United States District Court, E.D. Texas, Marshall Division
MEMORANDUM OPINION AND ORDER
GILSTRAP UNITED STATES DISTRICT JUDGE.
the Court is Defendant Cardinal Health 200, LLC's
(“Cardinal Health”) Rule 12(b)(6) Motion to
Dismiss, Or in The Alternative Rule 12(e) Motion for More
Definite Statement (the “First Demurrer”) with
respect to Plaintiff David Potter's
(“Potter”) Original Complaint (Dkt. No. 1). (Dkt.
No. 4 at 1.) Also before the Court is Cardinal Health's
Rule 12(b)(6) Motion to Dismiss, Or in The Alternative Rule
12(e) Motion for More Definite Statement (the “Second
Demurrer”) with respect to Potter's First Amended
Complaint (Dkt. No. 5). (Dkt. No. 10 at 1.) Additionally,
Cardinal has filed a 12(b)(6) Motion to Dismiss, Or in The
Alternative Rule 12(e) Motion for More Definite Statement
(the “Third Demurrer”) with respect to
Potter's Second Amended Complaint (Dkt. No. 20). (Dkt.
No. 21 at 1.) For the reasons discussed herein, the First
Demurrer is DENIED-AS-MOOT and the Second
and Third Demurrers are together
who is currently 70 years old, was employed as a mold maker
at Cardinal Health's facility in Jacksonville, TX. (Dkt.
No. 1 ¶¶ 6, 10, 11; Dkt. No. 5 ¶¶ 7, 11,
12; Dkt. No. 20 ¶¶ 7, 11, 12.) Cardinal Health
terminated Potter's employment on August 31, 2018. (Dkt.
No. 5 ¶ 39; Dkt. No. 20 ¶ 42.)
January 8, 2019, Potter filed his Original Complaint (Dkt.
No. 1) against Cardinal Health asserting claims under the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.,
and the Fair Labor Standards Act (“FLSA”), 28
U.S.C. §§ 215(a)(3), 216(b). (Id.
¶¶ 1-4.) On February 12, 2019, Cardinal Health
filed its First Demurrer directed at Potter's Original
Complaint, seeking dismissal or a more definite statement
under Federal Rule of Civil Procedure 12(b)(6) and (e) as to
Potter's ADEA and FLSA claims. (Dkt. No. 4.)
subsequently filed his First Amended Complaint on February
19, 2019. (Dkt. No. 5.) Potter again asserted ADEA and FLSA
claims. (Id. ¶¶ 1-4.) On March 15, 2019,
Cardinal Health filed its Second Demurrer directed at
Potter's First Amended Complaint, seeking dismissal or a
more definite statement under Rule 12(b)(6) and (e) as to
Potter's FLSA claims. (Dkt. No. 10.)
again amended his Complaint on May 2, 2019, asserting ADEA
and FLSA claims. (Dkt. No. 20 ¶¶ 1-4 (Second
Amended Complaint).) On May 10, 2019, Cardinal Health filed
its Third Demurrer directed at Potter's Second Amended
Complaint, again seeking dismissal or a more definite
statement under Rule 12(b)(6) and (e) as to Potter's FLSA
claims. (Dkt. No. 21.)
Motion to Dismiss
8(a)(2) requires that the pleading contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a
Rule 12(b)(6) motion to dismiss, a plaintiff must plead
sufficient facts “to state a claim to relief 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, 547 (2007)). A claim is
“plausible on its face” where the pleaded facts
allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
must accept the complaint's factual allegations as true
and must “draw all reasonable inferences in the
plaintiff's favor.” Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 232 (5th Cir. 2009). However, the
Court need not accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678. To be
legally sufficient, the complaint must establish more than a
“sheer possibility” that the plaintiff's
claims are true. Id. The complaint must contain
enough factual allegations to raise a reasonable expectation
that discovery will reveal evidence of each element of the
plaintiff's claim. Lormand, 565 F.3d at 255-57.
In considering a motion to dismiss for failure to state a
claim, a court considers only the contents of the pleadings,
including their attachments. Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). If it is
apparent from the face of the complaint that an
insurmountable bar to relief exists, and the plaintiff is not
entitled to relief, the court must dismiss the claim.
Jones v. Bock, 549 U.S. 199, 215 (2007).
Motion for More Definite Statement
may also require a plaintiff to amend a complaint to include
a more definite statement “of its claim.”
See Fed. R. Civ. P. 12(e). “If a pleading
fails to specify the allegations in a manner that provides
sufficient notice, a defendant can move for a more definite
statement . . . before responding.” Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002). However, where
“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.” Hoffman v. Cemex, Inc., No.
H-09-2144, 2009 WL 4825224, at *3 (S.D. Tex. Dec. 8, 2009)
(citing Arista Records LLC v. Greubel, 453 F.Supp.2d
961, 972 (N.D. Tex. 2006)).