, 532 U.S. at 750 (citation omitted), the Court noted several factorswhich other courts have typically used to determine when to apply judicial estoppel.First, a “party's later position must be 'clearly inconsistent' with its earlier position."
.(citation omitted). Moreover, the position to be estopped must generally be one of fact rather than of law or legal theory.
Lowery v. Stovall
, 92 F.3d 219, 224 (4th Cir. 1996). Second,"whether the party has succeeded in persuading a court to accept that party's earlier position, sothat judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled.'"
, 532 U.S. at 750(citation omitted). The requirement that a previous court has accepted the prior inconsistentfactual position “ensures that judicial estoppel is applied in the narrowest of circumstances.”
, 92 F.3d at 224. Third, “whether the party seeking to assert an inconsistent positionwould derive an unfair advantage or impose an unfair detriment on the opposing party if notestopped.”
, 532 U.S. at 751.
RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Dismissal of a complaint is appropriate where, accepting the complaint as true and acceptingall inferences in the light most favorable to the plaintiff, the complaint fails as a matter of law tostate a claim on which relief can be granted. Fed.R.Civ. P. 12(b)(6). To survive a motion todismiss for failure to state a claim, a complaint must satisfy the pleading requirements set forthin Federal Rule of Civil Procedure 8(a)(2). While Rule 8’s pleading standard "does not require'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."
Ashcroft v. Iqbal
, 556 U.S. 662, 678 (2009)(citing
Bell Atl. Corp., v.Twombly
, 550 U.S. 544, 555 (20 07)). Consequently, to survive a motion for dismissal, a“complaint’s allegations must plausibly suggest that the plaintiff has a right to relief [and raise]