Daniela Wallace Vs. John M. Mchugh, Secretary US Army

MOTION to Dismiss or in the Alternative, MOTION for More Definite Statement

W.D. Tex.April 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DANIELA WALLACE, Plaintiff v. ROBERT M. SPEER1, ACTING SECRETARY OF THE ARMY Defendant § § § § § § § § Civil Action No. 5:16-CV-1218-DAE DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT COMES NOW, Defendant Robert M. Speer, in his Official Capacity as Acting Secretary of the United States Department of the Army, by and through the undersigned Assistant United States Attorney, and moves to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). In the alternative, Defendant moves for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). I. INTRODUCTION Daniela Wallace is a former federal civilian employee at Fort Sam Houston, Texas. Ms. Wallace filed an Equal Employment Opportunity (EEO) complaint alleging that she was removed from federal service during her probationary period because of her race (Hispanic) and gender. See PLAINTIFF’S ORIGINAL COMPLAINT, Clerk’s Doc. #1 at p. 4. In her lengthy, seventeen-page complaint, Ms. Wallace provides no jurisdictional basis and does not state what specific claims she is pursuing in federal court. She further includes in her complaint allegations regarding the handling of her EEO complaint, which as discussed below, are not actionable in federal court. As 1 On January 20, 2017, the President appointed Robert M. Speer as Acting Secretary of the Department of the Army. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Robert M. Speer should be substituted for John M. McHugh as the defendant in this lawsuit. Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 1 of 8 DEFENDANT’S MOTION TO DISMISS Page 2 of 8 such, the Court should dismiss her judicial complaint or, in the alternative, direct her to file a more definite statement. II. APPLICABLE STANDARDS OF REVIEW A. Federal Rule of Civil Procedure 12(b)(1) An action may proceed in this Court only if federal subject matter jurisdiction exists. Navigators Ins. Co. v. Moncla Marine Ops., LLC, 567 F. App’x 258, 260-61 (5th Cir. 2014). To that end, Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims for lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction may be based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Castro v. United States, 560 F.3d 381, 386 (5th Cir. 2009); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 2001)). A motion to dismiss for lack of subject matter jurisdiction is characterized as either a “facial” attack, wherein the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a “factual” attack, wherein the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10- 1015, 2011 Bankr. LEXIS 67, *8-9 (E.D. Tex. Jan. 6, 2011) (citing Rodriguez v. Texas Comm'n on the Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5th Cir. 2000)). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 Bankr. LEXIS 67, *9 (citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995)). In contrast, a defendant making a Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 2 of 8 DEFENDANT’S MOTION TO DISMISS Page 3 of 8 factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Teamer v. Napolitano, 2012 U.S. Dist. LEXIS 60833, *18 (S.D. Tex. May 1, 2012) (citing Paterson, 644 F.2d at 523). The plaintiff bears the burden of proof that subject matter jurisdiction does exist, and when challenged, the plaintiff must support the allegations. Celestine v. TransWood, Inc., 467 F. App’x 317, 318 (5th Cir. 2012). When a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1), “no presumptive truthfulness attaches to the plaintiff's allegations, and the court can decide disputed issues of material fact in order to determine whether or not it has jurisdiction to hear the case.” Montez v. Dep’t of Navy, 392 F.3d 147, 149 (5th Cir. 2004). Thus, provided the elements of the underlying cause of action are not put into question, the court is free to weigh the evidence. Montez, 392 F.3d at 150. When it is determined that a court lacks subject matter jurisdiction, the proper remedy is dismissal. See Rush v. Barham, 618 F. App’x 789, 791 (5th Cir. 2015) (internal citations omitted). B. Federal Rule of Civil Procedure 12(b)(6) On a 12(b)(6) motion to dismiss, the Court accepts as true all of the relevant factual allegations in a complaint and construes them in the light most favorable to the plaintiff. Taylor v. Books A Million, 296 F.3d 37 6, 378 (5th Cir. 2002) (citation omitted). However, the Supreme Court explains that: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, recitation of the elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). To that end, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 3 of 8 DEFENDANT’S MOTION TO DISMISS Page 4 of 8 v. Allain, 478 U.S. 265, 286 (1986); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 680-81 (2009) (“the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” which simply “are not entitled to [an] assumption of truth”). Rather, the court considers whether a complaint asserts “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 570). A plausible claim for relief must include “factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal citations omitted). A court may consider documents attached to the complaint and documents filed in connection with a motion to dismiss under 12(b)(6) without converting the motion to a motion for summary judgment if those documents are central to the complaint and not in dispute. See Taylor v. City of Shreveport, 798 F.3d 276 n.4 (5th Cir. 2015) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). III. ARGUMENT AND AUTHORITY A. Plaintiff’s Complaint Should Be Dismissed for Failure to Allege Any Jurisdictional Basis. Because Plaintiff is raising claims against a federal agency, this Court lacks subject matter jurisdiction unless the United States has waived its sovereign immunity, which Plaintiff has the burden of establishing. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182, 189 (1936); Reynolds v. Army &Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Kirkland Masonry, Inc., v. Comm’r of Internal Revenue, 614 F.2d 532, 533 (5th Cir. 1980) (per curiam) (plaintiff’s burden to properly plead jurisdiction is particularly heavy when the object of the suit is the Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 4 of 8 DEFENDANT’S MOTION TO DISMISS Page 5 of 8 sovereign). Federal court jurisdiction cannot be presumed, but must be affirmatively and positively pled. Norton v. Larney, 266 U.S. 511, 515 (1925). In determining whether a case arises under federal law, a court generally is confined to the well-pleaded allegations of the plaintiff’s complaint. Merrell Dow Pharms., Inc., v. Thompson, 478 U.S. 804 (1986); Taylor v. Anderson, 234 U.S. 74 (1914). Likewise, a waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted); see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (citing Mitchell, 445 U.S. at 538). It must be contained in statutory language that is “specific and express.” United States v. King, 395 U.S. 1, 4 (1969); Rhodes v. United States, 760 F.2d 1180, 1184 (11th Cir. 1985). For this reason, the waiver cannot be enlarged beyond the boundaries that the statutory language plainly requires. United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992). Plaintiff’s claims should be dismissed because she does not assert a jurisdictional basis for the Unites States’ waiver of sovereign immunity. B. Plaintiff’s Complaint Should be Dismissed for Failure to State Any Claims. 1) Plaintiff has failed to articulate the specific claims for which she seeks recovery. Not only has Plaintiff failed to cite a jurisdictional basis for her lawsuit, she has failed to clearly state the specific claims before the Court. While she references that in her EEO proceeding, she alleged discrimination based on her gender and race or national origin, she does not state which claims are the now basis of her current lawsuit. Furthermore, in her complaint, Plaintiff also appears to suggest discrimination based on sexual orientation and hostile work environment. See PLAINTIFF’S ORIGINAL COMPLAINT, Clerk’s Doc. #1 at p. 3, ¶6 (“...this contempt appeared to worsen when he learned that she was a lesbian.”); see also p. 11, ¶21 (“…made the work Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 5 of 8 DEFENDANT’S MOTION TO DISMISS Page 6 of 8 environment so hostile and volatile…). Because Plaintiff has failed to articulate what claims are currently before the Court, Defendant is left to guess. Due to her failure to state a claim for which relief can be granted, Plaintiff’s lawsuit should be dismissed. 2) Plaintiff cannot recover for any alleged mishandling of her EEO claim. Paragraphs 23-30 of Plaintiff’s Complaint state various alleged errors during the processing of Plaintiff’s EEO complaint during the administrative process. See PLAINTIFF’S ORIGINAL COMPLAINT, Clerk’s Doc. #1 at pp. 12-15. Title VII of the Civil Rights Act of 1964 is the exclusive and preemptive remedy for race and gender discrimination claims in federal employment. See Sapp v. Potter, 413 F. App’x 750, 753 (5th Cir. 2011) (quoting Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir. 1992)) (“‘[I]t is well-settled that the provisions of Title VII of the Civil Rights Act applicable to claims of racial discrimination in federal employment are the exclusive and preemptive remedy for such claims.’”). However, challenges to the handling of a discrimination complaint in the EEO process are not actionable under Title VII. See Daniels v. Caldera, 237 F.3d 631, n.6 (5th Cir. 2000) (mishandling of an EEO complaint does not state a claim under Title VII). Therefore, to the extent Plaintiff relies on alleged mishandling of her EEO complaint, her claims should be dismissed for failure to state a claim. C. In the Alternative, Defendant Moves For a More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e). Pursuant to Federal Rules of Civil Procedure 8(a) and 10(b), all pleadings must satisfy a minimum standard for form and substance. Rule 8(a) generally requires a “short and plain statement of the claim.” Fed. R. Civ. P. 8(a)(2). Rule 10(b) requires that: A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 6 of 8 DEFENDANT’S MOTION TO DISMISS Page 7 of 8 a separate transaction or occurrence-and each defense other than a denial-must be stated in a separate count or defense. Fed. R. Civ. P. 10(b). Where, as here, the pleadings fall short of these pleading requirements, they fail “to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” See Weiland v. Palm Beach Cnty. Sherriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015). As a result, they create significant and unnecessary inefficiencies in responding to the complaint, as it becomes incumbent upon the Defendant to speculate as to every possible legal scenario for each and every fact alleged. Here, although the Plaintiff’s complaint contains long narrative paragraphs, it contains no counts to identify the causes of action intended and no clear identification of which acts Plaintiff intends to serve as the basis for these unidentified claims. As a result, Defendant “cannot reasonably prepare a response” that will fully or accurately address the allegations asserted. Fed. R. Civ. P. 12(e). Under these circumstances, Plaintiff’s pleading requires a more definite statement of claims pursuant to Rule 12(e). IV. CONCLUSION For the reasons set forth above, the Court should dismiss Plaintiff’s Complaint or, in the alternative, enter an order directing Plaintiff to amend her Complaint to specify the claims she is asserting and identify which facts and/or actions are the bases for each claim. Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 7 of 8 DEFENDANT’S MOTION TO DISMISS Page 8 of 8 Respectfully submitted, RICHARD L. DURBIN, JR. UNITED STATES ATTORNEY By: /s/ Mark Guerrero . MARK GUERRERO Assistant United States Attorney Texas Bar No. 24032377 816 Congress Avenue, Suite 1000 Austin, Texas 78701 (512) 916-5858 (phone) (512) 916-5854 (fax) Mark.Guerrero@usdoj.gov ATTORNEYS FOR DEFENDANT SECRETARY OF THE ARMY CERTIFICATE OF SERVICE I certify that on April 3, 2017, I electronically filed the foregoing Defendant’s Motion to Dismiss, or in the Alternative, for a More Definite Statement with the Clerk of Court using the CM/ECF system, which will serve the following CM/ECF participants: Edward L. Piña Edward L. Piña & Associates, P.C. The Ariel House 8118 Datapoint Drive San Antonio, Texas 78229-3268 /s/ Mark Guerrero . MARK GUERRERO Assistant United States Attorney Case 5:16-cv-01218-DAE Document 7 Filed 04/03/17 Page 8 of 8