United States District Court, S.D. West Virginia, Charleston
JIMMIE C. GARDNER, Plaintiff,
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
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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,
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.
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.)
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.
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
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.
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.
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.
Allegations of the Complaint
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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).
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. ¶
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).
“[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.
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.
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.
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.
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.
Motions to Dismiss
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.
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.
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.
Motion to Dismiss Standards
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.”
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).
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
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
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
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.
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).
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).
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 ...