UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ANGELO DISENA,

Plaintiff,

v. Case No. 15-11388

TS EMPLOYMENT INC.,

Defendant.

 /

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Pending before the court are Defendant’s Motion to Dismiss and Motion to

Consolidate Cases (Dkt. ## 10, 11), and Plaintiff’s “Motion to Keep Case Open For

Trial” (Dkt. # 18). Plaintiff Angelo DiSena filed this Title VII pro se action seeking

damages against Defendant TS Employment Inc. for wrongful termination, apparently

filing two almost identical complaints that each initiated actions before two judges in this

district. (See Case Nos. 15-11387, 15-11388). In Case No. 15-11387, this court

exercised its discretion to grant Plaintiff in forma pauperis status and dismissed the

complaint pursuant to 28 U.S.C. § 1915(a)(1). DiSena v. TS Emp’t, Inc., No. 15-11387,

Dkt. # 5 (E.D. Mich. June 6, 2015). After that dismissal, Plaintiff filed another action,

Case No. 15-12566, which this court recently dismissed as untimely. DiSena v. TS

Emp’t, Inc., No. 15-12566 , Dkt. #8 (E.D. Mich. August 12, 2016).

The instant case was originally assigned to Judge Linda Parker, who granted

Plaintiffs request to proceed in forma pauperis but did not dismiss the complaint. (Dkt. #

5.) On August 31, 2015 Defendant filed the now-pending Motion to Dismiss (Dkt. # 10)

2:15-cv-11388-RHC-RSW Doc # 26 Filed 08/12/16 Pg 1 of 6 Pg ID 114
and a Motion to Consolidate the case with Case No. 15-12566. (Dkt. # 11). Judge

Parker issued a notice that both motions would be determined without oral argument

and directed Plaintiff to Respond to the motions by October 2, 2015, extending the

period normally allowed for a response. (Dkt. ## 14, 15.) Plaintiff failed to file any

response by that extended deadline and instead filed a Motion to Keep Case Open for

Trial on October 6, 2015. (Dkt. # 18.) After this point, both case Nos. 15-12566 and 15-

11388 were reassigned to the undersigned as companion cases to the previously

dismissed action discussed above, Case No. 15-11387. As noted, this court has since

dismissed Case No. 15-12566 as untimely because it was filed more than ninety days

after Plaintiff received his right-to-sue notification from the Equal Employment

Opportunity Commission (“EEOC”). 

The court will grant Defendant’s motion to dismiss the instant action and deny the

motion to consolidate and motion to keep the case open for trial as moot. 

I. STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short

and plain statement of the claim showing that the pleader is entitled to relief[.]” In order

to survive a motion to dismiss, the complaint must allege “[f]actual allegations

. . . enough to raise a right to relief above the speculative level . . . on the assumption

that all the allegations in the complaint are true[.]” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). Only a complaint that states a plausible claim for relief can survive a

motion to dismiss, and “[a] claim has facial plausibility 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, 678–79 (2009). 

2

2:15-cv-11388-RHC-RSW Doc # 26 Filed 08/12/16 Pg 2 of 6 Pg ID 115
Determining whether a complaint states a plausible claim for relief will . . . be

a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not shown—that the pleader is entitled to

relief. 

Id. at 679 (internal quotation marks, citation, and brackets and omitted). “In determining

whether to grant a [motion to dismiss], the court primarily considers the allegations in

the complaint, although matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint, also may be taken into account.” 

Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (quotation marks, citation,

and emphasis omitted). 

II. DISCUSSION

Defendant argues, and the court agrees, that Plaintiff’s Complaint must be

dismissed because he has failed to meet the pleading requirements of Federal Rule of

Civil Procedure 8. Current pleading standards require the plaintiff to allege specific

facts in the complaint. See Twombly, 550 U.S. at 544; Ashcroft v. Iqbal, 556 U.S. 662

(2009)). Twombly held that a “showing that the pleader is entitled to relief” requires the

allegation of sufficient facts “to raise a reasonable expectation that discovery will reveal

evidence of [illegal conduct].” 550 U.S. at 556. In so stating, the Court spoke in terms

of “plausibility,” rather than mere “conceivability.” Id.

Though decidedly generous, especially in the context of a pro se plaintiff, this

standard of review does require more than the bare assertion of legal conclusions. 

Here, Plaintiff has filled in a form complaint for employment discrimination, by checking

a box that Defendant terminated his employment and writing in “[s]exual harassment.

3

2:15-cv-11388-RHC-RSW Doc # 26 Filed 08/12/16 Pg 3 of 6 Pg ID 116
Not defending my constitutional right of participating in by [sic] limiting my Christmas

compensation. Whistle Blower.” (Dkt. # 1, Pg. ID 2.) He bases the claim on sex

discrimination, but offers no facts in the Complaint in support of his action. (Id.) “[A]

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

than labels and conclusions, and a formulaic recitation of a cause of action’s elements

will not do.” Twombly, 550 U.S. at 555 (citing Fed. R. Civ. P. 8(a)). Further, the

complaint must “give the defendant fair notice of what the plaintiff’s claim is and the

grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) abrogated on

other grounds by Twombly, 550 U.S. 544. In application, a “complaint must contain

either direct or inferential allegations respecting all material elements to sustain a

recovery under some viable legal theory.” Eidson v. State of Tenn. Dep’t of Children’s

Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citation omitted). Plaintiff’s bare-bones

pleading does not meet the liberal requirements of Twombly or Federal Rule of Civil

Procedure 8, and therefore it must be dismissed.

Because Plaintiff does assert some facts relating to his sex discrimination claims

in the “Motion to Keep the Case Open for Trial,” the court must also consider whether

that untimely response to Defendant’s Motion to Dismiss should be construed in such a

way as to cure the defects in the Complaint. “Although pleadings of a pro se litigant are

to be construed liberally, the Court must and will require that duly set deadlines be

followed. Dismissal of an action is appropriate where a pro se litigant fails to comply

with a readily comprehended deadline despite sufficient opportunity to do so.” Davis v.

Astrue, No. 2:08-cv-218, 2009 WL 2745633, at *1 (E.D. Tenn. Aug. 26, 2009) (citing

Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). Here Plaintiff was given an

4

2:15-cv-11388-RHC-RSW Doc # 26 Filed 08/12/16 Pg 4 of 6 Pg ID 117
extended period of time within which to file a response to Defendant’s Motion to Dismiss

and failed to do so. Further, Plaintiff should have been aware of the deficiencies in his

Complaint months before, as this court had dismissed the nearly identical complaint in

the companion to this case more than two months before the Motion to Dismiss was

filed and approximately four months before Plaintiff’s response was due. See DiSena v.

TS Emp’t, Inc., No. 15-11387, Dkt. # 5 (E.D. Mich. June 6, 2015) (dismissing complaint

under the Twombly standard). Even assuming, arguendo, the facts alleged in the

Motion to Keep Case Open for Trial could save Plaintiff’s complaint, the court declines

to excuse Plaintiff’s tardy response to the motion to dismiss. 

III. CONCLUSION

Accordingly, IT IS ORDERED that Defendant’s Motion to Dismiss (Dkt. 10) is

GRANTED and the action is DISMISSED WITH PREJUDICE.1

IT IS FURTHER ORDERED that Defendant’s Motion to Consolidate (Dkt. # 11)

and Plaintiff’s Motion to Keep Case Open for Trial (Dkt. # 18) are DENIED AS MOOT.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: August 12, 2016

1

 Though a dismissal under Twombly is without prejudice, the court notes that if

Plaintiff attempted to refile this action, the new Complaint would be untimely. Title VII

requires that an action in federal court be filed within ninety days of receipt of a right-tosue letter from the EEOC. See Tate v. United Servs. Assocs., Inc., 75 F. App’x 470, 471

(6th Cir. 2003). Additionally, the filing of an earlier complaint that was dismissed without

prejudice does not toll the ninety-day period. Id. As this action cannot be timely refiled,

the court dismisses with prejudice. 

S:\Cleland\JUDGE'S DESK\C2 ORDERS\15-11388.DISENA.dimiss.smq.wpd

5

2:15-cv-11388-RHC-RSW Doc # 26 Filed 08/12/16 Pg 5 of 6 Pg ID 118
I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, August 12, 2016, by electronic and/or ordinary mail.

s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522 

S:\Cleland\JUDGE'S DESK\C2 ORDERS\15-11388.DISENA.dimiss.smq.wpd

6

2:15-cv-11388-RHC-RSW Doc # 26 Filed 08/12/16 Pg 6 of 6 Pg ID 119