United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge.
the Court is Defendants' Partial Motion to Dismiss and
Motion for More Definite Statement. Dkt. 13. Based on the
pleadings; the motion, response, and reply; and the
applicable law, the Defendants' motion is granted in
part, and denied in part. The reasons for the ruling are
2007 to 2013, Robert Arredondo (“Arredondo”)
worked for the University of Texas Medical Branch at
Galveston (“UTMB”) as a Mental Health Worker,
providing services to inmates in the Texas prison system.
Arredondo is a Hispanic male and-at the time of his
termination from UTMB-was forty-five years of age. While
employed, Arredondo received intermittent Family and Medical
Leave Act (“FMLA”) leave and various Americans
with Disabilities Act (“ADA”) accommodations due
to his diabetes. During this period, Arredondo unsuccessfully
applied for forty-six promotions. According to Arredondo,
many of the successful candidates for promotion were less
qualified and were either younger than Arredondo, female,
eventually filed a grievance with UTMB based on
discrimination on the basis of race, sex, and age. His
complaint was forwarded to UTMB's local Human Resources
Administrator, Deborah S. Dansbe (“Dansbe”). Two
days after the grievance was filed, according to Arredondo,
Dansbe began working with Arredondo's supervisors, Donald
Hlavinka (“Hlavinka”), Shana L. Khawaja
(“Khawaja”), and Charlotte Kearney
(“Kearney”) to create reasons to discipline him.
Specifically, Dansbe instructed Arredondo's supervisors
to begin documenting complaints against him. Arredondo
subsequently received his first below-average performance
review. According to Arredondo, UTMB continued to generate
false and misleading reports on his performance before
ultimately terminating his employment.
filed a discrimination complaint with the Equal Employment
Opportunity Commission (“EEOC”). Having exhausted
his administrative remedies, he then filed the instant suit.
Arredondo's Complaint asserts causes of action for
violations of the following statutes: (1) 42 U.S.C. §
2000e (“Title VII”); (2) the ADA, 42 U.S.C.
§ 12101; (3) the Age Discrimination in Employment Act,
29 U.S.C. § 621 (“ADEA”); and (4) the FMLA,
29 U.S.C. § 2601. Arredondo asserted each statutory
violation against UTMB as well as Dansby, Hlavinka, and
Khawaja in their official capacities. Also named in his
official capacity was David L. Callender
(“Callender”), president of UTMB. UTMB filed this
instant motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(1) and (6) of
the Federal Rules of Civil Procedure. In the alternative, UTMB
moves for a more definite statement pursuant to Rule 12(e).
Motion to Dismiss for Lack of Subject Matter
12(b)(1) of the Federal Rules of Civil Procedure authorizes
the dismissal of an action if the court lacks subject matter
jurisdiction to entertain it. Fed.R.Civ.P. § 12(b)(1).
“A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Krim
v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)
(quoting Home Builders Ass'n of Miss., Inc. v. City
of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
“The burden of proof for a Rule 12(b)(1) motion to
dismiss is on the party asserting jurisdiction.”
Alfonso v. United States, 752 F.3d 622, 625 (5th
Cir. 2014) (quoting In re FEMA Trailer Formaldehyde
Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)).
12(b)(1) motion to dismiss is characterized as either a
“facial” attack, that is, the allegations in the
complaint are insufficient to invoke federal jurisdiction, or
as a “factual” attack, that is, the facts in the
complaint supporting subject matter jurisdiction are
questioned. Turner Indus. Group, LLC v. Int'l Union
Operating Eng'rs, 8 F.Supp.3d 875, 883 (S.D. Tex.
2014). An attack is “facial” if the defense
“merely files a Rule 12(b)(1) motion ….”
Peterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981). In such cases, “the trial court is required
merely to look to the sufficiency of the allegations in the
complaint because they are presumed to be true.”
Motion for More Definite Statement
party may move for a more definite statement of a pleading to
which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a
response.” Fed.R.Civ.P. § 12(e). Such motions,
however, are “generally disfavored.” Lehman
Bros. Holding, Inc. v. Cornerstone Mortg. Co., No. 09-
0672, 2009 WL 1504977, at *1 (S.D. Tex. May 29, 2009)
(collecting authorities). “When a defendant is
complaining of matters that can be clarified and developed
during discovery, not matters that impede his ability to form
a responsive pleading, an order directing the plaintiff to
provide a more definite statement is not warranted.”
Id. (citations omitted).
the Court notes that Arredondo's Response compels the
dismissal of several claims. Arredondo alludes in his
Response to a desire to file a second amended
complaint. However, he did not file a motion to
further amend his complaint. While the Court declines to
consider the request here, it takes judicial notice of
several of Arredondo's stipulations and clarifications
regarding his anticipated second amended complaint.
Court therefore DISMISSES Arredondo's ADEA claims.
See Dkt. 21, p. 4 (“Plaintiffs Second Amended