CONTI, District Judge.
Pending before the court are two motions: 1) defendants' second motion for judgment on the pleadings (the "Motion for Judgment on the Pleadings" (ECF No. 40)), filed by American General Financial Services Inc. ("AGF"), and Bruce Casteel ("Casteel" and together with AGF, "defendants"), pursuant to Federal Rule of Civil Procedure 12(c); and 2) plaintiff's motion to strike (the "Motion to Strike" (ECF No. 44)), filed by Darnella R. Wilson ("plaintiff" or "Wilson").
In the Motion for Judgment on the Pleadings, defendants request the court to dismiss the claims against them set forth in the first amended complaint. ("Amended Complaint" (ECF No. 35).) The
In the Motion to Strike, plaintiff moves the court to strike defendants' affirmative defenses of failure to state a claim and conditional privilege as insufficient under Federal Rule of Civil Procedure 12(f), and to strike defendants' remaining affirmative defenses as immaterial to the Amended Complaint.
For the reasons set forth below, the court will grant in part and deny in part defendants' Motion for Judgment on the Pleadings; and deny plaintiff's Motion to Strike in its entirety.
Plaintiff alleges that she is the sole proprietor of her current business and facility where she employs an accountant, architect, engineer, and a certified business development consultant. (Am. Compl. ¶ 9 (ECF No. 35).) In February 1999, plaintiff refinanced her home. Her original mortgage provided in relevant part that "a late charge of 5% of the monthly note will accrue if payment is received after the 15th day of each month." (Id. ¶ 10.) The payment coupons reflected the total payment to be $397.39, with a "late charge of $19.88 if payment is received after the 15th". (Id.; see Ex. 9 (ECF No. 35-1).) No other late fees or service fees were specified in the mortgage, which also provided that any amount paid in excess of the $397.39 would be credited toward paying down the principal balance. (Am. Compl. ¶ 10 (ECF No. 35).)
By letter dated May 26, 1999, AGF informed plaintiff that it purchased her mortgage on or about March 1, 1999, and that there would be no changes in the terms of her original mortgage. (Id., Ex. 2 (ECF No. 35-1).) In June 2009, plaintiff mailed her monthly payment for that month on or about the 30th of the month—incurring a late fee penalty—and including an additional $130.00 to be credited toward reducing the principal balance. Plaintiff alleges that before she put her payment in the mail she was harassed and berated by an AGF agent. (Id. ¶ 12.) Before July 15, 2009, plaintiff sent a $500 payment and made all payments timely thereafter. (Id.)
Plaintiff alleges that AGF willfully and knowingly fabricated an account delinquency and published false and defaming assertions to third parties in a deliberate attempt to defame her. (Id. ¶ 14.) Plaintiff asserts that she first learned about defendants' publication on or about September 1, 2009, when she downloaded her file from the website of the Better Business Bureau ("BBB"). The BBB file contained the statements:
(Id., Ex. 3 (ECF No. 35-1).) Plaintiff avers that the statements are false and were made by AGF's employee, Casteel. Plaintiff alleges that on or about November 13, 2099, she learned about defendants' additional false statements published to her attorney, Carol L. Rosen, Esquire, by an AGF employee, Jeffrey L. Ledbetter, which were:
(Id. ¶ 15; Ex. 4 (ECF No. 35-1).)
Plaintiff avers that two months prior to November 13, 2009 (before the above letter was sent) she presented defendants with cancelled checks proving her payment for all the months in question. (Id. ¶ 21 (ECF No. 35).) Additionally, plaintiff avers that her bank statements confirm proof of payment to defendant for each and every month since February 1999. Plaintiff avers that she had no conversation with defendant about any form of mortgage modification and consistently refused their repeated efforts to induce her to borrow more money. (Id. ¶ 26.)
With respect to her IIED claim, plaintiff alleges that defendant intentionally misstated her indebtedness by proceeding with collection activities based upon false delinquencies. (Id. ¶ 27.) Plaintiff alleges that AGF harassed her by, among other ways: 1) barraging her with annoying phone calls beginning on June 17, 2009; 2) sending a male agent to her home on June, 27, 2009 who left his calling card in her mailbox—which caused her to fear for the safety of herself and her granddaughter; 3) sending plaintiff two identical inaccurate letters concerning her account; 4) engaging in a concerted effort to cause Wilson severe emotional distress, anxiety, and humiliation based upon a fictitious delinquency, including sending her an apparent notice of foreclosure generated by the consumer reporting agency, Experian Inc.; 5) impliedly throwing egg on her mailbox the morning after plaintiff was informed that the United States Post Office sent a warning to AGF concerning defendant's alleged improper and illegal use of her residential mailbox; and 6) impliedly smashing an egg on her vehicle. (Id. ¶¶ 27-37.)
Plaintiff argues that a person of ordinary sensibility would suffer extreme emotional distress, anxiety and humiliation if they were subject to defendant's aggression and assault. (Id. ¶ 39.)
On March 26, 2010, plaintiff filed the original complaint. The court permitted plaintiff leave of court to file an amended complaint, which she filed on January 5, 2011. On January 25, 2011, defendant filed an answer containing fourteen affirmative defenses, including conditional privilege of common interest with respect to the libel per se claim. On May 18, 2011, defendants filed the Motion for Judgment on the Pleadings (ECF No. 40) and a brief
On June 15, 2011, the court held a hearing on the Motion for Judgment on the Pleadings. As set forth more fully on the record, the court held that the Motion for Judgment on the Pleadings would be granted in part and denied in part. The court denied the Motion for Judgment on the Pleadings with respect to the claim for libel per se (count I). The court granted the Motion for Judgment on the Pleadings with prejudice against Casteel and without prejudice against AGF with respect to the claim for IIED (count II). This Memorandum Opinion sets forth the court's rationale for those rulings along with its rationale for denying the Motion to Strike.
The court must decide, as a matter of law, whether plaintiff's claims against defendants can be dismissed by a motion for judgment on the pleadings. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262 (3d Cir.2008). The court must accept as true all well-pled allegations of fact in the pleadings and draw every reasonable inference in favor of the party against whom judgment is sought. Id. at 262-63 (3d Cir.2008). When a motion for judgment on the pleadings alleges plaintiff's failure to state a claim upon which relief can be granted, the appropriate standard for deciding such a motion is the same as the standard used to decide a motion pursuant to Rule 12(b)(6).
"[A] Rule 12(c) motion is designed to provide a means of disposing of cases when the material facts are not in dispute between the parties and a judgment on the merits can be achieved by focusing on the content of the competing pleadings .... The motion ... only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court." 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1367, at 206-08 (3d ed. 2004). Courts disfavor motions for judgment on the pleadings and apply a very restrictive standard when ruling on such motions. Id. § 1368 at 222-23.
For purposes of the Motion, defendants do not dispute plaintiff's version of the facts set forth in the Amended Complaint. Defendants argue that the Motion should be granted because all their statements were made under a conditional privilege, pursuant to 42 PA. CONS.STAT. § 8343(7). Defendants contend that whether plaintiff set forth sufficient facts to meet each of the first six elements necessary to establish a cause of action for libel or libel per se under Pennsylvania law is without consequence, because defendants made the allegedly defamatory statements under the occasion of a conditional privilege. Defendants set forth this defense as an affirmative defense
In support, defendants rely upon Rankin v. Phillippe, 206 Pa.Super. 27, 211 A.2d 56, 58 (1965) (holding that a conditional privilege exists whenever "circumstances are such as to lead any one of several persons having a common interest
Defendants also point to the decision in Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980), in which the Pennsylvania Superior Court opined that a conditional privilege arises in any one of three situations: "(1) some interest of the person who publishes defamatory matter is involved; (2) some interest of the person to whom the matter is published or some other third party is involved; or (3) a recognized interest of the public is involved." Beckman, 419 A.2d at 588. Defendants maintain that the two alleged statements made by AGF's employees were each made for a proper purpose and under circumstances where each rightfully believed that the person to whom his statements were made had a common interest in the particular subject matter and were entitled to receive the statements. Defendants further argue that the BBB and Rosen solicited the statements from AGF at plaintiff's request.
Plaintiff argues that defendants have not proffered any facts which show a legally cognizable common interest between the BBB and defendants. Plaintiff maintains that the facts in Beckman are distinguishable from the facts in the instant case. Plaintiff contends that unlike Beckman, here there is no adversarial mutuality between defendants and the BBB, and the BBB is not a party in this case. Plaintiff notes that the dispute in Beckman took place in an academic setting where the alleged defamatory statements consisted of opinion derived from facts pertaining to the plaintiff's academic performance. Plaintiff argues that defendants ignore the distinction that the statements in issue here consisted of false facts, as opposed to an opinion based upon facts which was the circumstance in Beckman.
In Tucker v. Fischbein, 237 F.3d 275 (3d Cir.2001), the Court of Appeals for the Third Circuit recognized:
Tucker, 237 F.3d at 281 (citing 42 PA. CONS.STAT. § 8343(a) (1998)). The court of appeals instructed that, "[u]nder Pennsylvania law, the court must decide at the outset whether a statement is capable of defamatory meaning. Id. (citing Thomas Merton Ctr. v. Rockwell Int'l Corp., 497 Pa. 460, 442 A.2d 213, 215-16 (1981).)
"In Pennsylvania, a defamatory statement is one that `tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" Resnick v. Manfredy, 52 F.Supp.2d 462, 470 (E.D.Pa.1999) (quoting U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 922 (3d Cir.1990)). Pennsylvania has enacted statutory provisions governing actions for defamation. The applicable burdens of proof are codified at 42 PA. CONS.STAT. § 8343, which provides:
42 PA. CONS.STAT. § 8343(a), (b).
Here, the alleged defamatory publication implicated the personal credit status of plaintiff, who is a sole proprietor of a business. A written defamation is considered libel. See Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa.Super.Ct.2008) ("A `libel' is any malicious publication that is written, printed, or painted, or procured to be written, printed, or painted, and which tends to expose a person to contempt, ridicule, hatred, or degradation of character.") A publication imputing unworthiness of credit is libelous. Altoona Clay Prods., Inc. v. Dun & Bradstreet, Inc., 367 F.2d 625, 630-31 (3d Cir.1966).
Plaintiff alleges that defendants' statements were libelous per se. Words recognized as injurious on their face are actionable per se. Joseph v. Scranton Times L.P., 959 A.2d 322, 344 n. 23 (Pa.Super.Ct.2008). In discussing the plaintiff's burden to prove damages in the context of libel, the Pennsylvania Superior Court in Joseph instructed:
Joseph, 959 A.2d at 344.
In this case, accepting as true plaintiff's allegations, the alleged defamatory statement are libelous per se and the crux of the parties dispute, therefore, centers on two discrete issues: 1) whether defendants are entitled to a privileged status with respect to the relevant alleged defamatory statements published about plaintiff, and 2) if so, whether defendants abused that privilege.
"`A conditional privilege arises when a recognized interest of the public is
"`Communications ... made on a proper occasion, from a proper motive, in a proper manner, and which are based upon reasonable cause are privileged.'" Id. (quoting Moore v. Cobb-Nettleton, 889 A.2d 1262, 1268 (Pa.Super.Ct.2005)) (citing Miketic v. Baron, 450 Pa.Super. 91, 675 A.2d 324, 329 (1996); RESTATEMENT (SECOND) OF TORTS § 595 (Protection of Interest of Recipient or a Third Person)).
If a defendant carries its burden to show that a communication is conditionally privileged, the burden shifts to the plaintiff to establish that the defendant abused its conditional privilege. Miketic, 675 A.2d at 329. In Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980), the Pennsylvania Superior Court instructed:
Beckman, 419 A.2d at 588 (internal citations and footnote omitted) (citing RESTATEMENT (SECOND) TORTS § 599 (1976)); see Altoona Clay Prods., Inc. v. Dun & Bradstreet, Inc., 367 F.2d at 631-32 (3d Cir.1966) (finding that although credit publications are privileged as a matter of law in Pennsylvania, "[w]ant of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication, will destroy the privilege."). Defendants rely upon a conditional privilege based upon a common interest.
Here there is no disagreement that plaintiff asked BBB to do an investigation and that the alleged defamatory statement came in response to that request. At this stage of the litigation, however, the court does not have sufficient information to rule on whether a common interest exists sufficient to establish the privileged nature of defendant's statements. Typically, however, a common interest arises in the context of a close relationship, such as between members of a family, a work or business relationship, owners of common property, or common members of an organization. See RESTATEMENT (SECOND) OF TORTS § 596 (Common Interest) cmt. c (related to one's right to learn from an associate about matters in which one has an interest in common, such as a partner's right to be told about the details of the discharge of an employee by another partner); cmt. d (related to common property, business and professional interests); and cmt. e (related to members of religious, fraternal and charitable associations). Thus, the case law may not support a common interest under the instant circumstances. Plaintiff correctly points out that the decisions relied upon by defendant involve distinct circumstances in which the parties have a common interest based upon a close relationship. See Rankin, 211 A.2d 56 (involving an action for libel by a church elder against his church commission); Beckman, 419 A.2d 583 (involving an action for libel and slander brought by a student against his university and professor). Here, there is no allegation that BBB and defendants have such a close relationship. The court cannot determine at this stage of the litigation whether a conditional privilege based upon a common interest exists.
The elements of conditional privilege arising from an occasion are set forth in the RESTATEMENT (SECOND) OF TORTS § 593, which provides:
RESTATEMENT (SECOND) OF TORTS § 593.
Other sections of the RESTATEMENT (SECOND) OF TORTS, related to the protection of the interests of the publisher, a recipient, or a third person, may also be implicated. The elements of the protection of the publisher's interest are set forth in RESTATEMENT (SECOND) OF TORTS § 594, which provides:
RESTATEMENT (SECOND) OF TORTS § 594. This kind of conditional privilege may be implicated in the instant case. In addition, the interests of a recipient or a third person may be implicated under the circumstances.
The elements of a protection of interest of a recipient or a third person is set forth in section 595, which provides:
RESTATEMENT (SECOND) OF TORTS § 595. This kind of conditional privilege may also be implicated here because the information provided by defendants was furnished pursuant to a request.
Even if a conditional privilege applies, it is clear, pursuant to section 595 supra, that such privilege cannot be abused. A publisher abuses the conditional privilege based upon an occasion if the publisher knows or should know that the published information is not true. These elements are set forth in RESTATEMENT (SECOND) OF TORTS § 600, which provides:
RESTATEMENT (SECOND) OF TORTS § 600.
The court must view all factual allegations in the light most favorable to the plaintiff. Here plaintiff averred that she sent information to defendants showing that the payments in issue had been made. Any letter sent by defendants in contradiction thereof, viewed in the light most favorable to plaintiff, arguably supports plaintiff's allegation that defendants knew the information published concerning plaintiff's credit history to be false, or at a minimum, published that information in reckless disregard of the truth or falsity.
Even if a conditional privilege may exist in this case, the allegations set forth by plaintiff with respect to the statements made to the BBB are sufficient to support an abuse of the privilege. Therefore, judgment on the pleadings is not appropriate.
As an initial matter, defendants argue that plaintiff's IIED claim against Casteel should be dismissed because plaintiff did not set forth any facts under count II against Casteel. With respect to AGF, defendants argue that plaintiff's allegations concerning the conduct of AGF's other employees are not sufficiently extreme or outrageous to support a claim for IIED. Defendants note that it is unclear whether a cause of action for IIED exists under Pennsylvania law, citing Reardon v. Allegheny College, 926 A.2d 477, 488 (Pa.Super.Ct.2007), appeal denied, 596 Pa. 755, 947 A.2d 738 (2008).
Plaintiff argues that the tort of IIED is a viable cause of action under Pennsylvania common law and contends that she stated a claim for IIED and need not prove any element at this stage of the litigation. In support, plaintiff relies upon the decision in Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650 (2000). At the hearing on the Motion, counsel for plaintiff contended that defendants' actions were so outrageous and terrifying that they severely interrupted plaintiff's work, caused her to lose hair and sleep, impeded her speedy recovery from surgery, caused her to purchase a firearm, bar her windows, install an electronic alarm system and exhibit signs of paranoia and depression. These allegations, however, were not alleged in the Amended Complaint.
To date, the Pennsylvania Supreme Court has not expressly recognized a cause of action for IIED. Taylor, 754 A.2d at 652. The court has, however, cited RESTATEMENT (SECOND) OF TORTS § 46 "as setting forth the minimum elements necessary to sustain ... [an IIED] action." Id. (citing Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988, 991 (1987), and Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998)) (indicating that if the court were to recognize a cause of action for IIED "`[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society'") (quoting Buczek v. First Nat'l Bank of Mifflintown, 366 Pa.Super. 551, 531 A.2d 1122, 1125 (1987)). Even if the
Other courts in Pennsylvania, however, have recognized the tort of IIED and relied upon the RESTATEMENT (SECOND) OF TORTS § 46. See Reardon v. Allegheny College, 926 A.2d 477, 488 (Pa.Super.Ct.2007) (concluding that the appropriate legal standard to be applied in reviewing an IIED claim is whether the complaint sufficiently pleads outrageous conduct causing severe emotional distress corresponding with the provisions set forth in the RESTATEMENT (SECOND) OF TORTS § 46(1)); see also Strickland v. Univ. of Scranton, 700 A.2d 979, 987 (Pa.Super.Ct.1997) (finding that "`it is for the court to determine, in the first instance, whether the actor's conduct can reasonably be regarded as so extreme and outrageous as to permit recovery.'") (quoting Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566, 569 (1986)). In Strickland, the court of appeals stated:
Strickland, 700 A.2d at 987 (quoting Small v. Juniata College, 452 Pa.Super. 410, 682 A.2d 350, 355 (1996)) (quoting Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa.Super. 377, 368 A.2d 770, 773 (1976))).
RESTATEMENT (SECOND) OF TORTS § 46 provides:
RESTATEMENT (SECOND) TORTS § 46.
In Reedy v. Evanson, 615 F.3d 197 (3d Cir.2010), the Court of Appeals for the Third Circuit, among other matters, considered a state law claim for IIED. The trial court had granted summary judgment, finding that there was no conduct arising to the level of extreme and outrageous. The court of appeals stated:
Reedy, 615 F.3d at 231-32.
It is clear that Pennsylvania courts may permit an IIED claim to proceed in appropriate circumstances. To state a plausible claim plaintiff, however, must first allege facts that are so outrageous in character and extreme in degree to exceed all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. A resulting physical harm must also be alleged. See Fewell v. Besner, 444 Pa.Super. 559, 664 A.2d 577, 582 (1995) ("A plaintiff must also show physical injury or harm in order to sustain a cause of action for intentional infliction of emotional distress.") (citing Kazatsky, 527 A.2d at 995); see also Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.Super.Ct.2005) ("`In addition, a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct.'") (quoting Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1122 (Pa.Super.Ct.2004)).
At a minimum, this claim would not survive a motion to dismiss because plaintiff does not allege a resulting physical harm. Although plaintiff may request leave to amend to assert such harm, a plaintiff in Pennsylvania must have medical evidence to support such a claim. See Kazatsky, 527 A.2d at 995. Even if plaintiff could rightfully allege such harm, the facts alleged to be outrageous do not strike the court to go beyond all bounds of decency tolerated by a civilized society.
The alleged defamatory statement was made in response to an investigation that was initiated by plaintiff—not defendants. Thereafter, defendants responded to another inquiry by plaintiff's counsel, in which defendants asserted that plaintiff's accounts were past due as a result of untimely or delinquent payments. Such statements—if untrue—could be libelous per se because plaintiff's credit worthiness is implicated. Standing alone, however, that conduct does not rise to the level of being shocking and so outrageous that it exceeds the levels of decency tolerated by a civilized society.
Next, plaintiff alleged that an agent left an envelope in her mailbox which contained his business card. Although this behavior may be offensive and undesirable, it too is not sufficiently outrageous to go beyond the bounds of decency. Defendants also made several phone calls to plaintiff with respect to her delinquent account on one day. On the last call, plaintiff indicated that she intended to make the payment. Again, although this type of conduct could be found to go beyond annoyance, it does not strike the court as outrageous. It was not repeated on other days, and as far as the court can tell, did not involve threats of death or criminal action.
Thereafter, defendants mailed another letter to plaintiff indicating that her account remained delinquent and offering assistance if plaintiff was experiencing financial problems. The tone of such letters may be annoying—particularly if plaintiff had already paid the delinquent amount—but did not rise to the level of being so outrageous to sustain an actionable IIED
Examples given in the RESTATEMENT (SECOND) OF TORTS which illustrate actionable behavior are found at number 7 under comment e:
RESTATEMENT (SECOND) OF TORTS § 46 cmt. e(7). Such conduct was sufficient under the illustrations to be considered outrageous. Comment eight provides an illustration of conduct that is not so extreme or outrageous as to make A liable to B:
Id. § 46 cmt. e(8). Based upon the repeated number of incidents alone, the alleged conduct here appears to be more grave than the conduct illustrated in comment number eight. The conduct alleged here, however, is closer in nature to the offensive conduct illustrated in number eight as opposed to the outrageous conduct illustrated in number seven. There were no threats that plaintiff would lose her job or her home, or that defendants would tell others that they would take away plaintiff's livelihood by destroying her business.
Even considering all the alleged conduct together, the court cannot conclude plaintiff stated a plausible IIED claim. In so finding, the court does not condone such alleged offensive conduct; rather, the court finds that the allegations do not rise to the level of the requisite outrageous conduct to support a claim for IIED. Under the circumstances, the court will grant the Motion for Judgment on the Pleadings with respect to the Pennsylvania state law claim for IIED. Because the parties agree that plaintiff did not allege that Casteel's actions rose to the threshold level of IIED, the court will grant with prejudice the Motion for Judgment on the Pleadings against Casteel. The court will grant without prejudice the Motion for Judgment on the Pleadings with respect to plaintiff's IIED claim against AFG.
The court may grant a motion to strike pursuant to Federal Rule of Procedure 12(f) ("Rule 12(f)") which provides:
FED. R. CIV. P. 12(f).
Rule 12(f) Motions to strike are not favored. 5C CHARLES ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382.
Id. (footnotes and citations omitted.)
In her response to the Motion, plaintiff moved the court to strike defendants' affirmative defenses of failure to state a claim and conditional privilege as insufficient under Federal Rule of Civil Procedure 12(f), and to strike defendants' remaining defenses as unresponsive and immaterial to the Amended Complaint. At this stage of the litigation, however, the court cannot find defendants' affirmative defenses of failure to state a claim and conditional privilege to be wholly insufficient. Likewise, the court cannot determine that defendant's other affirmative defenses—not specified by plaintiff—are redundant, impertinent or scandalous. Therefore, plaintiff's Motion to Strike is without merit and will be denied.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Two working principles underlie Twombly. Id. at 1949-50. First, the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements. Id. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id. "[W]here 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 show[n]'—that the pleader is entitled to relief."' Id. at 1950 (citing FED. R. CIV. P. 8(a)(2)).
A court considering a motion to dismiss may begin by identifying pleadings that because they are mere conclusions are not entitled to the assumption of truth.
Id.
