United States District Court, N.D. West Virginia
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANT'S MOTIONS TO DISMISS
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
matter is before the undersigned pursuant to an Order of Case
Referral (ECF No. 13) in conjunction with a Notice, Consent,
and Reference of a Civil Action to a Magistrate Judge (ECF
No. 27). On November 21, 2018, Defendant filed a Motion to
Dismiss, currently pending before the undersigned. Also,
pending before the undersigned is Defendant's Motion to
Dismiss Plaintiff's Amended Complaint filed on March 29,
2019. (ECF No. 58). For the foregoing reasons, the
undersigned DENIES Defendant's Motion to
Dismiss Plaintiff's Complaint (ECF No. 16) as
MOOT because an Amended Complaint was filed and
GRANTS in part and DENIES
in part Defendant's Motion to Dismiss Plaintiff's
Amended Complaint (ECF No. 58), as delineated below.
alleged that the Economic Development Administration
(hereinafter “EDA”), of the U.S. Department of
Commerce, contracted with Hardy County Rural Development
Association (hereinafter “HCRDA”) to diligently
pursue development over an Industrial Park, Wardensville
Industrial Park, located in Hardy County, West
Virginia. (ECF No. 56, at ¶ 1). As a part of
the agreement, Hardy County was a recipient of $980, 000.00
Grant earmarked for land and industrial development.
According to Plaintiff, the EDA Grant required that any land
that received benefits of the funds needed to follow
“Industrial Covenants and Restrictions” that were
approved by the Assistant Secretary of the EDA. Id.
at ¶ 2.
alleged that since conferring the grant to HCRDA, HCRDA sold
property that had covenants and restrictions which contained
definitions that were inconsistent than those required by
EDA; HCRDA “tolerated uses non-compliant to those
Covenants and Restrictions on some properties”; HCRDA
sold properties with unapproved, non-compliant covenants and
Restrictions; HCRDA sold properties with deeds without
covenants or restrictions; HCRDA sold property that was
located in the Industrial Park but claimed to be adjoining to
the Industrial Park; HCRDA developed properties to retain the
profit of lease income; and, HCRDA did not report sales of
properties to the EDA required. Id. at ¶ 4a-d.
alleged that there is a “discord” between the
defined location of the Industrial Park, the area described
in the Covenants and Restrictions of the Industrial Park, and
the actual areas that are subject to the Covenants and
Restrictions. Id. at ¶ 9. Plaintiff also
alleged that HCRDA wrongfully advertised the Industrial Park
as a “business district” and allowed for the
development of buildings designed for this purpose.
further alleged that he listed Parcels 3 and 4 in the
Industrial Park for sale. Plaintiff alleges that HCRDA told
Plaintiff that his real estate agent that “real estate
sales signage is not permitted.” Id. at ¶
13. Plaintiff also alleged that HCRDA informs the real estate
agent that the lots “were approved for electronic
manufacturing.” Id. at ¶ 14. The
advertised price of the property was $135, 000 and the Hardy
County Tax Assessor valued the property at $129, 000.00.
Id. at ¶ 15. Plaintiff alleges that HCRDA
approved action to engage in a forced sale because Plaintiff
had failed to abide by Clause 8 of the Covenants and
Restrictions. Id. Plaintiff then alleged that he
provided HCRDA with documentation regarding the permitting of
an existing building, which had allegedly been completed
within one-year allowed. Id. ¶ 16. Plaintiff
stated that HCRDA changed the reason for the forced
repurchase, identifying that Plaintiff's approved project
did not occur within the required time. Id. at
states that HCRDA's attorney discussed with
Plaintiff's attorney the issue of real estate sales sign
usage and a there was a negotiation of an offer price based
on the professional appraisal. Id. at ¶ 18.
Plaintiff alleges that approximately two weeks later,
HCRDA's counsel denied the request for signage approval.
Id. at ¶ 19. Plaintiff alleges that his
attorney then contacted HCRDA's attorney requesting
confirmation that the request for signage is denied and the
right to repurchase was still in effect, which prohibited a
private sale. Id. at ¶ 20. Plaintiff alleged
that HCRDA then evaded or denied access to documents
contained in FOIA requests made by Plaintiff's counsel.
Id. at ¶ 22. Plaintiff alleged that HCRDA was
told that certain documents, relating to the Special
Conditions, were no longer kept, but then visited the officer
a week later only to find the document but was further denied
access to HCRDA's minutes. Id. at ¶ 22.
Plaintiff then alleged that HCRDA then gave him one more day
to access the documents and that would fulfill his right to
access the record of a public entity. Id. at ¶
alleged that following those incidents, Plaintiff was sent a
letter by HCRDA's attorney stating that he has not been
abiding by the landscape maintenance conditions as required
by the covenants, and further alleged that other land owners
who are required to similarly maintain their landscape were
not approached. Id. at ¶27. Further
communication was made to discuss whether Plaintiff had
sufficiently remedied the landscape issue. Id.
¶ 30. Plaintiff alleged that he did not get confirmation
from HCRDA's attorney. Id. ¶ 34.
August 29, 2018, Plaintiff filed a Complaint alleging that
Defendant has failed to provide documents to him under West
Virginia's Freedom of Information Act and HCRDA has
committed fraud, conspiracy, and possession of false papers
against the United States. (ECF No. 1). On September 20,
2018, Defendant filed its Answer denying the allegations
contained in the Complaint. (ECF No. 9). On November 21,
2018, Defendant filed a Motion to Dismiss. (ECF No. 16). On
December 21, 2018, Plaintiff filed his Response to
Defendant's Motion to Dismiss (ECF No. 28). On January 7,
2019, Plaintiff filed a Motion to Amend the Complaint (ECF
No. 33), which was granted on January 9, 2019. (ECF No. 38).
On January 31, 2019, Defendant filed a Motion for Protective
Order and Stay of Discovery until the final disposition of
the pending Motion to Dismiss (ECF No. 50), which was granted
on February 5, 2019. (ECF No. 51). On May 29, 2019, Defendant
filed a Motion to Dismiss Plaintiff's First Amended
Complaint. (ECF No. 58, 59). On April 23, 2019, Plaintiff
filed a Response in Opposition of Defendant's Motion to
Dismiss Plaintiff's First Amended Complaint. (ECF No.
63). On May 3, 2019, Defendant filed a Reply to
Plaintiff's Response. (ECF No. 64).
Plaintiff's Complaint (ECF No. 1)
August 29, 2018, Plaintiff filed a Complaint before this
court. (ECF No. 1). Plaintiff alleged that the above factual
background constituted a violation of 13 C.F.R. §
314.4-Authorized Use of Project Property; 13 C.F.R. §
309.1-Redistributions under parts 303, 305, and 206; Major
Fraud Against the United States in violation of 18 U.S.C.
§ 1031; Conspiracy to commit offense or to defraud
United States in violation of 18 U.S.C. § 371;
Possession of False Papers to Defraud the United States in
violation of 18 U.S.C. § 1002; Conspiracy Against Rights
in Violation of 18 U.S.C. § 241; and Deprivation of
Rights under Color of Law in violation of 18 U.S.C. §
Defendant's Motion to Dismiss (hereinafter “Initial
Motion”) (ECF No. 16)
November 21, 2018, Defendant filed its Motion to Dismiss and
argued that the Complaint should be dismissed in its entirety
for failure to state a claim. (ECF No. 16). Defendant next
argued that that Plaintiff's cause of action pursuant to
13 C.F.R. §§ 314.3 and 309.1 must be dismissed
because Plaintiff does not have standing to recover damages
pursuant to these regulations. (Def. Mot. at 2). Defendant
further argued that 18 U.S.C. §§ 241, 242, 371,
1031, and 1002 are criminal statutes that do not create a
private cause of action. Id. 2-4.
Defendant argued that as a political subdivision, HCRDA has
immunity from suit arising from the alleged intentional
actions of Defendant. Id. at 4. Finally, Defendant
argued that the Complaint should be dismissed for failure to
state a claim and that Plaintiff's Complaint
“contains nothing more than speculative legal
conclusions that are unsupported by any applicable law to
support his claims against Development Authority.”
Id. at 5.
Plaintiff's Response to Defendant's Motion to Dismiss
(hereinafter “Initial Response”)
December 21, 2018, Plaintiff filed his Response to
Defendant's Motion to Dismiss. Plaintiff argued that the
facts supported in the Complaint and accompanying exhibits
evidence that HCRDA's negative impact on the community.
Plaintiff further states that West Virginia § 7-12-6
states the HCRDA can “sue and be sued” and that
debts of this corporation is separate from the county
commission. Plaintiff alleges that neither a
Cort analysis nor a similar implied rights
analysis was not done in Defendant's Motion. Plaintiff
also alleged that Defendant “violated the contractual
agreements of plaintiff's deed of property and attached
Covenants and Restrictions, particularly but not limited to
the loss of acreage of surrounding land in like industrial
use and industrial use buffer zone, which is vital to the
uses allowed by the Covenants and Restrictions.”
also alleges that Defendant's argument regarding immunity
under West Virginia Code § 29-12-5 are based on
“irrelevant case law citations, omission of
disqualifying sections within the same statutes cited by the
defendant, ludicrous assertions which contort basic logic and
justice, and impression of jurisdictionally of West Virginia
Code in this Federal Court.” Plaintiff further argues
that the Economic Development Authority Requirements for
Approve Projects 8th edition: General Conditions
and the SPECIAL CONDITIONS for project #01-01-03226 extended
powers and authorities of the Secretary of Commerce under 42
U.S.C. § 3211 to Plaintiff which allows Plaintiff to
seek relief for a violation of said regulations.
Plaintiff's Amended Complaint (ECF No. 56)
January 9, 2019, Plaintiff filed an Amended Complaint (ECF
No. 56). In his Amended Complaint, Plaintiff alleged that
Defendant committed Major Fraud against the United States in
violation of 18 U.S.C. § 1031; Conspiracy to Commit
Offense or to Defraud the United States in violation of 18
U.S.C. § 371; Possession of false papers to Defraud the
United States in violation of 18 U.S.C. § 1002; Equal
Rights under the law in violation of 42 U.S.C. § 1981;
Conspiracy to Interfere with Civil Rights in violation of 42
U.S.C. § 1985; Proceedings in Vindication of Civil
Rights in violation of 42 U.S.C. § 1988; and, Action for
Neglect to Prevent in violation of 42 U.S.C. § 1986 as
described in Paragraph's 4 through 7 of the Amended
also alleged that Defendant committed Conspiracy against
rights in violation of 18 U.S.C. § 241; Deprivation of
Rights under Color of Law in violation of 18 U.S.C. §
242; Property Rights of Citizens in violation of 42 U.S.C.
§ 1982; Civil Action for Deprivation of Rights in
violation of 42 U.S.C. § 1983; Conspiracy to Interfere
with Civil Rights in violation of 42 U.S.C. § 1985;
Proceedings in Vindication of Civil Rights in violation of 42
U.S.C. § 1988; Action for Neglect to Prevent in
violation of 42 U.S.C. § 1986, as delineated in
Paragraphs 13, 14, 15, 17, 21, 24, 25, and 27 of the Amended
Complaint. Plaintiff further alleges that Defendant violated
West Virginia Code 29B-1-C and 42 U.S.C. § 1983, 1985,
1988, and 1986 as delineated in Paragraphs 22, 24, and 25.
Defendant's Motion to Dismiss Plaintiff's Amended
Complaint (hereinafter “Amended Motion”) (ECF No.
March 29, 2019, Defendant filed a Motion to Dismiss
Plaintiff's First Amended Complaint (ECF No. 58). In
Defendant's Amended Motion, Defendant incorporates its
arguments presented in the Initial Motion (ECF No. 16).
Defendant next argued that the new claims, in general, do not
state a claim upon which relief can be granted. Defendant
stated that there were no additional facts or argument made,
but rather Plaintiff simply cited the Federal and West
Defendant argued that Plaintiff failed to state a claim for a
violation of 42 U.S.C. § 1981 because Defendant does not
allege that he was discriminated against as a result of his
race or ethnicity as required under the statute. Defendant
also argued that the claim for a violation of 42 U.S.C.
§ 1985 does not state a claim because Plaintiff failed
to allege specific facts that demonstrate that HCRDA
conspired to discriminate against him nor that he is part of
a certain class, which is required under the statute.
Defendant also argued that 42 U.S.C. § 1988 claim does
not create a cause of action, but is simply meant to
compliment Sections 1981, 1982, 1983, 1985, 1986, and 2000.
Defendant argued that Plaintiff has failed to adequately
state a claim under West Virginia Code Section 29B-1-1 et
seq. because Plaintiff has failed to “provide
information with respect to the nature of the Plaintiff's
Freedom of Information Act request, what the Development
Authority did, or did not do, in response to the
Plaintiff's Freedom of Information Act request, and most
importantly how the Development Authority violated the
Plaintiff's rights under the Freedom of Information
Act.” (ECF No. 59, at 12).
Plaintiff's Response to Defendant's Motion to Dismiss
Plaintiff's Amended Complaint (hereinafter “Amended
Response”) (ECF No. 63)
April 23, 2019, Plaintiff filed a Response to Defendant's
Motion to Dismiss Plaintiff's First Amended Complaint.
(ECF No. 63). Plaintiff argued in opposition of
Defendant's Motion to Dismiss but stated that this
Response incorporated any arguments that were contained in
the Initial Response. Plaintiff further alleged that there
are many viable courses of adjudication which Plaintiff
believes can resolve this matter after review of the case.
Plaintiff argued that Paragraph 6 of the Amended Motion
“further highlights the depth and solidarity in
contempt of law demonstrated by the defendant, its members
Defendant's Reply to Plaintiff's Amended Response
(ECF No. 64)
3, 2019, Defendant filed a Reply to Plaintiff's Response
to Defendants Motion to Dismiss Plaintiff's Amended
Complaint (ECF No. 64). Defendant argued that after being
thoroughly advised of his requirements to respond to survive
a motion to dismiss, Plaintiff failed to provide any argument
which was raised by Defendant. Defendant argues that
Plaintiff “lists facts, and various Federal code
sections, Federal regulations, and an incorrectly identified
section of the West Virginia Code, in an attempt to assert
claims against” Defendant, but “fails to draw any
correlation as to how those facts create claims under the
listed law that demonstrate” that Defendant is liable.
(ECF No. 64, at 3). Further, Defendant argued that
“plaintiff's response simply concludes, without any
support or explanation, that his claims are valid an must be
allowed to proceed.” Id.
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court must accept as true all well-pleaded material
factual allegations. Advanced Health-Care Servs., Inc. v.
Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990).
Moreover, the Federal Rules of Civil Procedure
“require[ ] only ‘a short and plain statement of
the claim showing that the pleader is entitled to
relief,' in order 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)).
although a 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.” Twombly,
550 U.S. at 555 (citations omitted). To survive dismissal for
failure to state a claim, the complaint must raise a right to
relief that is more than speculative. Id. In other
words, the complaint must contain allegations that are
“plausible” on their face, rather than merely
“conceivable.” Id. at 555, 570. A
“claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). “A document filed pro
se is ‘to be liberally construed' and ‘a
pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).