United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S MOTION TO DISMISS
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
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.
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. This Court then
entered a first order and notice regarding discovery and
scheduling. ECF No. 4.
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.
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.
reply was filed.
before the Court is defendant Phillips’s motion to
dismiss the plaintiff’s complaint. The motion has been
briefed and is ripe for decision.
Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) for Failure to State a Claim
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).
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.
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.
Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(2) ...