Ross v. Tennessee Commercial Warehouse Inc. et al

Filing 13

ORDER granting in part and denying in part 3 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Frank D. Whitney on 9/18/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00391-FDW-DCK
JERRY LEE ROSS,

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Plaintiff,
vs.
TENNESSEE COMMERCIAL
WAREHOUSE, INC., et. al.,
Defendants.

ORDER

THIS MATTER is before the Court on Defendants’ Partial Motion to Dismiss and
Motion to Strike Plaintiff’s Complaint pursuant to Rules 12(b)(6) and 12(f) of the Federal Rules
of Civil Procedure. Because Plaintiff appears pro se, the Court issued a Roseboro notice (Doc.
No. 7) advising Plaintiff of his right to respond to Defendants’ Motion to Dismiss and Motion to
Strike on or before August 25, 2014. Plaintiff responded in a timely manner. (Doc. No. 8). For
the reasons stated below, Defendants’ Motions are GRANTED in part and DENIED in part.
I.

BACKGROUND

Plaintiff, who appears pro se, filed the instant Complaint in this Court on July 16, 2014
alleging numerous causes of action arising out of the termination of his employment with
Defendant Tennessee Commercial Warehouse, Inc. (“TCW”). (Doc. No. 1 at 1). The Complaint
lists eight defendants; however, as Defendants note in their Motion to Dismiss, only four of these

defendants have been served with the Complaint:

TCW, Cynthia Cutler Moon (“Moon”),

Ronnie Holland (“Holland”), and Scott George (“George”).1 (Id. at 1; Doc. No. 3, p. 1).
According to the Complaint, in July 2013, Plaintiff was employed by Defendant TCW as
a truck driver. (Doc. No. 1, p. 2). Plaintiff alleges that as a result of his reports to TCW’s safety
director, Defendant Ronald Holland, he was assigned longer dispatch “runs” and was the victim
of aggression by Defendants. Id. Plaintiff states that he reported this harassment and was later
put on leave from work while Defendants conducted an investigation on him. Id. at 2-3. The
Complaint further alleges that Plaintiff was dismissed from his job on August 15, 2013. Id. at 3.
In response, Plaintiff filed a complaint with the North Carolina Labor Board, which forwarded
his complaint to the Occupational Safety and Health Administration (“OSHA”). Id. OSHA then
investigated and dismissed the complaint, id. at 3-4, and Plaintiff filed the present action on July
16, 2014.
On August 6, 2014, Defendants TCW, Moon, Holland, and George filed a Partial Motion
to Dismiss and Partial Motion to Strike, requesting the Court to dismiss all claims except for
Plaintiff’s claims for wrongful discharge against Defendant TCW and Plaintiff’s claims for
negligence (including alleged harassment) and negligent misrepresentation against Defendants
TCW, Moon, and Holland. (Doc. No. 4, p. 9). The Partial Motion to Strike requests the Court to
strike specific provisions included in Plaintiff’s Prayer for Relief. (Doc. No. 3, pp. 2-3).
II.

ANALYSIS

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The Court notes Plaintiff’s claim that he mailed eight copies of the Complaint and Summons to TCW by certified
mail. Doc. No. 8, ¶ 1. However, the Court brings to Plaintiff’s attention Rule 4(i)(3) of the Federal Rules of Civil
Procedure (“FRCP”), which provides the procedure by which an individual located in the United States may be
served. The Court notes further that neither the North Carolina Rules of Civil Procedure nor the FRCP allow for
service on an individual by mailing a copy of the Summons and Complaint to the defendant’s employer.
Accordingly, Plaintiff has not effectively served Defendants Derrick Ingram, Jimmy Manson, Tim Smith and “Rob
(the regional supervisor).” Plaintiff is advised that these Defendants must be properly served within 120 days of the
date of filing the Complaint, and failure to properly serve Defendants within this time period will result in the
Complaint being dismissed without prejudice as to these Defendants. See Fed. R. Civ. P. 4(m).

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“Although Plaintiff’s Complaint is not entirely clear, due to [his] pro se status, it must be
read generously.” Keene v. Thompson, 232 F. Supp. 2d 574, 578 (M.D.N.C. 2002). In the
Complaint, Plaintiff appears to assert numerous claims against some or all of Defendants,
including wrongful termination, defamation of character and slander, violation of right to earn a
fair

wage,

lost

wages,

negligence,

gross

negligence,

negligent

hiring,

negligent

misrepresentation, inadvertent negligence, hazardous negligence, professional negligence, legal
negligence, ordinary negligence, abuse of authority, outrageous conduct, verbal abuse, mental
abuse, malicious act, legal malpractice, Labor-Relations Act, Labor-Management Relations Act,
Occupational Safety and Health Act of 1970, harassment, and whistle blowing retaliation. (Doc.
No. 1, p. 1).
A.

Motion to Dismiss
1. Standard of Review
“A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the ‘legal sufficiency of

the complaint’ but ‘does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.’” Clark v. O’Rourke, 2011 WL 1400429, at *2, adopted, WL 1399803
(W.D.N.C. 2011) (quoting Republican Party of N.C. v. Martin, 980 F.2d 942, 952 (4th Cir.
1992); Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000)). In order to survive a 12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted, Plaintiff’s “complaint must contain sufficient factual material, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

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678 (citing Twombly, 550 U.S. at 556). While the Court accepts plausible factual allegations in
the complaint as true and considers those facts in the light most favorable to a plaintiff in ruling
on a motion to dismiss, a court “need not accept as true unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Mkt.’s Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 175, 180 (4th
Cir. 2000).
“The standard for evaluating the sufficiency of the pleading in the instant case is
particularly flexible because ‘[a] document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.’” Moody-Williams v. LipoScience, 953 F. Supp. 2d 677, 689
(E.D.N.C. 2013) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)).
2. Negligence and Gross Negligence
As an initial matter, the Court will construe pro se Plaintiff’s claim of “inadvertent
negligence” as a claim for negligence. (Doc. No. 1, p. 1). Additionally, the Court construes
Defendants’ Motion to Dismiss to seek dismissal of Plaintiff’s claim for gross negligence. (Doc.
No. 4, p. 3). “Gross negligence requires a finding that the conduct is willful, wanton, or done
with reckless indifference.” Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 403 (2001) (citing
Yancey v. Lea, 139 N.C. App. 76, 79 (2000)). In order to state a claim for gross negligence, a
plaintiff must allege “the elements of a gross negligence claim: (1) the defendant owed a duty to
the plaintiff; (2) the defendant breached that duty; (3) the breach was a proximate cause of the
injury; (4) the plaintiff was injured as a result thereof and (5) the defendant’s conduct was
willful, wanton, or done with reckless indifference.” Simpson v. Amylin Pharms., Inc., et al.,
No. 1:11-cv-301, 2012 WL 3240142, at *3 (W.D.N.C. Aug. 7, 2012) (citing Sawyer, 144 N.C.
App. 398, 549 S.E.2d 867 (2001)). “Willful conduct is done with a deliberate purpose. Conduct

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is willful when it is carried out with a wicked purpose or with reckless indifference. Thus, gross
negligence encompasses conduct which lies somewhere between ordinary negligence and
intentional conduct.” Id. (quoting Sawyer, 549 S.E.2d at 879). The North Carolina courts have
found that “the difference between negligence and gross negligence lies in the intentional or
deliberate character of the actions of the defendant that are done purposefully and with the
knowledge that the action is a breach of duty to plaintiff.” Simpson v. Amylin Pharms., Inc., et
al., No. 1:11-cv-301, 2012 WL 3240054, at *2 (W.D.N.C. April 9, 2012) (citing Yancy, 550
S.E.2d at 157).
Construing liberally the Complaint in the light most favorable to Plaintiff, Plaintiff
appears to contend that Defendants owed him a duty to take action on Plaintiff’s safety and
harassment claims and a duty not to place inaccurate information on Plaintiff’s DAC report.
(Doc. No. 1, pp. 2-5). The Complaint appears to further allege that as a result of Defendant
TCW’s breach of these duties, Plaintiff was wrongfully terminated from his employment with
TCW and has been prevented from securing other employment. See id. at pp. 4-5.
As a threshold matter, the action and injury forming the basis of Plaintiff’s claim for
gross negligence—the termination of his employment with TCW for wrongful reasons and the
false reports placed on Plaintiff’s DAC report—amount to intentional acts by Defendants. See
id. at pp. 4-5. Additionally, a liberal reading of the Complaint finds facts sufficient to establish
the other elements of a claim for gross negligence—duty, breach, causation, and damages.
Therefore, the Court finds that the Complaint contains sufficient factual material, which, if true,
support Plaintiff’s claim for gross negligence. Accordingly, Defendants’ Motion to Dismiss
Plaintiff’s claim for gross negligence is DENIED.
3. Negligent Hiring

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“To establish a claim for negligent hiring under North Carolina law, a plaintiff must
show: (1) a specific tortious act by the employee; (2) the employee’s incompetence or unfitness;
(3) the employer’s actual or constructive notice of the employee’s incompetency or unfitness;
and (4) injury resulting from the employee’s incompetence or unfitness.” Johnston v. Leith, Inc.,
No. 5:10-cv-547-FL, 2011 WL 1770434, at *6 (E.D.N.C. May 9, 2011) (citing E.E.O.C. v. TJX
Companies, Inc., 2009 WL 159741, at *10 (E.D.N.C. 2009) (citing White v. Consol. Planning,
Inc., 166 N.C. App. 283, 292, 603 S.E.2d 147, 154 (2004)); Medlin v. Bass, 327 N.C. 587, 591,
398 S.E.2d 460, 462 (1990)).

“The notice element requires that Plaintiff allege that [ ]

Defendants knew or should have known about Defendant[‘s] [ ] dangerous propensities prior to
hiring.” Alexander v. Diversified Ace Services II, AJV, et al., No. 1:11-cv-725, 2014 WL
502496, at *18 (M.D.N.C. Feb. 7, 2014) (citing Medlin, 327 N.C. at 592, 398 S.E.2d at 463
(dismissing plaintiff’s negligent hiring claim because the record was ‘devoid of evidence that
[employer defendants] knew or reasonably could have known of [employee defendant’s] alleged
pedophilic tendencies prior to the incident that is the subject of this lawsuit”); Stanley v. Brooks
& RLK, Inc., 112 N.C. App. 609, 612, 436 S.E.2d 272, 274 (1993) (holding that the forecast of
evidence failed to show that defendant employer knew or should have known of the employee’s
criminal history prior to the incident with plaintiff, where defendant employer had no actual or
constructive knowledge of employee’s criminal past and there was no evidence suggesting that
defendant employer did not exercise due care in hiring the employee)).
Plaintiff has failed to allege any of the elements required to establish a claim for
negligent hiring. Thus, Defendants’ motion to dismiss Plaintiff’s claim for negligent hiring is
therefore GRANTED.
4. Harassment, Whistleblowing and Retaliation

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The Court agrees with Defendant that no independent causes of action exist under North
Carolina law for Plaintiff’s claims of harassment, whistleblowing and retaliation. (Doc. No. 4, p.
3). The Court will construe Defendant’s Motion to request dismissal of these three causes of
action.

Accordingly, Defendants’ motion to dismiss Plaintiff’s claims of harassment,

whistleblowing and retaliation is GRANTED.
5. Violation of Right to Earn Fair Wage, Abuse of Authority, Outrageous
Conduct, Labor-Relations Act, Verbal Abuse, Mental Abuse and Malicious
Act
To the extent that Plaintiff generally alleges claims for violation of the right to earn a fair
wage, abuse of authority, outrageous conduct, Labor-Relations Act, verbal abuse, mental abuse,
or malicious act, the Court finds that there is either no such legal claim or that Plaintiff fails to
state a claim as to any of these actions. Therefore, Defendants’ motion to dismiss these claims is
GRANTED.
6. Occupational Safety and Health Act of 1970
Again, liberally construing pro se Plaintiff’s Complaint, Plaintiff appears to assert a claim
against TCW under the Occupational Safety and Health Act of 1970 by claiming that TCW
placed a false statement on his DAC report. (Doc. No. 1, p. 5). In their Motion to Dismiss,
Defendants correctly assert that the Occupational Safety and Health Act provides no private right
of action. (Doc. No. 4, p. 4). Therefore, Defendants’ motion to dismiss Plaintiff’s claim under
the Occupational Safety and Health Act of 1970 is GRANTED.
7.

Labor-Management Relations Act

As to Plaintiff’s Labor-Management Relations Act (“LMRA”) claim, Plaintiff does not
cite to any specific provision of the LMRA. Further, Plaintiff merely lists “labor-management
relations act” amongst other alleged causes of action and provides no facts or specific allegations

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sufficient to assert a cause of action under the LMRA.

(Doc. No. 1, p. 5).

Therefore,

Defendants’ motion to dismiss Plaintiff’s claim under the LMRA is GRANTED.
8. Legal Negligence and Legal Malpractice
The Court construes Plaintiff’s claim of “legal negligence” along with Plaintiff’s claim of
“legal malpractice.” (Doc. No. 1, p.1). This Court has held that in order “to state a claim for
malpractice, a plaintiff must allege that an attorney breached duties owed to his client and that
this negligence proximately caused damage to the plaintiff.” Ross v. Gordon & Weinberg, P.C.,
No. 3:09-cv-482, 2011 WL 3841549, at *5 (W.D.N.C. Aug. 30, 2011) (citing Wood v.
Hollingsworth, 603 S.E.2d 388, 392 (N.C. App. 2004)). Plaintiff does not allege facts sufficient
to show the existence of an attorney-client relationship with any Defendant giving rise to any
duty to Plaintiff.

Plaintiff therefore fails to state a claim against Defendants for legal

malpractice. See Anderson v. Derrick, No. 1:06-cv-264, 2007 WL 1166041, at *4 (W.D.N.C.
Apr. 12, 2007) (noting that under North Carolina law a claim for legal malpractice is only
available to a client) (citing Fox v. Wilson, 354 S.E.2d 737, 742 (N.C. App. 1987)). Thus,
Defendants’ Motion to dismiss Plaintiff’s claims for legal negligence and legal malpractice is
GRANTED.
9. Defamation and Slander
“In North Carolina, the term defamation applies to the two distinct torts of libel and
slander.” Smith-Price v. Charter Behavioral Health Systems, 164 N.C. App. 349, 356, 595
S.E.2d 778, 783 (2004) (quoting Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568
S.E.2d 893, 898 (2002)). “[T]o state a claim for defamation, a plaintiff must allege that a
defendant injured plaintiff by making false, defamatory statements about plaintiff, which were
published to a third person.” “Generally, to make out a prima facie case for defamation,

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‘plaintiff must allege and prove that the defendant made false, defamatory statements of or
concerning the plaintiff, which were published to a third person, causing injury to the plaintiff’s
reputation.’” Griffin v. Holden, 180 N.C. App. 129, 133, 636 S.E.2d 298, 302 (2006) (quoting
Smith-Price, 164 N.C. App. at 356, 595 S.E.2d at 783) (quoting Tyson v. L’Eggs Prods., Inc., 84
N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987))). “Slander is defined as ‘the speaking of base
or defamatory words which tend to prejudice another in his reputation, office, trade, business, or
means of livelihood.” Id. (quoting Black’s Law Dictionary, 1559 (4th ed. 1968)). “Defamatory
words may be actionable per se, that is, in themselves, or they may be actionable per quod, that
is, only upon allegation and proof of special damage.” Badame v. Lampke, 242 N.C. 755, 756,
89 S.E.2d 466, 467 (1955). “[I]f the injurious character of the spoken statement appears, not on
its face as a matter of general acceptance, but only in consequence of extrinsic, explanatory facts
showing its injurious effect, such utterance is said to be actionable only per quod, and in such
cases the injurious character of the words must be pleaded and proved, and in order to recover
there must be allegation and proof of some special damage.” Id. at 757, 89 S.E.2d at 467-68
(citing Deese v. Collins, 119 N.C. 749, 133 S.E. 92 (1926)). “It is well settled that false words
imputing to a merchant or business man conduct derogatory to his character and standing as a
business and tending to prejudice him in his business are actionable … .” Id. at 757, 89 S.E.2d at
468 (citing Broadway v. Cope, 208 N.C. 85, 179 S.E. 452 (1935)).

Moreover, “[a]mong

statements which are slanderous per se are … defamatory statements about a person with respect
to his trade or profession … .” Ausley v. Bishop, 133 N.C. App. 210, 214, 515 S.E.2d 72, 75-76
(1999) (quoting Gibby v. Murphy, 73 N.C. App. 128, 131, 325 S.E.2d 673, 675 (1985)). When a
statement falls into this category, “a prima facie presumption of malice and a conclusive
presumption of legal injury and damage arise; [and] allegation and proof of special damages are

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not required.” Id. at 214, 515 S.E.2d at 76 (citing Donovan v. Fiumara, 114 N.C. App. 524, 528,
442 S.E.2d 572, 575 (1994)).
Plaintiff’s claims of defamation and slander appear to be based on Plaintiff’s allegations
that Defendants made false statements that were published on Plaintiff’s DAC report. (Doc. No.
1, pp. 5, 17, 18, 20). The Court finds that the Complaint sets forth facts that, if true, demonstrate
that Defendants’ alleged statements were false, were of and concerning Plaintiff, and were
published to a third person. Moreover, Plaintiff also sets forth facts, which if true, show that the
statements have prejudiced him in his profession—namely, that prospective employers have read
and questioned Plaintiff about the alleged defamatory statements included on reports concerning
Plaintiff. (Doc. No. 1, pp. 4, 17). Viewing the Complaint in the light most favorable to Plaintiff,
the allegations supporting Plaintiff’s claims for defamation and slander appear sufficient “to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007).
Additionally, the Court notes that Defendants’ argument concerning the absolute
privilege afforded to information provided in connection to an OSHA or government
investigation is more appropriately raised in a motion for summary judgment. (Doc. No. 4, pp.
5-6). Thus, Defendants’ motion to dismiss Plaintiff’s defamation and slander claims is DENIED.
10. Wrongful Termination
The Court will construe Plaintiff’s claim for “wrongful termination” as a claim for
“wrongful discharge.” Throughout the Complaint, Plaintiff alleges that Defendants wrongfully
terminated him. (Doc. No. 1.)

To the extent that Plaintiff asserts his claim of wrongful

discharge against individual Defendants Moon, Holland, and George, the Court agrees with
Defendants that this claim must be dismissed. (Doc. No. 4, p. 8). The North Carolina courts

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have held “that an action for wrongful discharge will lie only against an employer, and not
against individual employees.” Hooper v. North Carolina, 379 F. Supp. 2d 804, 814 (M.D.N.C.
2005) (citing Sides v. Duke Hosp., 74 N.C. App. 331, 343, 328 S.E.2d 818, 826-27 (1985), disc.
review denied, 314 N.C. 331, 333 S.E.2d 490 (1985)). Accordingly, none of the individual
Defendants are subject to individual liability on Plaintiff’s wrongful discharge claim. Thus,
Defendants’ motion to dismiss Plaintiff’s wrongful discharge claim against Defendants Moon,
Holland, and George is GRANTED.
11. Claims against Defendant Scott George
In the Complaint, Plaintiff names George as a defendant based on Plaintiff’s allegations
of vicarious liability. (Doc. No. 1, p. 6). Plaintiff specifically asserts that “[a]nything that the
employee does in the name of TCW Inc. will reflect on the owner.” Id. However, the Court
notes that “[a]s a general rule an officer of a corporation is not liable for the torts of the
corporation ‘merely by virtue of his office.’” Taft v. Brinley’s Grading Services, Inc., 738
S.E.2d 741, 752 (N.C. Ct. App. 2013) (quoting Wolfe v. Wilmington Shipyard, Inc., 135 N.C.
App. 661, 670, 522 S.E.2d 306, 312-13 (1999) (quoting United Artists Records, Inc. v. Eastern
Tape Corp., 19 N.C. App. 207, 215, 198 S.E.2d 452, 457 (1973))). While “an officer of a
corporation ‘can be held personally liable for torts in which he actively participates,” id. (citing
Wolfe at 670, 522 S.E.2d at 312-13 (quoting Wilson v. McLeod Oil Co., 327 N.C. 491, 518, 398
S.E.2d 586, 600 (1990))), the Complaint includes no allegations of wrongdoing by Defendant
George aside from Plaintiff’s allegation of vicarious liability. Accordingly, because Plaintiff
asserts claims against Defendant George based solely on his liability as an officer of TCW,
Plaintiff has failed to state a claim upon which relief can be granted. Thus, Defendants’ motion
to dismiss Defendant George from this lawsuit is GRANTED.

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B.

Motion to Strike
1. Standard of Review
Under Rule 12(f) of the Federal Rules of Civil Procedure, a court “may strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.”
A motion to strike is timely if made by a party before responding to the pleading. Fed. R. Civ. P.
12(f)(2). Plaintiff filed his Complaint on July 16, 2014. On August 6, 2014, Defendants filed
their Motion to Strike prior to filing their Answer.2 Therefore, Defendants’ motion is timely.
“Although courts have broad discretion in disposing of motions to strike, such motions
‘are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy
and because it is often sought by the movant simply as a dilatory tactic.’” Chapman v. Duke
Energy Carolinas, LLC, No. 3:09-cv-37-RJC, 2009 WL 1652463, at *1 (W.D.N.C. June 11,
2009) (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)
(internal quotation marks and citations omitted in original); Brown v. Inst. for Family Centered
Servs., Inc., 394 F. Supp. 2d 724, 727 (M.D.N.C. 2005)).
2. Discussion
In the Motion to Strike, Defendants seek to strike provisions included in Plaintiff’s Prayer
for Relief. (Doc. No. 3, pp. 2-3). Specifically, Defendants seek to strike portions of Paragraph 1
and all of Paragraphs 2 through 4. (Doc. No. 3, p. 3).
The Court notes that Plaintiff is pro se and reads paragraph 1 of Plaintiff’s Prayer for
Relief as Plaintiff’s attempt to request all forms of potential damages. In the absence of the legal
counsel, Plaintiff is presumably without the knowledge needed to streamline his request for

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The Court notes that in response to Defendants’ failure to file their Answer in accordance with the Standing Order
Governing Civil Case Management Before the Honorable Frank D. Whitney, Misc. No. 3:07-mc-00047 (Doc. No.
2), the Court issued an Order directing Defendants to file an Answer by September 11, 2014. (Doc. No. 10).
Defendants complied with this Order, filing their Answer on September 11, 2014. (Doc. No. 11).

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damages. The Court DENIES Defendants’ request to strike portions of Paragraph 1 of Plaintiff’s
Request for Relief but advises Defendants that this matter may be addressed again in a motion
for summary judgment.
With respect to Defendants’ Motion to Strike Paragraphs 2 through 4 of Plaintiff’s Prayer
for Relief, the Court GRANTS the Motion on the ground that Plaintiff seeks relief that is not
available for the viable causes of action that he has asserted.
III.

CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Partial Motion to Dismiss pursuant to
Rule 12(b)(6) (Doc. No. 3) is GRANTED in part and DENIED in part. Specifically, with respect
to Plaintiff’s claims for negligent hiring, harassment, whistleblowing, retaliation, right to earn a
fair wage, abuse of authority, outrageous conduct, Labor-Relations Act, verbal abuse, mental
abuse, malicious act, Occupational Safety and Health Act, Labor-Management Relations Act,
legal negligence, and legal malpractice, the Motion to Dismiss is GRANTED and those claims
are DISMISSED.

With respect to Plaintiff’s claims for gross negligence, defamation, and

slander, the Motion to Dismiss is DENIED. Additionally, both Defendants’ motion to dismiss
Plaintiff’s wrongful discharge claim against Defendants Moon, Holland, and George and
Defendants’ motion to dismiss Defendant George from this lawsuit are GRANTED.
With respect to Defendants’ Motion to Strike (Doc. No. 3), the Motion is GRANTED in
part and DENIED in part.

Specifically, the Motion to Strike is DENIED with respect to

Defendants’ request to strike portions of Paragraph 1 of Plaintiff’s Prayer for Relief, and the
Motion to Strike is GRANTED with respect to Defendants’ request to strike the entirety of
Paragraphs 2, 3, and 4 of Plaintiff’s Prayer for Relief.
IT IS SO ORDERED.

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Signed: September 18, 2014

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