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Brown v. Davis H. Elliot Construction Co. Inc.

United States District Court, S.D. West Virginia, Charleston Division

March 23, 2017

CARY BROWN, Plaintiff,
v.
DAVIS H. ELLIOT CONSTRUCTION COMPANY, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON UNITED STATES DISTRICT JUDGE.

         Before the Court is the Motion to Dismiss of Defendant Davis H. Elliot Construction Company, Inc. (ECF No. 6.) As set forth below, this unopposed motion is GRANTED.

         I. BACKGROUND

         Plaintiff Cary Brown is a citizen of North Carolina.[1] He sues his former employer, Defendant Davis H. Elliot Construction Company, Inc. (“DHE”). DHE's principal place of business is in Lexington, Kentucky.

         Plaintiff filed his Complaint in West Virginia state court. According to that pleading, DHE dispatched Plaintiff to West Virginia for a contractual assignment with a utility company. (Compl. ¶ 8.) Plaintiff does not describe the circumstances of this assignment nor the type of work he performed. DHE terminated Plaintiff “after one employee was injured on the job, and another employee was killed due to the negligence of DHE.” (Id. ¶ 9.) Plaintiff alleges the termination was in retaliation “for offering truthful testimony, assisting in the investigation, complaining about safety concerns, ” and additionally, or perhaps alternatively, due to Plaintiff's age. (Id.)

         These allegations give rise to twenty-one causes of action.[2] Count 1 alleges violations of the West Virginia Human Rights Act (“WVHRA”). Counts 2 and 3 are claims for breach of express and implied contracts. Counts 4 through 12 allege retaliatory termination in violation of various public policies of the State of West Virginia. Counts 13, 14, and 15 bring statutory claims under West Virginia whistleblower laws, the Family and Medical Leave Act (“FMLA”), and the Occupational Safety and Health Act (“OSHA”). Count 16 is a negligence claim. Counts 17, 18, 30, 31, and 32 allege misrepresentation, civil conspiracy, negligent infliction of emotional distress (“NIED”), intentional infliction of emotional distress (“IIED”), and intimidation. With the exception of the civil conspiracy alleged in Count 18, Plaintiff appears to bring each claim exclusively against DHE. Plaintiff also names as a defendant an unidentified DHE employee, referred to in the Complaint as “John Doe.” The allegations against John Doe are limited to those in the civil conspiracy claim.

         Invoking the Court's diversity jurisdiction, DHE removed the action on December 30, 2016.[3] See 28 U.S.C. § 1332. DHE filed the pending Motion to Dismiss on January 6, 2017. Plaintiff never filed a response.

         II. LEGAL STANDARD

         A motion to dismiss for failure to state a claim upon which relief may be granted tests the legal sufficiency of a civil complaint. Fed.R.Civ.P. 12(b)(6). A complaint must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a case should be dismissed for failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While the complaint need not assert “detailed factual allegations, ” it must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at 555.

         The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 556 U.S. 662 (2009), a civil rights case. There, the Court wrote:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” . . .). Rule 8 . . . does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 556.

Id. at 678-79. A court decides whether this standard is met by separating the legal conclusions determining whether those allegations allow the court to reasonably infer that “the defendant is liable for the misconduct alleged.” Id. A plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” thereby “nudg[ing][the] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570.

         III. DISCUSSION

         DHE's arguments in support of dismissal are straightforward. DHE contends, quite simply, that the Complaint lacks adequate factual support to state any plausible claim for relief. DHE poses this challenge to the Complaint as a whole and does not address each cause of action specifically. In fairness to Plaintiff, the Court will endeavor to address the ...


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