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Mey v. Castle Law Group, PC

United States District Court, N.D. West Virginia

September 20, 2019

DIANA MEY, Plaintiff,
v.
CASTLE LAW GROUP, PC, a Tennessee corporation, JUDSON PHILLIPS, ESQ., an individual and BRUYETTE AND ASSOCIATES, LLC, a Florida corporation, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         Plaintiff, Diana Mey (“Mey”), by counsel, originally filed her complaint against the above-named defendants in the Circuit Court of Ohio County, West Virginia, alleging violations of the Telephone Consumer Protection Act (“TCPA”) (Count I), violations of the West Virginia Consumer Credit and Protection Act (“WVCCPA”) (Count II), violations of the West Virginia Computer Crime and Abuse Act (“WVCCAA”) (Count III), intentional infliction of emotional distress (Count IV), and violations of the West Virginia Unfair or Deceptive Trade Practices Act (“UTPA”). ECF No. 1-1.

         Defendant Judson Phillips (“Phillips”) was served on May 17, 2019, and filed a pro se notice of removal on May 28, 2019, citing diversity jurisdiction as well as federal question jurisdiction pursuant to plaintiff’s allegations regarding the TCPA. ECF No. 1.[1] This Court then entered a first order and notice regarding discovery and scheduling. ECF No. 4.

         Thereafter, on June 14, 2019, defendant Phillips filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) and for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(2). ECF No. 7. Phillips contends the plaintiff does not allege sufficient contacts to this forum so that this Court may exercise personal jurisdiction over him. Phillips asserts that there is no showing in the plaintiff’s complaint that he has ever transacted business, derived income, or been in West Virginia. Id. at 4. Phillips further argues that plaintiff makes general statements about him in the complaint without any factual allegations of any action by him to claim that he is somehow responsible for the acts of another party. Id. at 6. Phillips contends that the complaint is speculative at best and should be dismissed.

         Mey then filed a response in opposition (ECF No. 9) to defendant’s motion to dismiss. Mey argues Phillips’s motion to dismiss for three reasons. First, plaintiff asserts this Court possesses personal jurisdiction over Phillips and venue is proper because Phillips’s unlawful conduct transpired in this District. Second, plaintiff contends Phillips waived his right to challenge personal jurisdiction and venue because his motion to dismiss was untimely under the Federal Rules of Civil Procedure. Finally, plaintiff maintains that she has adequately alleged facts to state a claim that Phillips is directly and/or vicariously liable for the unlawful communications she received in violation of the TCPA, the WVCCPA, the WVCCAA, the UTPA, and common law.

         No reply was filed.

         Now before the Court is defendant Phillips’s motion to dismiss the plaintiff’s complaint. The motion has been briefed and is ripe for decision.

         II. Applicable Law

         A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) for Failure to State a Claim

         In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009). However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court also declines to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

         It has often been said that the purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court’s inquiry is directed to whether the allegations constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.

         A complaint should be dismissed “if it does not allege ‘enough facts to state a claim to relief that is plausible on is face.’” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial plausibility is established once the factual content of a complaint ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 556 U.S. at 678). Detailed factual allegations are not required, but the facts alleged must be sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         B. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2) ...


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