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UNITED STATES DISTRICT COURT

[courtDistrict], [courtDivision]

[plfName]	)	Case No (LT)
Plaintiff	)	[caseNo]
)
v.	)
)
[defName]	)
Defendant	)

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

Plaintiff, [plfName], on this [D] day of [MMM] [YYYY], respectfully asks this Honorable Court to deny “[dismissMotion]” (hereinafter “That Motion”).

Key Points:

Grounds	Sufficient Facts. Plausible Culpability.

Precedence	This Court regularly denies similar motions

Table of Contents:

Context	2nd Page
Response	3rd Page
Certificates	12th Page
Exhibits	13th Page
Affidavit	15th Page

Background:	Plaintiff sued Defendant for unlawful discrimination

Problem:	Defendant moved to dismiss the case on a customary ground

Request:	This Court denies Defendant’s motion

Rule 8 | Fed. R. Civ. P. | General Rules of Pleadings | (highlights added)

“(a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain: (1) a short and plain statement... (2) a short and plain statement... and (3) a demand for the relief sought...”

Rule 12 | Fed. R. Civ. P. | Defenses and Objections...

“(b) HOW TO PRESENT DEFENSES. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: ... (6) failure to state a claim upon which relief can be granted;”

Precedence

2:17-cv-00009-JES-NPM	- USFLMD (10/7/21)

2:20-cv-00108-SPC-NPM	- USFLMD (6/4/21)

2:20-cv-00468-SPC-MRM	- USFLMD (12/22/20)

2:20-cv-00497-SPC-NPM	- USFLMD (1/27/21)

2:20-cv-00660-JLB-NPM	- USFLMD (11/19/21)

2:20-cv-00590-JLB-NPM	- USFLMD (6/22/21)

2:20-cv-00635-JES-MRM	- USFLMD (5/17/21)

2:20-cv-00981-SPC-MRM	- USFLMD (4/28/21)

2:21-cv-00041-SPC-MRM	- USFLMD (4/27/21)

2:21-cv-00637-SPC-NPM	- USFLMD (10/14/21)

3:19-cv-00384-BJD-MCR	- USFLMD (3/2/21)

3:19-cv-00997-BJD-MCR	- USFLMD (5/14/21)

3:20-cv-00065-MMH-JRK	- USFLMD (3/5/21)

3:20-cv-00156-HES-JBT	- USFLMD (12/8/20)

3:21-cv-00521-MMH-PDB	- USFLMD (10/26/21)

8:18-cv-02941-CEH-CPT	- USFLMD (3/8/21)

8:19-cv-02907-TPB-JSS	- USFLMD (11/2/21)

8:20-cv-00104-CEH-CPT	- USFLMD (2/26/21)

8:20-cv-00687-CEH-SPF	- USFLMD (7/12/21)

8:20-cv-01517-VMC-JSS	- USFLMD (6/10/21)

8:20-cv-02018-VMC-AAS	- USFLMD (6/29/21)

8:20-cv-02794-TPB-SPF	- USFLMD (6/17/21)

8:20-cv-02951-VMC-TGW	- USFLMD (3/23/21)

8:21-cv-00210-KKM-AEP	- USFLMD (10/18/21)

8:21-cv-01281-TPB-AAS	- USFLMD (10/13/21)

8:21-cv-01807-VMC-CPT	- USFLMD (10/19/21)

8:21-cv-01835-VMC-TGW	- USFLMD (10/12/21)

USFLMD recently denied similar motions to dismiss

Abbreviations

[C###]	-	Paragraph ### from The Complaint2/
[M###]	-	Page ### from That Motion
USFLMD	-	US District Court, Florida, Middle District
USFLND	-	US District Court, Florida, Northern District
USFLSD	-	US District Court, Florida, Southern District

RESPONSE

Background

Immediate Procedural History

[para001].

[para002].

[para003].

[para004].

[para005].

[para006].

Ultimate Facts

[para007].

[para008].

[para009].

[para010].

[para011].

[para012].

Expounded Facts

[para013].

[para014].

[para015].

[para016].

[para017].

[para018].

Legal Standard

Defendant’s motion to dismiss was filed under Rule 12(b)(6) Fed. R. Civ. P.

History show that this Court has a well-established method for resolving 12(b)(6) motions to dismiss.

To start out, the Court’s review is limited to the “four corners” of the complaint (highlights added):

“The scope of review must be limited to the four corners of the complaint” and attached exhibits. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002)."”

Braun v TD Bank | 8:20-cv-02951 | 3/23/21

“In considering the motion, courts should limit their “consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation omitted)."

Parkhurst v Hiring 4 U, Inc. | 2:19-cv-00863 | 9/29/20

Then, the Court looks to see if a complaint satisfies the requirements set out in Rule 8(a)(2) Fed. R. Civ. P. (highlights added):

“The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The rules also require plaintiffs to set out their claims in separate, numbered paragraphs, “each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b)."”

Parkhurst v Hiring 4 U, Inc. | 2:19-cv-00863 | 9/29/20

Third, USFLMD judges look to see if a complaint contains sufficient facts (highlights added):

“To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need not recite “detailed factual allegations,” but must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).

CRM Suite Corp v GM Company | 8:20-cv-00762 | 3/10/21

In performing this examination, the judges lend all deference to the non-movant (highlights added):

“Likewise, the Court must accept all factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted). But the Court “need not accept factual claims that are internally inconsistent; facts which run counter to facts of which the court can take judicial notice;"

Parkhurst v Hiring 4 U, Inc. | 2:19-cv-00863 | 9/29/20

Importantly, the factual allegations must be “plausible”; which is defined as follows:

“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.” Id."”

CRM Suite Corp v GM Company | 8:20-cv-00762 | 3/10/21

Plus, the Court must afford leeway to layperson litigants:

“The pleadings of pro se litigants are "liberally construed" and held to a less exacting standard as those complaints drafted by attorneys. Tannenbaum v United States, 148 F. 3d 1262, 1263 (11th Cir. 1998). "However, a pro se litigant must still meet minimal pleading standards." Pugh v Farmers Home Admin., 846 F. Supp. 60, 61 (MD Fla. 1994) (citation omitted). And the courts are not tasked with drafting or rewriting a complaint to locate a claim. Peterson v Atlanta Hous. Auth., 998 F. 2d 904 (11th Cir. 1993)”

Daley v Florida Blue | 3:20-cv-00156 | 12/8/20

Similarly, this Court stresses that motions to dismiss must be confined to the legal sufficiency of the complaint (highlights added):

“[A] motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.)."

Johnson v Nocco, et al | 8:20-cv-01370 | 2/18/21

Analysis

Altogether, a methodical review of a 12(b)(6) motion to dismiss encompasses:

Looking only at the “four corners of the complaint”;

Checking the complaint against Rule 8(a) Fed. R. Civ. P.;

Determining whether it has sufficient facts;

Construing all facts as true;

Concluding that the claims are plausible; and

Double-checking for propriety.

a. Four Corners of the Complaint

[para019]

b. Short & Plain Statements

The Complaint contained short & plain statements describing Defendant’s culpability:

“[complaintQuote001]"

[CAAA]

“[complaintQuote002]"

[CAAB]

“[complaintQuote003]"

[CAAC]

“[complaintQuote004]"

[CAAD]

“[complaintQuote005]"

[CAAE]

As such, Plaintiff has satisfied element “b” for denial of That Motion.

c. Sufficient Facts

[para020]

[para021]

Put together, the four corners of Plaintiff’s complaint had details that were sufficient to raise the inference that Defendant was culpable.

Thus, Plaintiff has satisfied element “c” in the multi-step analysis for denying That Motion.

d. Construing All Facts as True

For the purposes of evaluating That Motion’s attempt to dismiss Plaintiff’s case, this Court must accept all of The Complaint’s factual allegations as true.

Pertinently, the following facts operate:

[ultimateFact001]

[ultimateFact002]

[ultimateFact003]

[ultimateFact004]

[ultimateFact005]

e. Plausibility

Now, this analysis turns to the plausibility of these facts.

Generally, “A claim is facially plausible when a court can draw a reasonable inference, based on facts pled, that the opposing party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678.”

USFLMD, in Strange-Gaines v Jacksonville, 3:20-cv-00056, further set out the method for determining plausibility (highlights added):

“When applying the plausibility standard, a court should undertake a “two-pronged approach.” [Iqbal]. First, the court should identify and disregard legal conclusions not entitled to the assumption of truth. Id. Second, the court should identify and assume the truth of well-pleaded factual allegations and “determine whether they plausibly give rise to an entitlement to relief.” Id. An example of a legal conclusion is, “the defendant was negligent.” An example of a factual allegation is, “the defendant was driving 90 m.p.h. on a road with a speed limit of 45 m.p.h.””

Strange-Gaines v Jacksonville | 3:20-cv-00056 | 1/26/21

First, this Court must discard any legal conclusions masquerading as facts. Plaintiff hereby states that none of the operating facts are anything other than stone-cold facts (¶37, supra).

Thus, Plaintiff has satisfied the first prong in the two-pronged plausibility test.

Next, this Court should determine whether Plaintiff’s well-pleaded facts rise to an entitlement of relief. The examples that this Court gave fit nicely with Plaintiff’s circumstances.

“An example of a [plausible fact entitled to relief], “the defendant was driving 90 m.p.h. on a road with a speed limit of 45 m.p.h.””

Strange-Gaines v Jacksonville | 3:20-cv-00056 | 1/26/21

As previously detailed, Defendant [didSomethingUnlawfulToPlaintiff].

Thus, with this match in tow, Plaintiff has passed the second prong in the plausibility test. And as such, he has satisfied element “e” in the overarching analysis for denying That Motion.

f. Double-Check for Propriety

Lastly, the analysis must safeguard against injecting impropriety into the review (highlights added):

“The pleading standard should not be confused with the evidentiary standard; detailing all evidence in a pleading or attaching evidence to a pleading could run afoul of the “short and plain statement” requirement. Presenting arguments and all evidence in a complaint generally is improper.”

Strange-Gaines v Jacksonville | 3:20-cv-00056 | 1/26/21

This Court has deemed it improper for a motion to dismiss to apply an evidentiary standard. Which, unfortunately, is what That Motion tried to do:

“[quoteFromDefendant001]”

[M007]

[arg001]

Thus, Defendant is wrong: Plaintiff does not need to meet an evidentiary burden at the motion-to-dismiss stage. Evidentiary determinations are the exclusive province of the fact finder (ie, the jury – in this case).

Instead, as the controlling law in Twombly holds, the four corners of Plaintiff’s complaint need only raise the inference that discovery will reveal evidence:

“While the facts need not be detailed, they must “raise a reasonable expectation that discovery will reveal evidence” for the plaintiff’s claim. Twombly, 550 US at 556”

Cooper v Murphy, et al | 2:18-cv-00675 | 11/6/20

Thus, upon double-checking for impropriety, Plaintiff has placed the final piece of the 12(b)(6) review standard squarely onto the pile for motion denials.

CONCLUSION

WHEREFORE, Plaintiff respectfully asks this Honorable Court to deny “[dismissMotion]”, because Plaintiff has submitted a well-pled set of factual elements pointing to Defendant’s unlawful conduct; worthy of a jury’s deliberations.

Dated this [D] day of [MMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Plaintiff

[plfAddy]

P: [plfPhn]

E: [plfEml]

W: TextBookDiscrimination.com

Get Booked Up on Justice!

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of this Court.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMM] [YYYY], I electronically filed the foregoing with the Clerk of Courts by using its online filing page. I also emailed it to the attached service list.

/s/ [plfName]

Endnotes:

How-To Guide: (interactive)

TextBookDiscrimination.com/Guides/Responses/Dismiss-Federal-12b6.html

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

EXHIBIT A

[short title]

PLAINTIFF’S AFFIDAVIT

UNITED STATES DISTRICT COURT

[courtDistrict], [courtDivision]

[plfName]	)	Case No (LT)
Plaintiff	)	[caseNo]
)
v.	)
)
[defName]	)
Defendant	)

PLAINTIFF’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

The affiant, [plfName], swears or affirms as follows:

Background

I am over the age of eighteen (18).

I am a plaintiff in the above-captioned case.

This affidavit is made in good faith.

Familiarity

I have read the Local Rules of Court, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the Middle District’s Discovery Handbook.

The information in this affidavit is based on my own personal knowledge.

Facts

[pertinentFact001].

[pertinentFact002].

[pertinentFact003].

[pertinentFact004].

[pertinentFact005].

[pertinentFact006].

Verification Under Oath Pursuant to 28 USC §1746

I declare under penalty of perjury that the foregoing is true and correct. Executed on this [D]th day of [MMM] [YYYY].

UNITED STATES OF AMERICA	[D]/[M]/[YYYY]
[plfName], Plaintiff/Affiant

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