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Gardner v. Kanawha County

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

August 28, 2019

JIMMIE C. GARDNER, Plaintiff,
v.
KANAWHA COUNTY, WEST VIRGINIA; KANAWHA COUNTY COMMISSION; KANAWHA COUNTY PROSECUTING ATTORNEY, in his official capacity; WILLIAM C. FORBES; REAGAN E. WHITMYER; JOHN J. FRAIL; and CHARLESTON POLICE DEPARTMENT, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Pending are two motions to dismiss, one by defendant William C. Forbes filed on December 22, 2017; and one by defendants Kanawha County, West Virginia, Kanawha County Commission (“the County Commission”), Kanawha County Office of Prosecuting Attorney (“Prosecuting Attorney” or “Prosecuting Attorney's Office”), Reagan E. Whitmyer, and John J. Frail (collectively, “Kanawha County Defendants”) filed on January 2, 2018.[1]

         Although listed as separate defendants, the court notes that Kanawha County, West Virginia is not a separate suable entity from the County Commission. Rather, the County Commission is the entity through which the County acts and may be sued. See W.Va. Code Ann. § 7-1-1 (“The county commission . . . of every county within the State of West Virginia shall be a corporation by the name of “The County Commission of .......... County”, . . . by which name it may sue and be sued, plead and be impleaded and contract and be contracted with.”) Moreover, there are no allegations in the complaint which differentiate between the two parties, nor is the issue presented by any of the parties. The court accordingly refers to both parties as “the County Commission, ” and Kanawha County, West Virginia is not deemed a separate party, but is rather dismissed as a duplicative party.

         I. Background

         Jimmie C. Gardner is a citizen of the State of Georgia. (Compl. ¶ 2.) Each of the defendants is either a citizen or entity of the State of West Virginia. (See id. ¶¶ 3-9.) Particularly, Forbes served as the prosecuting attorney for Kanawha County and Whitmyer and Frail served as assistant prosecuting attorneys in Kanawha County. (Id. ¶¶ 6-8.)

         A. Procedural History

         In 1987, three women were attacked in their homes, two in one instance on May 16, and the third on July 24, in the Kanawha City area of Charleston, West Virginia. Gardner v. Ballard, 172 F.Supp.3d 925, 930 (S.D. W.Va. 2016), see Compl. ¶ 76. Police investigated “over one hundred suspects” including Gardner who was a pitcher for the Charleston Wheelers baseball team at the time. Id. “In May 1989, Gardner was indicted and subsequently tried in connection with attacks on two [of the] women.” Id. at 929.

         The salient evidence adduced at trial in the Circuit Court of Kanawha County included the expert testimony of Fred Zain, a serologist and a nonparty to this action who is deceased, and a fingerprint comparison. See id. at 931. The fingerprint evidence had remained uncovered for nearly two years before Gardner's indictment: Gardner provided his fingerprints in August 1987, and investigators did not match Gardner's fingerprints to a print lifted from one of the crime scenes until May 1989. See id. at 931-32. Evidently, investigators had simply “missed [Gardner's] fingerprints” in 1987. Id. at 931 n.7. At any rate, West Virginia State Police Lieutenant David Shumate “testified [at trial that] ‘the latent fingerprint from the vase is a print of the left middle finger of Jimmie Gardner.'” Id. at 932.

         As to one of the May 16th victims, Zain testified that his comparison of Gardner's blood sample with semen recovered from the victim revealed “that [Zain] could neither include nor exclude Gardner as the semen depositor[.]” Id. at 933. As to the victim of the July 24th attack, Zain testified that a comparison showed “that Gardner was included in the 0.18 percent of the population that could have been responsible for the semen[.]” Id. at 935. Zain further testified that a separate suspect -- identified by one of the victims as her attacker --“was totally excluded as a possible semen donor in both cases.” Id.

         On February 1, 1990, the jury convicted Gardner of sexual assault, robbery, felony assault, and breaking and entering stemming from the May 16th attack, but acquitted Gardner of the charges stemming from the July 24th attack. Id. at 929. On March 5, 1990, “Gardner was sentenced to an aggregate indeterminate term of 33 to 110 years in prison, of which he [ultimately] served more than 25 years.” Id. Gardner appealed his conviction, which the Supreme Court of Appeals of West Virginia summarily denied. Id. at 929 n.4. Then, in December 1993, the Supreme Court granted Gardner habeas relief and remanded to the Circuit Court of Kanawha County following the state high court's adoption of an investigative report into the practices of Zain, explained in further detail below. Id. at 929. Gardner's case languished in the circuit court for about twenty-three years despite the Supreme Court, on three occasions, directing that court to grant Gardner a hearing. Id.

         On November 12, 2013, this court excused Gardner's requirement to exhaust state remedies before pursuing federal habeas relief. Gardner v. Plumley, No. 2:12-cv-03386, 2013 U.S. Dist. LEXIS 160870, at *18 (S.D. W.Va. Nov. 12, 2013), see Compl. ¶ 75. Finally, on March 25, 2016, this court granted Gardner's habeas petition, vacated his convictions, and ordered the State of West Virginia either to retry or release Gardner within sixty days, as a result of which he was released. Ballard, 172 F.Supp.3d at 940-41, Compl. ¶¶ 80-84. Now, Gardner brings this action against the defendants.

         B. Allegations of the Complaint

         Zain was employed by the West Virginia State Police (“State Police”), a nonparty to this action, as a serologist until July 1989 when he moved to Texas to continue working in serology. See Compl. ¶¶ 15, 23. “For many years and across dozens of cases, the Kanawha County Prosecuting Attorney's Office used . . . Zain as an expert witness on their cases, as a matter of pattern and practice, despite knowing or recklessly disregarding information that Zain was not properly vetted, lacked appropriate qualifications, and was regularly presenting false testimony in criminal cases[.]” Id. ¶ 15.

         “The West Virginia State Police knew as early as 1985 or earlier that Zain did not have appropriate academic credentials to serve as a serology expert based on correspondence received from the FBI.” Id. ¶ 19. Similarly, since sometime between 1985 and 1989, the Prosecuting Attorney “knew or should have known that Zain did not have appropriate credentials to serve as a serology expert in cases prosecuted by th[e o]ffice.” Id. ¶ 20. Gardner alleges that “[a]t all relevant times, Kanawha County employees and County-sponsored witnesses were not reasonably or adequately hired, retained, trained and/or supervised, including” in all matters pertaining to evidence. See id. ¶ 36.

         Some state troopers lodged complaints against Zain between 1985 and 1989, telling the State Police that Zain “was making improper and unjustified findings in the laboratory.” Id. ¶ 21. In fact, “Zain became the subject of a ‘magic wand' joke -- Troopers would say Zain waved a magic wand because that was the only way he could get the results he obtained.” Id. During that same time period, the Prosecuting Attorney's Office, including Forbes, Whitmyer, and Frail, “knew or should have known that Zain's findings and testimony were not reliable and that he should not be used as a serology expert in cases prosecuted by th[e o]ffice.” Id. ¶ 22.

         After Zain left the State Police in July 1989, “laboratory personnel refused to stand by the results of work Zain had done while with the State Police, ” and Trooper Ted Smith, the Director of the Serology Division, “instructed lab personnel to not automatically accept Zain's work and only testify as to what they felt was supportable.” Id. ¶ 25. Trooper Smith informed his superiors at the State Police of this situation, and he also told “at least one member” of the “Prosecuting Attorney's Office that the State Police were not standing behind Zain's work.” Id. ¶¶ 26, 66.

         Nevertheless, under the direction of the Prosecuting Attorney's Office, Forbes, Whitmyer, and Frail, the Prosecuting Attorney's Office used Zain as an expert witness in criminal cases for many years both before and after Zain had moved to Texas and despite the clear warning signs that Zain was at least unreliable. Id. ¶¶ 6-8, 15-16, 18, 27. After Zain left the State Police, individuals within the Prosecuting Attorney's Office “began complaining that the results from the State Police laboratory were not as good -- i.e., not as incriminating -- as when Zain was there.” Id. ¶ 24.

         Despite the availability of qualified State Police laboratory personnel, the Prosecuting Attorney's Office “pull[ed] evidence from the State Police laboratory and sen[t] it to Zain in Texas for testing, ” even if Zain was otherwise totally disconnected from the case. Id. ¶ 28. More than once, Zain produced “results more favorable for the prosecution” than the State Police laboratory based upon the same evidence. Id. When “[State Police] laboratory personnel refused to testify to Zain's results, . . . [the] Prosecuting Attorney's Office, including Defendants Forbes, Whitmyer and Frail, flew Zain from Texas to West Virginia to testify in certain cases.” Id. ¶ 29.

         The Prosecuting Attorney “is the policymaker and final decision-maker regarding the use of contracted expert witnesses and the policies and procedures for vetting and approving said experts.” Id. ¶ 32. “[W]ith the assistance or knowledge of . . . Forbes, Whitmyer and Frail, ” the Prosecuting Attorney's Office repeatedly engaged Zain as a paid “contractor and vendor” to provide expert witness testimony. Id. ¶¶ 30-31. “By having Zain as an approved contractor, prosecutors were able to repeatedly call upon his services for various cases, ” including in Gardner's case, discussed below. Id. ¶ 30. The Prosecuting Attorney's Office “endorsed” retaining Zain with the knowledge that he provided “‘better' results” when compared to State Police laboratory personnel. Id. ¶ 33. Moreover, the Prosecuting Attorney's Office “knew or should have known of Zain's history of presenting unreliable and fraudulent testimony.” Id.

         Later, in November 1992, the State Police superintendent sent a letter to Forbes “indicating that there were no further problems with Zain [e]vidence or related defendants.” Id. ¶ 35. Although Forbes did not believe the superintendent and related his disbelief to others, “Forbes viewed this letter as a shield that protected him from future scrutiny.” Id. He used the letter as pretext to “decline[] . . . further follow-up on information indicating his office ha[d] been presenting false Zain evidence in many criminal cases including Mr. Gardner's.” Id. “[He] instructed his assistant prosecutors to put a copy of the letter into every criminal file Zain had touched.” Id.

         Regarding the attacks on the three women in 1987, Gardner claims that his fingerprints did not match those at the crime scene, that he did not look like the perpetrator described by one of the victims, and that he had alibis for both incidents. Id. ¶¶ 40, 43, 53. In fact, in a separate proceeding before this court, “[Gardner] contend[ed] that after his trial, he was provided documents indicating the bloody fingerprint evidence was ruled to be inconclusive for a match to him during the investigation of the cases in 1987 and 1988.” Plumley, at *3. Furthermore, the victims did not believe that Gardner was their assailant, or they otherwise could not identify him as such. Compl. ¶ 41, 53. The prosecutors did not turn over all of the records of these “non-identifications and surrounding communications” to Gardner's attorneys, despite possessing them and despite their clear helpfulness to Gardner's defense. Id. ¶ 41.

         Moreover, Gardner alleges that the prosecutors knew that the fingerprint evidence could not sustain a jury verdict, and the match was dubious for a number of reasons: (A) the victim saw the perpetrator touch many objects in her home, but not the vase; (B) Gardner's fingerprints did not match any other fingerprints from the victim's home, “including prints on objects the perpetrator was seen to have handled;” (C) the fingerprint evidence “was not appropriately handled;” (D) “the chains of custody for the fingerprint card, the original source of the print, and photograph of the print were disrupted and unreliable;” (E) there were discrepancies “as to which finger made the print (thumb vs. middle finger) and how many prints were reflected in the evidentiary photograph (one versus two);” and (F) two years' prior, Gardner had been ruled out as a match to the collected fingerprints. Compl. ¶ 43. Gardner alleges that Charleston Police “caus[ed] an inaccurate and unreliable, and possibly even faked and fraudulent, fingerprint record to be created” and lacked the “training, supervision and expertise to handle the eviden[ce.]” Id. ¶ 44.

         Nevertheless, “based upon the . . . fingerprint and serology evidence, ” the Prosecuting Attorney's Office, Forbes, Whitmyer, and Frail indicted Gardner on nine counts related to the 1987 attacks. Id. ¶¶ 46-47. Gardner claims that, “[a]t the time, the [d]efendants knew or should have known that the evidence was unreliable, would not establish probable cause if truthfully presented to a judge, and could not sustain a conviction if truthfully presented to a jury.” Id. ¶ 46.

         Gardner alleges that “Zain's [trial] testimony . . . was materially incorrect because it falsely included Mr. Gardner within the population of potential suspects and falsely excluded the key alternate suspect from that population.” Id. ¶ 49. Further, Gardner claims that Zain's testimony was at least facially inconsistent: on the one hand, Zain suggested that Gardner could not be excluded as the perpetrator because the serological sample was too small to be sourced to Gardner or the victim; on the other hand, the sample size was apparently sufficient for Zain to exclude the alternate suspect and “conclude[] that the biological matter came from the perpetrator.” Id. ¶ 50. Gardner asserts that the Prosecuting Attorney's Office, Forbes, Whitmyer, and Frail “knew or should have known about the discrepancies and falsehoods in Zain's testimony, yet they allowed that false testimony to remain uncorrected, if not actively suborned, and they emphasized the importance of that testimony in closing arguments.” Id. ¶ 51. In addition, Gardner alleges that those defendants “did not disclose the negative information about Zain's background and faulty performance to defense counsel at the time of trial, even though it would have been helpful -- and indeed crucial -- to Mr. Gardner's defense.” Id. ¶ 67 (emphasis omitted).

         In 1993, while Gardner was incarcerated, the Supreme Court of West Virginia completed an investigation into Zain, “spurred by an exoneration in an unrelated case.” Id. ¶ 57. The investigation “revealed that Zain had regularly falsified his data and testimony in as many as 134 criminal cases, ” many of which were prosecuted by the Prosecuting Attorney. Id. ¶ 57.

         The Supreme Court issued an opinion on the matter, In re Investigation of W.Va. State Police Crime Lab (Zain I), 438 S.E.2d 501 ( W.Va. 1993), concluding that “Zain had a ‘long history of falsifying evidence in criminal prosecutions;'” “that ‘Zain's pattern and practice of misconduct completely undermined the validity and reliability of any forensic work he performed or reported;'” and “that the matters before the Court ‘are shocking and represent egregious violations of the right of a defendant to a fair trial[, ] . . . [and] stain our judicial system and mock the ideal of justice under law.'” Compl. ¶¶ 58-60 (quoting Zain I, 438 S.E.2d at 503-04, 508). Thus, “the [high court] ordered that special post-conviction consideration should be given to all affected defendants.” Id. ¶ 61 (citing Zain I, 438 S.E.2d at 505). The Supreme Court of Appeals instructed that “each defendant in a case involving Zain evidence should be allowed to seek State habeas relief, and that the question in each case was whether the remaining evidence, independent of the Zain evidence, would have been sufficient to support the verdict.” Id. ¶ 62 (citing Zain I, 438 S.E.2d at 506).

         Furthermore, “[t]he [high court] directed prosecutors to investigate Zain for violations of criminal law, ” which ultimately failed as a result of delay, a mistrial, and Zain's death in 2002. Id. ¶¶ 63-64 (citing Zain I, 438 S.E.2d at 508). One of the criminal counts against Zain stemmed from the testimony that he offered in Gardner's case. Id. ¶ 64. Additionally, a separate investigation revealed “that Zain did not have an appropriate or reliable academic background for the positions he held.” Id. ¶ 65.

         As earlier noted, the West Virginia Supreme Court of Appeals granted Gardner's Petition for a Writ of Habeas Corpus following the issuance of Zain I and remanded his case for further proceedings, including a full evidentiary hearing. Ballard, 172 F.Supp.3d at 929, Compl. ¶ 71. Gardner notes that after an April 21, 1995 motion for an order for DNA testing, an “outside laboratory” found that the “bodily fluids at the crime scenes were consistent with Gardner's DNA.” Compl. ¶ 72. Despite alleged “previous findings that the donor of the fluid samples had a different blood type than Mr. Gardner, ” no explanation of the discrepancy nor of the origination of the sample was provided. Id. (emphasis omitted). At some point in 1995, Gardner claims that “then-[State Police] Public Safety Director Ted Smith presented newly discovered documentation to Mr. Gardner's attorney” comprised of “raw data sheets compiled by three other State Police serologists -- T.A. Smith, J.A. Bowles, and H.B. Myers -- that conclusively excluded Mr. Gardner based on his blood type alone.” Id. ¶ 52.

         The Supreme Court of Appeals directed a full hearing on Gardner's case at least three times -- “March 1, 1995, July 2, 2002, and November 29, 2005” -- but none were ever conducted. Id. ¶ 73. Gardner alleges that “part of this delay was due to acts and omissions of the County Prosecuting Attorney's Office.” Id. ¶ 74. As earlier noted, this court on November 12, 2013, excused Gardner's requirement to exhaust state remedies before pursuing federal habeas relief, Plumley, at *18, and on March 25, 2016, granted him federal habeas relief, vacated his convictions, and ordered the State to retry or release him within sixty days, Ballard, 172 F.Supp.3d at 940-41.

         The Prosecuting Attorney's Office “announced that Mr. Gardner would still face retrial for the charges . . . despite [allegedly] knowing that the available evidence was insufficient to support a conviction.” Compl. ¶ 81. During pretrial proceedings in 2016, Gardner produced Dr. Theodore D. Kessis, Ph.D., “a serologist and DNA expert witness.” Id. ¶ 82. “Dr. Kessis testified . . . that the evidence alleged by Zain to be inculpatory actually exculpated Mr. Gardner.” Id. Further, Dr. Kessis testified “that an additional DNA test, performed in 1996 and purporting to include Mr. Gardner's characteristics among samples taken from both victims, was wholly unreliable and inaccurate.” Id. The prosecution did not relent until September 7, 2016, five days before trial, when the Prosecuting Attorney's Office determined that it had insufficient evidence and dismissed all charges. Id. ¶¶ 82-84.

         Gardner filed suit in this court on September 6, 2017, invoking the court's federal question and diversity jurisdiction. Id. ¶¶ 10-11. He advances five counts against the defendants for their various roles in his investigation, prosecution, conviction, incarceration, exoneration, and re-prosecution. Those counts are deprivation of rights under 42 U.S.C. § 1983 (Count I); malicious prosecution and abuse of process (Count II); unjust conviction and imprisonment under common law (Count III); negligent hiring, retention, and supervision (Count IV); and intentional infliction of emotional distress (Count V). He seeks, inter alia, at least $25 million in damages, punitive damages, attorneys' fees, and interest. Id. WHEREFORE Clause; see also id. ¶¶ 85-98.

         C. Motions to Dismiss

         Defendant Forbes seeks dismissal of all five counts. He contends that (1) absolute prosecutorial immunity shields him from each of Gardner's claims; (2) West Virginia common law lacks claims for unjust conviction and imprisonment, Gardner's Count III; and (3) the applicable statutes of limitations bar Counts II through V. See generally Forbes Mem. Supp. In reply, Forbes also raises for the first time the defense of qualified immunity. See Forbes Reply 7-8.

         Defendants the County Commission, the Prosecuting Attorney's Office, Whitmyer, and Frail (together, “Kanawha County Defendants”), in their joint motion to dismiss, seek dismissal of all five counts as well. Those defendants insist that (1) absolute prosecutorial immunity shields them from each of Gardner's claims; (2) Gardner fails to plead a “policy or custom” sufficient to sustain his Count I § 1983 action against a municipal entity; (3) the Gov't Tort Reform Act shields them from liability for Counts II through V; (4) the applicable statutes of limitations bar Counts II through V; and (5) Gardner failed to join the necessary and indispensable parties of the State Police and the Division of Public Safety, warranting dismissal of all counts pursuant to Federal Rule of Civil Procedure 12(b)(7). See Kanawha County Defs. Mem. Supp.

         On February 12, 2018, the court ordered a stay of all discovery in this action due to the immunity defenses raised in the motions to dismiss. See ECF #47. Those motions are now ripe for disposition.

         II. Motion to Dismiss Standards

         A. Rule 12(b)(6)

         Federal Rule of Civil Procedure 8(a)(2) requires that a pleading “contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Correspondingly, Rule 12(b)(6) provides that a pleading may be dismissed for a “failure to state a claim upon which relief can be granted.”

         To survive a motion to dismiss, a pleading must recite “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)). In other words, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”); Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555).

         “In resolving a motion pursuant to Rule 12(b)(6)[, ] a district court cannot consider matters outside the pleadings without converting the motion into one for summary judgment.” Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (citing Fed.R.Civ.P. 12(d)). That rule is not, however, absolute. As this court has explained,

in reviewing a Rule 12(b)(6) motion, the court “may properly take judicial notice of matters of public record” without converting the motion to one for summary judgment. Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citations omitted). The court may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, “so long as they are integral to the complaint and authentic.” Id. (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).

Corbett v. Duerring, 780 F.Supp.2d 486, 492 (S.D. W.Va. 2011) (Copenhaver, Jr., J.). A matter of public record includes “publicly-recorded papers from prior court proceedings.” Clark v. BASF Salaried Emp.'s Pension Plan, 329 F.Supp.2d 694, 697 (W.D. N.C. 2004) (quoting Happel v. Wal-Mart Stores, Inc., 286 F.Supp.2d 943, 945 (N.D. Ill. 2003)); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2018) (“Numerous cases . . . have allowed consideration of matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned; these items may be considered by the district judge without converting the motion into one for summary judgment.”).

         A district court's evaluation of a motion to dismiss is underlain by two principles. First, the court “must accept as true all of the factual allegations contained in the [pleading].” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” (citations omitted)). In doing so, factual allegations should be distinguished from “mere conclusory statements, ” which are not to be regarded as true. Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Second, the court must “draw[] all reasonable factual inferences . . . in the [nonmovant's] favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); see also Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (“[T]he complaint is to be liberally construed in favor of plaintiff.”).

         A defendant has the burden to establish an affirmative defense, such as the statute of limitations or immunity. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc).

It follows, therefore, that a motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense . . . . But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense “clearly appear[] on the face of the complaint.” Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (emphasis added).

Id.; see also Jones v. Bock, 549 U.S. 199, 215 (2007); Occupy Columbia, 738 F.3d at 116.

         B. Rule 12(b)(7)

         Federal Rule of Civil Procedure 12(b)(7) permits a court to dismiss an action for “failure to join a party under Rule 19.” Rule 19 governs “whether a party is ‘necessary' and ‘indispensable'” to an action. Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 433 (4th Cir. 2014) (citing Fed.R.Civ.P. 19).

         The moving party bears the burden of proof under Rule 12(b)(7). Am. Gen. Life & Accident Ins. v. Wood, 429 F.3d 83, 92 (4th Cir. 2005) (citing 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1609 (3d ed. 2001)). Mirroring the review of a 12(b)(6) motion to dismiss, the “court must accept all factual allegations in the complaint as true and draw inferences in favor of the non-moving party.” 5C Federal Practice and Procedure, supra, § 1359 (3d ed. 2018).

         “Dismissal of a case is a drastic remedy, . . . which should be employed only sparingly.” Teamsters Local Union No. 171 v. Keal Driveway Co., 173 F.3d 915, 918 (4th Cir. 1999). Indeed, “[c]ourts are loath to dismiss cases based on nonjoinder of a party, so dismissal will be ordered only when the resulting defect cannot be remedied and prejudice or inefficiency will certainly result.” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 441 (4th Cir. 1999). The court's decision must be pragmatic, with an eye to the particular circumstances of the instant case, including consideration of the allegedly necessary parties not presently joined. Id.; Teamsters Local Union No. 171, 173 F.3d at 918 ...


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