SUPERIOR COURT OF THE STATE OF RIDGEWAY
XLAZERIFY,
Plaintiff,
v.
STUDSPERSECOND,
Defendant.
Case No. RSC-CV-832
SUPPLEMENTAL PLEADING
SUPPLEMENTAL PLEADING
Comes now the Defendant, StudsPerSecond, as a named defendant and corporation
within the State of Ridgeway, submitting this supplemental pleading in support of dismissal—
ARGUMENT
The Ridgeway Rules of Civil Procedure are clear: a short statement of why the pleader is
entitled to relief is required. See Rule 8. Of course, this does not mean that the Plaintiff must
plead facts that make it clear through preponderance that the Defendant committed tortious
actions. This would undermine the very basis of a civil complaint if everything needed to be
litigated before the trial. The trial is meant to be the inquiry into fact developed through witness
testimony and admitted evidence, the civil complaint is not. Nevertheless, the rules still require
that the Plaintiff plead sufficient facts to push the likelihood of liability from possible to
probable. In essence, the Plaintiff must plead in a manner “that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 554 (2007). Twombly relaxed the rule annoyed in Conley v. Gibson
which required a showing that "beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." 355 U.S. 41, 45- 46 (1957).
The Plaintiff's complaint, while being acceptable under Conley, is not sufficient under the
current Twombly standard. As stated in the motion to dismiss, to adequately determine this we
must look at the invoked tort. It would be foolish to attempt to analyze this doctrine, which is
based on the requirement that the Plaintiff plead facts entitling him to relief, if we do not look at
what the Plaintiff needs to prove. Negligence per se is the invoked tort. To prove liability for any
action one must prove that the Defendant owed him a duty of care as described by a statute or
administrative policy. There needs to be a breach of this duty of care and that this breach caused
concrete harm–speculation does not suffice. Finally, liability can only be achieved if the statute
or administrative policy was designed specifically to prevent the beach. Absent sufficient
pleading of any of these elements, a complaint does not meet the Rule 8 standard.
The Plaintiff invoked a specific statute, negligence per se, but did not sufficiently plead
facts. Paragraphs 1-5 set up the basis for the demotion (which is the central issue at play).
Paragraph 6 describes the adverse action that the Plaintiff received. Paragraph 7-8 develops
further context for the event. Paragraph 9 alleges that the termination was inapplicable because
the company handbook does not provide activity requirements for members of Human
Resources. Paragraph 10 states the general activity requirements within the company. Paragraph
11 states that "At the time of his demotion, Mr. xLazerify did not have any disciplinary actions
taken against him." Civ. Complaint at 1. Finally, paragraph 12 (which is the last assertion)
merely states a conclusion of law. A court ought not to consider conclusions of law for the
purpose of the Twombly standard. Ashcroft v. Iqbal, 556 U.S. 662 (2009). The factual assertions
do not even hint at a duty of care. They only reference a violation of a policy, which by itself
does not give rise to an action for negligence per se. And a duty of care is the first and most
important fact to plead within the Complaint when invoking the tort, for all of the other elements
stem from a breach of duty. The failure to plead these facts does not make the complaint even
plausible, not even by Conley standards.
When a complaint does not state a claim upon which relief can be granted, as it does not
here, it warrants dismissal. Multiple circuit courts have held so. E.g., Brod v. Omya, Inc., 653
F.3d 156 (2d Cir. 2011); Hawks v. J.P. Morgan Chase Bank, 591 F.3d 1043, 1049 (8th Cir. 2010)
("Dismissal is proper when the . . . complaint fails to state a claim upon which relief can be
granted."). There is next the question of dismissal with or without prejudice. The Supreme Court
has held previously that a dismissal for failing to state a legally cognizable claim is a “judgment
on the merits.” Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981); see also
Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501–02, (2001). This is because the
Court must interpret the facts to determine if they are plausible under invoked tort. Doing so
requires an adjudication on the merits, even if very minorly.
Therefore it is proper to dismiss the complaint with prejudice.
Dated: January 8th, 2023 Respectfully Submitted.
STICKZA
General Counsel
STUDSPERSECOND
HolyRomanRyan
Assistant General Counsel
STUDSPERSECOND
Counsel for Defendant
