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Zeng v. Marshall University

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

March 26, 2019

WEI-PING ZENG, Plaintiff,
v.
MARSHALL UNIVERSITY, DR. JEROME A. GILBERT; DR. JOSEPH SHAPIRO; DR. W. ELAINE HARDMAN; DR. DONALD A. PRIMERANO; and DR. RICHARD EGLETON, Defendants.

          MEMORANDUM OPINION ORDER

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE

         Pending before this Court are Defendants' four motions to dismiss Plaintiff's second amended complaint: (1) Defendant Marshall University's (“MU”) Motion to Dismiss Second Amended Complaint (ECF No. 66); (2) Defendant Dr. Jerome A. Gilbert's Motion to Dismiss Second Amended Complaint (ECF No. 73); (3) Defendants Dr. W. Elaine Hardman's and Dr. Richard Egleton's Motion to Dismiss Second Amended Complaint (ECF No. 75); and (4) Defendants Dr. Joseph Shapiro's and Dr. Donald Primerano's Motion to Dismiss Second Amended Complaint (ECF No. 77).

         Also pending before this Court are various motions related to briefing the issues addressed in the above motions to dismiss: (1) Plaintiff's Motion for Leave to File Surreply to Defendant MU's Motion to Dismiss (ECF No. 80); (2) Defendant MU's Motion to Strike (ECF No. 82); (3) Plaintiff's Motion for Leave to File a Surreply to Defendants' Motions to Dismiss the Second Amended Complaint (ECF No. 92); (4) Plaintiff's Modified Motion for Leave to File a Surreply to Defendants' Motions to Dismiss the Second Amended Complaint (ECF No. 94); and (5) Plaintiff's Modified Motion for Leave to File a Surreply to Defendants' Motions to Dismiss the Second Amended Complaint (ECF No. 95).

         Pursuant to an Order issued on May 23, 2017, this action was referred to United States Magistrate Judge Cheryl A. Eifert for proposed findings of fact and recommendation for disposition. ECF No. 3. On February 5, 2019, the Magistrate Judge submitted proposed findings and recommended that this Court grant, in part, and deny, in part, the pending motions from Plaintiff and Defendants. Proposed Findings and Recommendation, ECF No. 188, at 47-48. Plaintiff now objects to the findings and recommendation. Objections, ECF No 204. For the reasons below, the Court adopts, in part, the proposed findings and recommendations of Magistrate Judge Eifert, and requests new proposed findings and recommendations on narrow issues explained below.

         I. BACKGROUND

         The entire factual background of this case is discussed in detail in previous orders, [1] and the few specific facts that are relevant to this order will be outlined as necessary in the sections below.

         II. STANDARD OF REVIEW

         A. Magistrate Judge's Findings

         This Court must “make a de novo determination of those portions of the ... [Magistrate Judge's] proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see e.g., Berry v. Colvin, No. 14-9859, 2015 WL 1506128, at *1 (S.D. W.Va. Mar. 31, 2015).

         B. Motion to Dismiss

         Defendant MU files its motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, while the other Defendants rely upon Rule 12(b)(6). See ECF Nos. 66, 73, 75, 77.

         1. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

         A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can follow two tracks. Under the first track, a party asserts a “factual attack, ” claiming that the jurisdictional allegations made in the complaint are inaccurate. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Under the second track, a party asserts a “facial attack, ” claiming that the jurisdictional facts contained within the complaint, taken as true, fail to support a court's subject matter jurisdiction over the action. See id.; Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th Cir. 1986). When considering a “facial attack, ” a court affords the plaintiff “the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Kerns, 585 F.3d at 192 (internal quotation marks and citation omitted). Defendant MU has asserted a facial attack, and therefore the Court will proceed under the Rule 12(b)(6) procedural framework.

         2. 12(b)(6) Motion to Dismiss for Failure to State a Claim

         Federal Rule 8(a) requires a complaint to include “a short and plain statement of the claim . . . showing entitle[ment] to relief.” Fed.R.Civ.P. 8(a)(2). To overcome a motion to dismiss under Federal Rule 12(b)(6), a complaint must also be plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546 (2007). This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations omitted). A complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

         Accepting the factual allegations in the complaint as true-even when doubtful-the allegations “must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotations and citations omitted). “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.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted). Finally, a court must also “draw[ ] all reasonable factual inferences from ...


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