IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
REDACTED, Plaintiff, vs. REDACTED, Defendant. CASE NO.: 5:11-cv-375-OC-10DAB DEFENDANT’S MOTION TO WITHDRAW ANSWER/MOTION TO DISMISS AND AMENDED MOTION TO DISMISS
MOTION TO WITHDRAW ITS ANSWER/MOTION TO DISMISS AND AMENDED MOTION TO DISMISS
Defendant, Redacted, hereby moves this Court to withdraw its previously filed pleading (which included an Answer/Motion to Dismiss), filed as Doc. 8, and to dismiss the Plaintiff’s complaint. As grounds therefore, Defendant states as follows:
Defendant filed an Answer/Motion to Dismiss as Doc. 8 Pro Se prior to retaining the undersigned counsel. Because the Defendant cannot defend itself, it requests permission to withdraw its previous pleading and replace it with this instant Motion to Dismiss.
The Plaintiff’s Complaint fails to state a valid claim because its allegations lack facial plausibility. Twombly and Iqbal fundamentally changed the pleading requirements of Rule 8(a)(2) by requiring that a plaintiff plead facts sufficient to render
his asserted claim or claims plausible. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plausibility pleading, combined with the requirement that courts accept as true all factual allegations in a complaint, renders a plaintiff unable to plead untenable inconsistent facts. As noted by the Court in Iqbal:
To 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.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), c.o. Thus, after Twombly and Iqbal, a plaintiff must plead “sufficient factual matter” which, “accepted as true,” makes the plaintiff’s claims facially plausible.
Plaintiff’s compliant fails to state a claim because it is so grossly inconsistent as to be facially implausible. Specifically, Counts I and II claim that Defendant failed to hire Plaintiff because of her alleged pregnancy. However, Count III claims that Defendant failed to pay Plaintiff overtime for hours worked. Clearly, Defendant could not have both failed to hire Plaintiff and failed to pay he overtime. Therefore, her Complaint fails to state a claim and should be dismissed.
For the foregoing reasons, Defendant Redacted respectfully requests this Court to permit it to withdraw its previous Answer/Motion to Dismiss (Doc. 8), grant the instant Motion, and dismiss the Plaintiff’s Complaint.
GOOD FAITH CONFERENCE
The undersigned conferred in good faith with counsel (Mr. Cabassa) for Plaintiff regarding the previous pleading filed by the Defendant (Doc. 8). Both Mr. Cabassa and the undersigned agree that the previous pleading should be struck (as proposed by Mr. Cabassa) and/or replaced (as ultimately decided by the undersigned). The undersigned believes amendment of Doc. 8 (as per the instant Motion) appropriately resolves the matter. Although Local Rule 3.01(g) does not apply to Motions to Dismiss, this notice is being filed in an abundance of caution due to the Defendant’s additional request to withdraw the prior pleading.
Dated this 15th day of August, 2011.
Michael Massey, Esq.
Michael Massey, FBN 153680
Attorney for Defendant
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that a true and correct copy of the foregoing was delivered electronically to all counsel of record by filing the same with the Court’s ECF system this August 15, 2011.
/s/ Michael Massey
Florida Bar No. 153680
Massey & Duffy
855 E. University Avenue
Gainesville, FL 32601