Defendant's motion to dismiss for lack of subject matter jurisdiction and supporting brief - title VII - Federal Court

UNITED STATES DISTRICT COURT

_________________ DISTRICT OF TEXAS

_____________ DIVISION

Plaintiff

v.

Defendant

§§§§§§§§§

Civil Action No. _______________

DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER

JURISDICTION OR, ALTERNATIVELY, FOR FAILURE TO STATE A CLAIM

UPON WHICH RELIEF CAN BE GRANTED, AND SUPPORTING BRIEF

Defendant files this motion to dismiss the complaint for lack of subject matter jurisdiction, or alternatively, for failure to state a claim upon which relief can be granted. Defendant filed an appendix in support of this motion to dismiss contemporaneously with the filing of the motion (“Appendix”).

I. Summary of Plaintiff’s Claims

Plaintiff seeks to bring this action under Title VII of the Civil Rights Act of 1964. Defendant employed plaintiff as a _______________ for _______________ in _______________ and discharged him/her effective _______________. Plaintiff asserts that Defendant violated Title VII by allegedly discharging him/her on the basis of his/her gender (male/female). He/She further alleges that he/she filed a charge of discrimination with the U.S. Equal Opportunity Commission and that he/she filed this action in a timely manner.

Grounds of Motion

The Court lacks subject matter jurisdiction of this action or, alternatively, the complaint fails to state a claim upon which relief can be granted. Before plaintiff may file a civil action in federal court under Title VII, he/she must exhaust his/her administrative remedies, which include filing a charge of discrimination with the EEOC within a certain time after the alleged violations occurred and then filing suit within 90 days after receiving a right to sue notice from the agency. The complaint discloses that plaintiff received a notice of right to file a civil action from the Texas Commission on Human Rights, not the EEOC. Therefore, plaintiff filed suit in the wrong forum. This Court lacks subject matter jurisdiction by reason of his/her failure to exhaust administrative remedies before the EEOC. Alternatively, plaintiff has failed to state a claim upon which relief can be granted because he/she failed to perform all conditions precedent to the filing of this action.

Argument and Authorities

A motion under Fed. R. Civ. Proc. 12 (b)(1) should be granted if it appears that the plaintiff cannot prove any set of facts in support of his/her claim that would entitle him/her to relief. See Home Builders Ass’n. Of Mississippi., Inc. v. City of Madison, Miss., 143 F.3d. 1006, 1010 (5^th Cir. 1998). Analysis of a Rule 12(b)(1) motion is made under the same standard as a motion to dismiss under Rule 12(b)(6). See Montgomery v. The United States Army Corp. of Engineers, 128 F. Supp. 2d 433, 435 (S. D. Tex. 2001). The Court must take as true all of the complaint’s factual allegations. See The John Corp. v. City of Houston, 214 F.3d 573, 576 (5^th Cir. 2000). The Court may order dismissal for lack of subject matter jurisdiction on the basis of (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the Court’s resolution of...