United States District Court, S.D. West Virginia, Charleston Division
LOVED ONES IN HOME CARE, LLC, et. al Plaintiffs,
MARK TOOR, Defendant.
MEMORANDUM OPINION AND ORDER
R. GOODWIN /UNITED STATES DISTRICT JUDGE.
before the court is the defendant's Motion to Dismiss
First Amended Complaint [ECF No. 24]. For the following
reasons, the Motion is GRANTED.
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.
§ 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.
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.
12(b)(1)-Lack of Subject Matter Jurisdiction
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.
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).
12(b)(6)-Failure to State a Claim
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).