Court construes these claims against the individual defendants as Bivens claims. See Bivens v. Six Unknown Agents, 403 U.S. 388 (1971); cf. James v. U.S. ex rel. Federal Bureau of Prisons, 2003 WL 22888790, *2 (E.D.La.); Muzzi v. U.S. Government, 2002 WL 922378, *1-2 (E.D.La.). A Bivens action is analogous to an action under Section 1983 — the only difference is that Bivens applies to constitutional violations by federal, rather than state officials. See Abate v. Southern Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993); Muzzi, 2002 WL 922378, at *1-2. Bivens extends the protections afforded by Section 1983 to parties injured by federal actors not liable under Section 1983. Id. Thus, in order to establish a Bivens claim, a plaintiff must satisfy the requirements under Section 1983. A plaintiff may bring Bivens claims against federal agents only in their individual capacities because the purpose of Bivens is to deter the agent from violating civil rights. See Belaire v. Dufrene, 2000 WL 1300389, *3 (E.D.La.) (citing Whitley v. Hunt, 158 F.3d 882, 885 (5th Cir. 1998)). As a result, the Court construes plaintiff's Section 1983 and constitutional claims as Bivens claims against the defendants in their individual capacities.
The Supreme Court has applied the rationale behind the Feres doctrine to bar Bivens claims in the same military context. See United States v. Stanley, 483 U.S. 669, 678-85 (1987) (holding that "no Bivens remedy is available for injuries that 'arise out of or are in the course of activity incident to service.'") (quoting Feres, 340 U.S. at 146); Chappell v. Wallace, 462 U.S. 296, 305 (1983) (concluding that enlisted military personnel may not sue a superior officer to recover damages for alleged constitutional violations, due to concerns about "the disruption of the peculiar and special relationship of the soldier to his superiors that might result if the soldier were allowed to hale his superiors into court.") (internal quotations omitted). Because the Court finds that plaintiff's alleged injuries arose out of activity incident to service, the Court dismisses plaintiff's Bivens claims.
C. Title VII and ADA Claims
Title VII of the 1964 Civil Rights Act provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a). The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
Courts have held that Title VII and the ADA are inapplicable to members of the armed services. See, e.g., Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002) (noting that Title VII is "inapplicable to uniformed members of the armed services, including members of the Army Reserves."); Brown v. United States, 227 F.3d 295, 298 (5th Cir. 2000) (Title VII); Baldwin v. United States Army, 223 F.3d 100, 101-02 (2d Cir. 2000) (ADA); Coffman v. State of Michigan, 120 F.3d 57, 59 (6th Cir. 1997) (ADA). The Court therefore dismisses plaintiff's Title VII and ADA claims.
D. Claims for Declaratory and Injunctive Relief
Plaintiff asserts claims for declaratory relief, in which he seeks a declaration that defendants' regulations that allow defendants to fail to inform service members of HIV positive test results and to overlook service member's medical condition and discharge them for other reasons are unconstitutional. Plaintiff also seeks a permanent injunction against defendants to enjoin them from denying servicemen equal protection.
First, the Court notes Duncan fails to identify regulations that permit defendants to fail to inform servicemen of their HIV positive test results and to overlook a serviceman's medical condition when discharging him. Indeed, plaintiff alleges that defendants violated their own regulations when they failed to inform him of his medical condition and based his discharge on pretextual reasons. Plaintiff also fails to identify any specific regulation or policy under which he was denied equal protection. He argues only that defendants treated him differently than white servicemen because defendants failed to inform him of his HIV-positive condition and failed to provide him with counseling and proper medical treatment, yet they informed white HIV-positive servicemen of their condition and provided white servicemen with counseling and treatment. Plaintiffs claims for declaratory and injunctive relief therefore fail to state a claim. Cf. Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (noting that plaintiff's request for statewide relief failed because he failed to identify specific unconstitutional state policies or their application to other correctional institutions); Beck v. LaFleur, 257 F.3d 764, 766 (8th Cir. 2001) (upholding district court's dismissal of plaintiff's claims that failed to identify specific policies that resulted in the alleged deprivation of property without due process of law).
Furthermore, the Court considers whether plaintiff's claims for declaratory and injunctive relief are justiciable. Although the Supreme Court concluded in Chappell that enlisted military personnel may not maintain a Bivens claim for damages against a superior officer, the Court specifically noted that its holding did not imply that "military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service." Chappell, 462 U.S. at 304. As the Second Circuit recently noted in Dibble v. Fenimore, 339 F.3d 120 (2d Cir. 2003), there is disagreement among the circuits after Chappell "regarding the justiciability of claims by members of the . . . active military who seek equitable relief for alleged constitutional violations in personnel decisions." Id. at 126. In Dibble, the Second Circuit joined the Fifth, Seventh, Eighth, Ninth, and D.C. Circuits in "allowing equitable challenges to personnel decisions only when they constitute facial challenges to the constitutionality of military regulations and not in cases of discrete individualized actions." Id.; see also Crawford v. Tax. Army Nat'l Guard, 794 F.2d 1034, 1036-37 (5th Cir. 1986). In Crawford, the Fifth Circuit noted that to give effect to Chappell's rule of deference to military personnel decisions, courts must carefully regulate suits seeking injunctive relief "in order to prevent intrusion of the courts into the military structure." Crawford, 794 F.2d at 1037; see also Farmer v. Mabus, 940 F.2d 921, 924 (5th Cir. 1991). The Crawford court concluded that the nature of the underlying lawsuit, and not the relief sought, determines whether a claim is justiciable. See Crawford, 794 F.2d at 1036. Here, plaintiff's claims for declaratory and injunctive relief are based solely on the discrete personnel actions taken with respect to plaintiff. As noted above, plaintiff fails to challenge a specific regulation or policy that is applicable to servicemen generally. His complaint focuses solely on the actions that defendants took or failed to take as they related to his personal situation. Because his claims amount to no more than a reassertion of his challenge to defendants' personnel decisions, the Court finds that plaintiff's claims for declaratory and injunctive relief are not justiciable. Cf. Farmer, 940 F.2d at 924 (plaintiff's suit for injunctive relief not justiciable because it was "little more than a direct attack on a personal order of the Mississippi National Guard commander-in-chief."). The Court therefore dismisses plaintiff's claims for declaratory judgment and a permanent injunction.
E. Other Non-Monetary Relief
Further, plaintiff seeks retroactive promotions, a medical separation and corresponding retirement benefits, and a correction of his military records. The Fifth Circuit requires exhaustion of available service-connected remedies as a prerequisite to judicial review of a service member's grievances. See Crawford, 794 F.2d at 1036 (finding plaintiffs' claims for correction of military records and reinstatement for eligibility for benefits premature because plaintiffs had failed to appeal to the Army Board for the Correction of Military Records). Here, defendants contend that plaintiff's appeal with the Army Board for Correction of Military Records ("ABCMR") is still outstanding. In support, defendants attach the affidavit of Carl Chun, ABCMR Director, who attests that plaintiff filed an application for relief with the ABCMR, and the application is pending. The Court therefore dismisses as premature plaintiff's claims for retroactive promotions, a medical separation and corresponding retirement benefits, and a correction of his military records.
Defs.' Mot. to Dismiss, Declaration of Carl W.S. Chun.
IV. Plaintiff's Motion for Judgment on the Pleadings
For all of the reasons stated above, the Court dismisses plaintiff's claims. For these same reasons, the Court denies plaintiff's motion for judgment on the pleadings.
V. Conclusion
For the foregoing reasons, the Court grants defendant's motion to dismiss, dismisses plaintiff's complaint, and denies plaintiff's cross motion for judgment on the pleadings.