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Loved Ones In Home Care, LLC v. Toor

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

June 27, 2019

LOVED ONES IN HOME CARE, LLC, et. al Plaintiffs,
MARK TOOR, Defendant.



         Pending before the court is the defendant's Motion to Dismiss First Amended Complaint [ECF No. 24]. For the following reasons, the Motion is GRANTED.

         I. Introduction .

         This case arises out previous lawsuits filed by the defendant against the plaintiff Loved Ones in Home Care, LLC, (“Loved Ones”). Loved Ones is a defendant in several lawsuits; including a collective action pending before the Honorable John T. Copenhaver Jr., Civil Action No. 2:19-cv-00134, and this court, Civil Action No. 2:18-cv-01334. The First Amended Complaint [ECF No. 23] alleges, inter alia, that the defendant, the plaintiff's attorney in those cases, used threats of litigation by filing “frivolous lawsuits” against the plaintiff in order to extort attorney's fees. Am. Compl. 1 [ECF No. 23]. The Amended Complaint alleges three counts, one federal claim and two state law claims: Count 1, a § 1983 claim; Count 2, defamation; and Count 3, tortious interference with contract relationships. Id.

         For the § 1983 claim, the plaintiff alleges that the defendant, acting under “color of state law, ” filed a number of harassing lawsuits that constituted an effort to deprive the plaintiff Donna Skeen of her civil rights. Id. That is, all of the defendant's “actions taken together demonstrate a pattern and practice showing intent to use the procedural rules of the State court system to extort a far greater amount of money from the Plaintiff than the facts of any actual FLSA case or controversy justifies.” Id. ¶ 16.

         The defendant moved to dismiss under 12(b)(1) and 12(b)(6), arguing that this court lacks subject matter jurisdiction to hear the case because the plaintiffs have failed to state a claim invoking this court's jurisdiction. The defendant argues that because the parties are non-diverse, jurisdiction must vest on federal question. The defendant goes on to argue that because the only federal claim alleged fails as a matter of law, this court lacks supplemental jurisdiction over the state law claims. Therefore, the defendant argues, the Amended Complaint must be dismissed. I agree.

         II. Legal Standard

         a. 12(b)(1)-Lack of Subject Matter Jurisdiction

         Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal when the court lacks jurisdiction over the subject matter of the action. Fed.R.Civ.P. 12(b)(1). In considering a 12(b)(1) motion to dismiss, the burden is on the plaintiff to prove that federal subject matter jurisdiction is proper. See United States v. Hays, 515 U.S. 737, 743 (1995); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). There are two ways in which a defendant may present a 12(b)(1) motion. First, a defendant may attack the complaint on its face when the complaint “fails to allege facts upon which subject matter jurisdiction may be based.” Adams, 697 F.2d at 1219. In such a case, all facts as alleged by the plaintiff are assumed to be true. Id.

         Alternatively, a 12(b)(1) motion to dismiss may attack the existence of subject matter jurisdiction over the case apart from the pleadings. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). In such a case, the trial court's “very power to hear the case” is at issue. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The district court is then free to weigh the evidence to determine the existence of jurisdiction. Adams, 697 F.2d at 1219. “No presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Mortensen, 549 F.2d at 891. Where a complaint invoking federal question jurisdiction “is not colorable, ” it should be dismissed under rule 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006).

         b. 12(b)(6)-Failure to State a Claim

         “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. When reviewing the sufficiency of the complaint, the court must “accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

         III. Discussion

         a. ...

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