II. LEGAL STANDARDS GOVERNING THE MOTION.
On a motion to dismiss under Rule 12(b)(6), the moving party carries the burden of showing that jurisdiction does not exist. Lerner v. Fleet Bank, N.A.
318 F.3d 113, 128 (2d. Cir.2003). A defendant may base a motion to dismiss for failure to state a claim upon which relief
can be granted on either or both of two grounds: (1) a challenge to the ―sufficiency of the plead
ing‖ under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal
existence of the claim. Wynder v.McMahon, 360 F.3d 73, 80 (2d Cir.
2004)(―There is a
critical distinction between the noticerequirements of Rule 8(a) and the requirement, under Rule 12(b)(6), that a plaintiff state a claim
upon which relief can be granted.‖)
; Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).
―To survive a motion to
dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.‖
(Internal quotation marks omitted.) Ashcroft v. Iqbal
556 U.S. 662, 678 (2009); Bell AtlanticCorp. v. Twombly, 550 U.S. 544, 570 (2007).
―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.‖
Iqbal, 556 U.S. 678.
The issue is ―not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to offer evidence to support the
Todd v. Exxon Corp.
275 F.3d 191, 198 (2d Cir. 2001)(quoting Scheuer v. Rhodes
416 U.S. 232, 236 (1974)).
[T]he tenet that a court must accept as true all of the allegations contained in thecomplaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by merely conclusory statements, do not suffice.‖
Iqbal, 556 U.S. 678. A
pleading that only ―tenders naked assertions devoid of further factual enhancement‖ will
Rule 8 ―demands more than an unadorned, the
Case 3:12-cv-01176-JBA Document 61 Filed 09/27/13 Page 3 of 39