United States District Court, N.D. West Virginia, Wheeling
ORDER DISMISSING COMPLAINT
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
before this Court is defendant's Motion to Dismiss [Doc.
4]. In its motion, the defendant asserts that the plaintiff
did not properly perfect its mechanic's lien on the
subject property in that it did not timely serve notice upon
the owner as required by West Virginia law.
Two of the Complaint for Enforcement of Mechanic's Lien
[Doc. 1] seeks to enforce a mechanic's lien on property
owned by the defendant. According to the plaintiff, it ceased
providing equipment to the project on or about October 31,
2018. On February 22, 2019, or 114 days later, the plaintiff
caused to be recorded in the Office of the Clerk of Wetzel
County, West Virginia, a Notice of Mechanic's Lien
against Columbia's property.
to West Virginia Code § 38-2-11, the plaintiff was
required to record the notice and to provide
notice to the owner “by any of the methods provided by
law for the service of a legal notice or summons, ”
within one hundred days of the cessation of work on the
project. In this case, the plaintiff accomplished neither
within the 100 day period. This flaw is fatal to
plaintiff's mechanic's lien claim.
consequence for failing to “perfect and preserve”
a mechanic's lien is re-iterated in (s) 14:
The failure of any person claiming a lien under this article
to give such notice as is required . . . in the manner and
within the time specified in such sections, or the failure of
any such claimant of any such lien to comply substantially
with all of the requirements of this article for the
perfecting and preservation of such lien, within the time
provided therefor in this article, shall, except as provided
in section twenty of this article, operate as a complete
discharge of such owner and of such property from all liens
for claims and charges of any such . . . subcontractor . . .
for any work claimed to have been performed and for any
materials, machinery or other necessary equipment claimed to
have been furnished in connection with such work.
W.Va. Code § 38-2-14.
Virginia “[m]echanic's lien statutes must be
strictly construed with reference to those requirements upon
which the right depends and liberally construed with
reference to the manner in which the right is
perfected.” Syl. Pt. 3, Badger Lumber Co. v.
Redd, 213 W.Va. 453, 583 S.E.2d 76 (2003) (quoting Syl.
Pt. 1, Earp v. Vanderpool, 160 W.Va. 113, 232 S.E.2d
of a lien is required when a party misses the deadline for
providing notice by even as little as one day. In Means
v. Kidd, 136 W.Va. 514, 67 S.E.2d 740 (1951), the Court
affirmed the dismissal (by demurrer) of a mechanic's lien
lawsuit where a materialman miscalculated by one day the
statutory deadline to give a notice of mechanic's lien to
the property owner. The deadline, then sixty days, passed on
Sunday, November 2, 1949, but notice was not given until
Monday, November 3, 1949. In Syllabus Point 2, the Court
held, “When the notice . . . is not given to such owner
until the next day after the last day of the sixty day
period, and the last day of such period is a legal holiday,
but not a Sunday, the failure to give such notice on or
before the last day of the sixty day period renders it void
and of no force or effect, terminates the right of such
person to perfect and preserve such lien, and discharges the
owner and the property from the lien claimed by such
person.” Syl. Pt. 2, Means, supra.
See also, Fisher v. Reamer, 146 W.Va. 83, 92-93, 118
S.E.2d 76, 81 (1961) (citing Means, supra).
Amick v. C & T Development Co., the
claimant's mechanic's lien was recorded just five
days late, ninety-five days after completion of work on the
project. The Court explained:
The record of the present case shows that Michael Vandal last
performed work in conjunction with the present matter on May
12, 1989, and that he did not file a notice of his lien until
August 16, 1989, more than ninety days after the work was
performed. Given this fact, given the language of W.Va. Code,
38-2-32, and given the holding in the Sturgill case,
this Court believes that the failure of Michael Vandal to
file the appropriate notice of his lien within the time
provided by law resulted in a discharge of that lien and
that, under the circumstances, the appellant is correct in
asserting that the trial court erred . . ..
Amick v. C & T Dev. Co., 187 W.Va. 115, 119, 416
S.E.2d 73, 77 (1992).
opposition to the motion to dismiss, the plaintiff now takes
the position that the last day it provided equipment to the
project was November 28, 2018, rather than October 31. This
change of facts was stated in the plaintiff's brief in
opposition to the motion to dismiss [Doc. 6], which is not a
pleading. As such, this Court is compelled to disregard the
factual content of the brief, since the motion before the
Court challenges the sufficiency of the pleadings. See
Davis v. Cole, 999 F.Supp. 809, 813 (E.D. Va. 1998);
Foster v. Fisher, 2016 WL 900654, *7 (W.D. N.C.
March 9, 2016) (Reideinger, J.). See also Rossman v.
Lazarus, 2008 WL 4181195, *10 (E.D. Va. Sept. 3, 2008)
(Cacheris, J.) (“[I]t is ‘axiomatic that a
complaint may not be amended by the briefs in opposition to a
motion to dismiss'”) citing Katz v. Odin,
Feldman & Pittleman, PC, 332 F.Supp.2d 909, 917 n. 9
(E.D. Va. 2004).
this Court were to countenance the provision of the new date,
the provision of the notice to Columbia was untimely. From
November 28, 2018 to March 12, 2019, is 104 days. For the