Lavery v. Restoration Hardware, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

D. Mass.May 22, 2017

39117429v.1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS JOHN LAVERY, Plaintiff, v. RESTORATION HARDWARE, INC., Defendant ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:17-cv-10856 DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT Pursuant to Fed. R. Civ. P. 12 (b)(6), 12(e) and Local Rule 7.1(b)(1), Defendant Restoration Hardware, Inc. (“Defendant”) respectfully submits this Motion to Dismiss Plaintiff’s Complaint or, in the alternative, motion for a more definite statement. The Court should dismiss Plaintiff’s Complaint in its entirety because the Complaint lacks sufficient factual allegations describing the nature of Plaintiff’s claims. Further, to the extent Plaintiff is seeking the value of long-term disability benefits previously denied, the Court must dismiss such claim as preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. ¶¶ 1001 et seq. CERTIFICATION OF CONFERRAL In accordance with Local Rule 7.1, undersigned counsel for Defendant certifies that she has conferred with Plaintiff’s counsel on May 22, 2017 by telephone, and has attempted in good faith to resolve or narrow the issues presented in this Motion. REQUEST FOR ORAL ARGUMENT Defendant respectfully requests oral argument on its Motion to Dismiss. Case 1:17-cv-10856-DJC Document 7 Filed 05/22/17 Page 1 of 3 2 39117429v.1 Dated: May 22, 2017 Respectfully submitted, DEFENDANT RESTORATION HARDWARE, INC. By its attorneys, s/ Hillary J. Massey Daniel Klein (BBO # 638059) Hillary J. Massey (BBO # 669600) Seyfarth Shaw LLP Two Seaport Lane, Suite 300 Boston, MA 02210-2028 dklein@seyfarth.com hmassey@seyfarth.com Tel: (617) 946-4800 Fax: (617) 946-4801 Case 1:17-cv-10856-DJC Document 7 Filed 05/22/17 Page 2 of 3 3 39117429v.1 CERTIFICATE OF SERVICE I hereby certify that, on May 22, 2017, this document was filed through the CM/ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants. s/ Hillary J. Massey Hillary J. Massey Case 1:17-cv-10856-DJC Document 7 Filed 05/22/17 Page 3 of 3