United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
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.
Cary Brown is a citizen of North Carolina. He sues his
former employer, Defendant Davis H. Elliot Construction
Company, Inc. (“DHE”). DHE's principal place
of business is in Lexington, Kentucky.
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.
allegations give rise to twenty-one causes of
action. 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.
the Court's diversity jurisdiction, DHE removed the
action on December 30, 2016. See 28 U.S.C. §
1332. DHE filed the pending Motion to Dismiss on January 6,
2017. Plaintiff never filed a response.
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.
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.
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