The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
This breach of contract and negligence case brought by pro se Plaintiffs, Kyle and Kristi Nelson, alleges that Defendants, Genessee & Wyoming Inc. and Buffalo & Pittsburgh Railroad, promised -- but failed to provide -- Plaintiff Kyle Nelson with an engineer job. Plaintiffs claim that they relocated from Oregon to Pennsylvania based largely upon written representations about an engineer job set forth in a letter signed by Plaintiff Kyle Nelson and a representative of the Defendants.*fn1 It is undisputed that after relocating to Pennsylvania, Defendants trained Plaintiff Kyle Nelson for an engineer position, but did not make the engineer job immediately available to him.
Defendants have filed a Motion to Dismiss the Complaint arguing primarily that this Court lacks subject matter jurisdiction, and secondarily, that all of Plaintiffs‟ claims fail as matter of law. For the foregoing reasons, this Court shall grant in part and deny in part Defendants‟ Motion to Dismiss.
I. Applicable Standards of Review
Defendants filed their motion to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
A. Federal Rule of Civil Procedure 12(b)(1) -- Facial versus Factual Attack
Federal Rule of Civil Procedure 12(b)(1) allows a party to attack subject matter jurisdiction on either facial grounds -- based solely on the allegations in the Complaint -- or factual grounds -- looking beyond the allegations to attack jurisdiction in fact. See Johnson v. Novastar Mortg., Inc., 698 F.Supp.2d 463 (D.N.J. 2010) citing, Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.1977) (there is "a crucial distinction . . . between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from the pleadings.").
When considering a facial attack, a court does not look outside of the Complaint and "must consider the allegations of the complaint as true . . . [with] all inferences [favorably drawn] to plaintiff." Mortensen, 549 F.2d at 891; see also 27A Fed. Proc. §62:440 (The facial attack is addressed to the sufficiency of the allegations of the complaint itself. On such a motion, the court is merely required to determine whether the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the factual allegations of the complaint are taken as true.).
When considering a factual attack, the Court has much broader authority and can review evidence outside the pleadings without changing the motion into a motion for summary judgment under Fed.R.Civ.P. 56. Mortensen, 549 F.2d at 891. The presumption of truthfulness does not attach, the burden of persuasion is on the plaintiff, and "the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. If a defendant sets forth any evidence challenging any assertions made in the pleadings, the presumption of truthfulness does not attach, and the plaintiff can "respond with evidence supporting jurisdiction." Gould Elec. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citation omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
When deciding whether to grant or deny a 12(b)(6) motion the Supreme Court has held, "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff‟s 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555 (2007) (cites and footnote omitted). See also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a plaintiff‟s factual allegations must be enough to raise a right to relief above the speculative level).
To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 at 570)). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
It is on these standards that this Court has reviewed defendants‟ Motion to Dismiss Plaintiffs‟ complaint.
Plaintiff Kyle Nelson (Nelson) was employed as an engineer with Portland & Western Railroad, a Genesee & Wyoming company, based out of Albany, Oregon. Doc. no. 1-1, at ¶3. Because "work was sparse" Nelson began searching for employment through Genesee & Wyoming‟s website and Nelson located an open engineer position with Defendant Buffalo & Pittsburgh Railroad (B&P), also a Genesee & Wyoming company. Id. Nelson called Dan Pavick (Pavick) of B&P and expressed ...