United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is a Motion to Dismiss [ECF No. 95] filed by
Defendants Alutiiq Technical Services, LLC and Alutiiq, LLC.
For the reasons that follow, the Motion is
December 1, 2017, the plaintiff filed a Complaint [ECF No. 1]
against his previous employer, Defendant TSI Corp. The
Complaint alleged claims of wrongful termination and
discriminatory failure to rehire. In November 2018, the
plaintiff moved to amend his Complaint to add several parties
as defendants, including Alutiiq Technical Services, LLC and
Alutiiq, LLC (collectively “Alutiiq”).
court granted the plaintiff's motion to amend on November
26, 2018, and the plaintiff's Corrected First Amended
Complaint (“Amended Complaint”) [ECF No. 67], the
operative pleading in this matter, was filed on that same
date. The Amended Complaint raises three claims against
Alutiiq. The first two claims are brought under the West
Virginia Human Rights Act (“WVHRA”) for age and
disability discrimination and for “[c]onspiring,
[a]iding and [a]betting, [o]bstructing or [i]mpeding under
the WVHRA.” Am. Compl. [ECF No. 67] ¶¶ 59-76.
The third cause of action is for intentional infliction of
emotional distress. Id. ¶¶ 82-85. On
February 7, 2019, Alutiiq filed a Motion to Dismiss [ECF No.
95] pursuant Federal Rule of Civil Procedure 12(b)(6),
contending that these three claims are time-barred.
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). When ruling
on a motion to dismiss, courts must accept as true all of the
factual allegations contained in the complaint and draw all
reasonable inferences in favor of the plaintiff. E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011).
survive a motion to dismiss, the plaintiff's factual
allegations, taken as true, must “state a claim to
relief that is plausible on its face.” Robertson v.
Sea Pines Real Estate Co., 679 F.3d 278, 288 (4th Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The plausibility standard is not a probability
requirement, but “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007)). Although it is
true that “the complaint must contain sufficient facts
to state a claim that is plausible on its face, it
nevertheless need only give the defendant fair notice of what
the claim is and the grounds on which it rests.”
Hall v. DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir.
2017) (citing Wright v. North Carolina, 787 F.3d
256, 263 (4th Cir. 2015)).
Motion to Dismiss is premised solely on a statute of
limitations defense. However, “a motion to dismiss that
is filed under Federal Rule of Procedure 12(b)(6), which
tests the sufficiency of the complaint, generally cannot
reach the merits of an affirmative defense, such as the
defense that the plaintiff's claim is time-barred.”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007). The motion may reach the affirmative defense in
the “relatively rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in
the complaint.” Id. This principle only
applies when all facts necessary to the affirmative defense
clearly appear on the face of the complaint. Id.
the facts alleged in the Amended Complaint are insufficient
to show that the plaintiff's claims against Alutiiq are
time-barred because they do not foreclose a “potential
rejoinder” to Alutiiq's statute of limitations
defense. Id. at 466. The plaintiff has argued that
his claims are not barred by the relevant statute of
limitations because the amendment relates back to the filing
of his original Complaint under Federal Rule of Civil
Procedure 15(c). See Thompson v. Vista View LLC, No.
2:06-cv-00585, 2009 WL 10688423, at *3 (S.D. W.Va. Jan. 26,
2009) (Goodwin, J.) (denying motion to dismiss based on
statute of limitations grounds where the plaintiff argued
that the claims in her amended complaint related back under
Rule 15(c)). The plaintiff also contends that the statute of
limitations is tolled by the discovery rule and the doctrine
of fraudulent concealment. Contrary to Alutiiq's assertions,
the plaintiff “is not . . . required to plead facts
establishing” the elements of such rejoinders in order
to defeat Alutiiq's affirmative defense. Id.
“Rather, the plaintiff must have an opportunity to
rebut the defense after the affirmative defense is
raised.” Id.; see Goodman, 494 F.3d
at 466 (explaining that defendants must show that potential
rejoinder to an affirmative defense was foreclosed by the
complaint because otherwise a plaintiff would be required
“to plead affirmatively in his complaint matters that
might be responsive to affirmative defenses even before the
affirmative defenses are raised”); see also Wendy
Rupe Tr. v. Cabot Oil & Gas Corp., No.
2:09-cv-01435, 2010 WL 3894039, at *4 (S.D. W.Va. Sept. 30,
2010) (denying motion to dismiss based on statute of
limitations grounds and noting that “[the plaintiffs]
are not required to rebut the affirmative defense of the
statute of limitations in their complaint”).
sure, Alutiiq contends that it did not have notice of the
action and that relation back is therefore improper. As in
Thompson, however, the plaintiff “must have an
opportunity to show that [Alutiiq] had notice of the action
and that the requirements of Rule 15(c) have been met.”
2009 WL 10688423, at *3. Likewise, the plaintiff must have a
chance to demonstrate that the statute of limitations was
tolled. In short, this is not one of the rare cases where it
is clear from the face of the Amended Complaint that the
plaintiffs claims are time-barred. Therefore, I cannot
address Alutiiq's statute of limitations defense at this