United States District Court, D. New Jersey
YADVENDU K. YADAV, Plaintiff,
SAINT MICHAEL'S MEDICAL CENTER; JOSEPH DEPASQUALE, M.D., Defendants.
KEVIN McNULTY, U.S.D.J.
matter originally came before the court on the motion (DE 9)
of the defendants to dismiss this complaint, which alleges
age discrimination, for failure to state a claim under Rule
12(b)(6), Fed.R.Civ.P. By Memorandum and Order filed on July
12, 2019 (DE 20), I noted the obvious deficiencies of the
Complaint. I also noted, however, that the plaintiff had made
supplementary statements in his briefs, to which he attached
documents in support of his claims. Although such statements
and attachments to briefs will not defeat a motion to
dismiss, I noted that they suggested that amendment would not
be futile, and liberally construed them as a motion to
amend. I therefore ruled as follows:
that the motion (DE 9) to dismiss the Complaint for failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), is
ADMINISTRATIVELY TERMINATED; and it is
that the plaintiffs supplemental submissions are construed as
a motion to amend the complaint, and that the motion to amend
is GRANTED; and it is further
that the plaintiff shall, within 30 days, submit an amended
complaint that states the legal elements of his claim(s) and
states facts in support. If no timely amended complaint is
received, the matter may be listed for dismissal.
directed the plaintiff to the court's website, which
contains information for pro se litigants, https:
//www.njd.uscourts.gov/ (DE 20)
30-day deadline came and went, with no response from the
plaintiff. 1 must therefore consider the original
complaint to be the operative pleading and reinstate the
motion to dismiss, which was fully briefed.
standards governing a Rule 12(b)(6) motion to dismiss a
complaint for failure to state a claim upon which relief may
be granted are familiar. For the purposes of a motion to
dismiss, the facts alleged in the complaint are accepted as
true and all reasonable inferences are drawn in favor of the
plaintiff. New Jersey Carpenters & the Trustees
Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d
297, 302 (3d Cir. 2014).
and plain statement of plaintiffs entitlement to relief will
do. See Fed. R. Civ. P. 8(a). Nevertheless, "a
plaintiffs obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The complaint's
factual allegations must be sufficient to raise a plaintiffs
right to relief above a speculative level, so that a claim is
"plausible on its face." Id. at 570;
see also West Run Student Housing Assocs., LLC v.
Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).
That facial-plausibility standard is met "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
at 556). While "[t]he plausibility standard is not akin
to a 'probability requirement'... it asks for more
than a sheer possibility." Iqbal, 556 U.S. at
as here, the plaintiff is proceeding pro se, the
complaint is "to be liberally construed," and,
"however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v, Pardus, 551 U.S. 89,
93-94 (2007). Nevertheless, "pro se litigants
still must allege sufficient facts in their complaints to
support a claim." Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 245 (3d Cir. 2013). "While a
litigant's pro se status requires a court to construe the
allegations in the complaint liberally, a litigant is not
absolved from complying with Twombly and the federal
pleading requirements merely because s/he proceeds pro
se." Thakar v. Tan, 372 Fed.Appx. 325, 328 (3d
Cir. 2010) (citation omitted).
complaint alleges as follows:
plaintiff, Yadvendu K. Yadav, a medical doctor, was
approximately 55 years old at the time of the events in suit.
He alleges that he applied for one of approximately 20 slots
in the defendant hospital's residency program. According
to the complaint, Dr. DePasquale, who interviewed him, said
that "You got your medical degree a long time ago, 25
years ago. I have many young doctors to interview. You are
too old." That was the "only reason" given at
the time for rejecting Dr. Yadav's application for the
position. He states that he believes that the candidates who
were accepted were "all substantially younger" than
himself. Dr. Yadav asserts violations of the federal ADEA and
the New Jersey Law against discrimination.
facie claim under the ADEA, as the defendants point out, has
four essential elements: that the plaintiff "(1) is over
40; (2) is qualified for the position in question; (3)
suffered an adverse employment decision; and (4) was replaced
by a sufficiently younger person to permit an inference of
age discrimination." (Def. Brf. 5, citing Flagg v.
New Jersey/Office of Child Support Servs., No.
17CV02602PGSTJB, 2018 WL 2269246, at *3 (D.N.J. May 17,
2018)). The defendants' motion, directed at the second
and fourth elements, makes two essential contentions: (1)
that the complaint fails to allege that the plaintiff was
qualified for the residency position; and (2) that the
complaint fails to allege that sufficiently younger
individuals were selected for the program in his stead.
contentions have merit. The statement by Dr. DePasquale, if
accurate, surely would support an inference of discriminatory
intent. The complaint fails to allege, however, that there
was discrimination in fact. The complaint does not allege
that Dr. Yadav possessed the qualifications for the position.
The complaint does not state the ages of the persons who were
selected in his stead. Stating, ...