United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS COMPLAINT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
February 27, 2017, defendant Terrance Loveland
(“Loveland”), by counsel, filed a motion to
dismiss the complaint in the above-styled civil action. ECF
No. 4. The above-styled civil action was filed subsequent to
a related civil action also pending before this Court. The
first civil action, B and B Welding and Fabricating, Inc.
v. Tobia, Civil Action No. 5:16CV41, was commenced when
B and B Welding and Fabricating, LLC (“B and B”)
requested relief against Adam Tobia (“Tobia”) in
the form of declaratory judgment. B and B performs
construction services for the oil and gas industry, and Tobia
is a former employee of B and B. Tobia alleges that he had an
employment contract with B and B, and B and B claims that
Tobia was employed on an at-will basis.
then filed a third-party complaint against Loveland, the
chief executive officer and president of B and B. The
third-party complaint alleged that Loveland fraudulently
induced Tobia to work for B and B by leading him to believe
an employment contract had been executed. Loveland then filed
a motion to dismiss Tobia's third-party complaint. After
oral argument on the motion to dismiss the third-party
complaint, Tobia determined that his claim against Loveland
was not derivative under Federal Rule of Civil Procedure 14
and chose to proceed with an independent claim against
Loveland. Thus, the Court granted the motion to dismiss the
third-party complaint, and Tobia filed this second civil
action, Tobia v. Loveland, Civil Action No.
5:16CV187, which asserts Tobia's fraudulent inducement
claim against Loveland.
Loveland's present motion to dismiss the complaint in
this second civil action, Loveland argues that (1) Tobia
fails to allege any facts that support a legally cognizable
claim against the defendant and (2) the prior pending action
doctrine compels that this action be dismissed.
Loveland argues that the alleged facts do not support a
legally cognizable claim against him because a member of a
Limited Liability Company (“LLC”) is generally
not liable for alleged wrongful conduct made in the course
and scope of employment. Loveland claims that Tobia's
allegations against him are identical to Tobia's
assertions against B and B in his counterclaim in the first
civil action. Thus, Loveland claims that, because he was
acting as a member of B and B, there are no facts giving rise
to personal liability against him. Loveland then asserts that
Tobia's complaint fails to allege any facts in support of
piercing B and B's corporate veil.
Loveland argues that the prior pending action doctrine
compels dismissal of this civil action because this civil
action is duplicative of the claim already raised by Tobia in
the first civil action. Loveland asserts that the civil
actions are duplicative because the controlling issue in both
is whether Tobia was fraudulently induced by Loveland into
believing a contract for employment had been finalized.
Loveland further claims that the two civil actions arise from
the same transaction or occurrence and involve exactly the
same subject matter. Thus, Loveland asserts that, because
this civil action was the later-filed suit, it should be
dismissed under the prior pending action doctrine.
March 13, 2017, Tobia, by counsel, filed a response to the
motion. ECF No. 6. In his response, Tobia argues that the
complaint ascribes specific, wrongful conduct to Loveland and
does not allege that Loveland is liable solely because he is
a member of the LLC. Additionally, Tobia asserts that the
prior pending action doctrine does not support the dismissal
of this civil action because the first civil action does not
include a claim against Loveland and Loveland cannot be
joined in the first civil action. Thus, Tobia claims that
this second civil action cannot be dismissed because it
involves different parties and a resolution of the contract
dispute in the first-filed case is not determinative of
Tobia's fraudulent inducement claim against Loveland.
Lastly, Tobia represents that he has not stated a separate
claim to pierce B and B's corporate veil but rather a
distinct claim against a member of the LLC for that
member's individual conduct. Loveland did not file a
reply to Tobia's response to the motion.
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
a court must accept all well-pled facts contained in the
complaint as true. Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir.
2009). However, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Id. (citing Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement
of the claim for relief; it is not a procedure for resolving
a contest about the facts or the merits of the case. 5B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (3d ed. 1998). The
Rule 12(b)(6) motion also must be distinguished from a motion
for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to
test whether there is a genuine issue of material fact.
Id. For purposes of the motion to dismiss, the
complaint is construed in the light most favorable to the
party making the claim and essentially the court's
inquiry is directed to whether the allegations constitute a
statement of a claim under Federal Rule of Civil Procedure
8(a). Id. § 1357.
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on is face.'” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Facial plausibility is established once the
factual content of a complaint ‘allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Nemet
Chevrolet, 591 F.3d at 256 (quoting Iqbal, 556
U.S. at 678). Detailed factual allegations are not required,
but the facts alleged must be sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Court has construed the complaint in the light most favorable
to Tobia for the purposes of this motion to dismiss. In doing
so, this Court finds that the complaint makes sufficient
factual allegations against Loveland in his individual
capacity to survive the Rule 12(b)(6) motion to dismiss. The
fraudulent inducement claim is legally cognizable against
Loveland individually regardless of the fact that there is a
separate pending action against B and B. “By
proscribing liability on the sole basis of being a
member or manager of an LLC, the [West Virginia] Legislature
implicitly has left intact the prospect of an LLC member or
manager being liable on grounds that are not based solely on
a person's status as a member or manager of an
LLC.” Kubican v. The Tavern, LLC, 752 S.E.2d
299, 306 ( W.Va. 2013) (construing W.Va. Code §
31B-3-303). The complaint alleges that, “[b]y his
conduct, Loveland personally benefitted from the employment
of Tobia under false ...