United States District Court, S.D. West Virginia, Charleston Division
GEORGE E. GATES, Plaintiff,
RODNEY MORRIS, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
the court is (1) the Motion to Dismiss the Complaint, filed
by defendants Rodney Morris (“Morris”), E. I. du
Pont de Memours and Company (“DuPont”), The
Chemours Company (“Chemours”), and Aetna Life
Insurance Company (“Aetna”) (collectively,
“the defendants”) on June 30, 2017 [ECF No. 7];
and (2) the Motion to Amend Complaint, filed by plaintiff
George E. Gates on August 8, 2017 [ECF No. 17]. Briefing is
now complete and the motions are ripe for adjudication. For
the reasons stated below, the Motion to Amend Complaint is
DENIED and the Motion to Dismiss Complaint
plaintiff filed his complaint in the Kanawha County Circuit
Court in West Virginia on March 21, 2017 advancing seven
different counts of relief. Compl. ¶¶ 14-61 [ECF
No. 1-1]. Count VII, in particular, states:
While plaintiff disputes the claims as set forth above,
against Aetna are covered by ERISA, to the extent the same
are, plaintiff pleads that Aetna violated the same and by its
violation caused harm to plaintiff which entitles plaintiff
to benefits of the policy, costs, and attorney's fees,
and whatever other relief may be available or the Court deems
available. Plaintiff acknowledges that if ERISA applies,
Plaintiff's common law claims for bad faith are
Compl. ¶ 61.
defendants removed this action on June 26, 2017. See
Notice of Removal [ECF No. 1]. In their notice of removal and
as a basis for federal subject-matter jurisdiction, the
defendants maintain that the plaintiff expressly pleads an
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1001, et
seq., claim in Count VII.
on June 30, 2017, the defendants moved to dismiss Counts I
through VI on several grounds, including failure to state a
claim upon which relief may be granted, and Count VII - the
plaintiff's explicit ERISA claim - for failure to exhaust
his administrative remedies under his ERISA plan prior to
filing suit in federal court. The plaintiff did not contest
the merits of the motion to dismiss in response, but instead
simply requested leave to amend his complaint. The
forthcoming proposed amended complaint, the plaintiff
continued, would be consistent with his desire to only
“bring ‘ERISA type' claims against named
defendants and wrongful termination claims against Defendants
Moore, [DuPont], and [Chemours].” Pl.'s Combined
Mot. & Mem. of Law in Resp. to Defs.' Mot. to Dismiss
¶ 2 [ECF No. 12].
August 8, 2017, the plaintiff filed the Motion to Amend
Complaint [ECF No. 17] and attached the proposed amended
complaint to his Supplemental Motion to Amend Complaint,
filed August 9, 2017 [ECF No. 18-1] (“Am.
Compl.”). In seeking to amend his pleading under Rule
15(a), the plaintiff stated that he moves “only to
ensure that his ERISA claims are protected while dismissing
claims of common law and statutory bad faith” and
“to provide more detail concerning” his West
Virginia Human Rights Act (“WVHRA”) claims.
Pl.'s Supp. Combined Mot. for Leave to File Am. Compl.
& Mem. of Law in Supp. of Pl.'s Mot. to Am. Compl.
¶ 7 [ECF No. 18].
defendants now seek a court order denying the plaintiff's
request to amend the complaint as futile, and the
adjudication of their motion to dismiss. When, as here, both
a motion to amend the complaint and a motion to dismiss the
complaint under Rule 12(b)(6) are pending, it is generally
improper to resolve the motion to dismiss before deciding the
motion to amend. See Talley v. Ocwen Loan Servicing,
LLC, 673 F. App'x 329, 330 (4th Cir. 2017) (vacating
dismissal under Rule 12(b)(6) and remanding to the district
court to “specifically address” the
plaintiff's motion to amend the complaint).
15(a) directs that leave to amend a pleading “shall be
freely given when justice so requires.” Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006). “This
liberal rule gives effect to the federal policy in favor of
resolving cases on their merits instead of disposing of them
on technicalities.” Id. “Leave to amend
a pleading should be denied only” in those rare
occasions “when the amendment would be prejudicial to
the opposing party, there has been bad faith on the part of
the moving party, or the amendment would have been
futile.” Id. An amendment is
“futile” if, for example, “the claim sought
to be pleaded by amendment plainly would be subject to a
motion to dismiss under Fed.R.Civ.P. 12(b)(6).”
Devil's Advocate, LLC v. Zurich Am. Ins. Co.,
666 F. App'x 256, 267 (4th Cir. 2016).
motion to dismiss filed under Rule 12(b)(6) tests the legal
sufficiency of a complaint or pleading. Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A pleading
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). It must therefore be specific enough to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
standard “does not require ‘detailed factual
allegations, ' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To survive a motion to
dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Twombly, 550 U.S. at 570). To achieve
facial plausibility, the plaintiff must plead facts allowing
the court to draw the reasonable inference that the defendant
is liable, moving the claim beyond the realm of mere
possibility. Id. Mere “labels and
conclusions” or “formulaic recitation[s] of the
elements of a cause of action” are insufficient.
Twombly, 550 U.S. at 555.
Motion to Amend the Complaint
plaintiff asserts three different counts in the proposed
amended complaint: (I) Breach of Contract; (II) Violation of
the WVHRA; and (III) Claim for ERISA Benefits. The defendants
advance several reasons upon which the court should find the
proposed amended complaint futile and, all together, not
actionable. One of their primary contentions concerns the
purported failure of the plaintiff to plead Counts I and II
in a manner that achieves facial plausibility necessary to
pass muster under Twombly and Iqbal. As it
relates to Count III, the defendants argue that the plaintiff
failed to exhaust his administrative remedies before bringing
an ERISA claim in federal court.
Proposed Count I - Breach of Implied Contract
to the proposed amended complaint, defendants Du Pont and
Chemours previously employed the plaintiff. During his
employment, Morris and Chemours purportedly advised the
plaintiff that “he needed to go get the medical
treatment he needed, [and] that his job would be waiting on
him when he got back.” Am. Compl. ¶ 16(ii). But
for this alleged promise, the plaintiff states, he would not
have taken leave from work to receive medical treatment.
Id. ¶ 17(iii). After returning from this leave
and able to perform his duties as modified via an
“accommodation” he was offered prior to taking
leave, the plaintiff alleges that the
“Defendants” reneged on that promise and informed
him that his position had been terminated. Id.
the plaintiff does not allege who uttered these
representations or their relationship to any of the named
defendants, when or how they were made, the nature of the
alleged accommodation, or any indicia of when these alleged
events occurred. Moreover, aside from these untethered
accusations of misconduct, the remaining accusations are
almost entirely conclusions of law. The only permissible
inference that remains, taking the facts alleged as true and
disregarding legal conclusions and unadorned accusations of
wrongdoing, is that at some point in time, the
defendants' conduct was inconsistent with the
expectations of the plaintiff. Even if this inference
supported a finding of plausibility in the abstract, the
proposed amended complaint still lacks several significant
and requisite facts necessary to establish this
claim for breach of implied contract, i.e., the creation
of an implied contract, its terms, manner of acceptance, and
consideration. Instead, the plaintiff alleges only that the
parties “entered into a valid implied contract for
employment, benefits, and retirement, ” and that the
undefined “Defendants” breached that agreement.
Id. ¶ 16(iii).
result, the proposed amended complaint does not provide
either Morris or Chemours fair notice of what the
plaintiff's breach of implied contract claim is or the
grounds upon which it rests. Count I of the proposed amended
complaint thus could not survive a motion to ...