Guan v. Ran et al

Filing 60

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 7/6/2017. (dest, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

FEI GUAN,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BING RAN, et al.,
Defendants.

1:17cv332 (JCC/IDD)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant Bing Ran’s
(“Defendant Ran” or “Ran”), Defendant Alice Guan’s (“Defendant
Guan” or “Guan”), Defendant Advanced Systems Technology and
Management, Inc.’s (“AdSTM”), and Defendant Qi Tech, LLC’s (“Qi
Tech”) (collectively, the “Defendants”) motions to dismiss for
failure to state a claim under which relief can be granted.
[Dkts. 38, 40, 44, 46, 47.]

For the following reasons, the Court

will grant Defendants’ motion to dismiss Counts I-III.

The Court

will also grant Defendants’ motion to dismiss Count V due to its
failure to satisfy Article III’s case or controversy requirement.
Finally, the Court will decline to exercise supplemental
jurisdiction over Count IV.
I.

Background

Fei Guan (“Plaintiff”) brings this lawsuit against
Defendants for claims arising under the Victims of Trafficking and
1

Violence Protection Act of 2003 (“TVPA” or the “Act”), 18 U.S.C. §
1581 et seq., and Virginia common law.

All of Plaintiff’s claims

result from payments he sent to Defendant Ran from 2008 until
2014.

The following facts are taken from Plaintiff’s Amended

Complaint and, for the purposes of this motion, are presumed true.
Defendant AdSTM is an engineering and consulting firm
that is headquartered in Northern Virginia.

Am. Compl., ¶ 5.

Defendant Guan, Plaintiff’s sister, founded AdSTM in 1996.
3.

Id., ¶

In 2000, Defendant Ran—Defendant Guan’s then-husband—began

assisting her in running the company.

Id., ¶¶ 3-4.

Though the

two are now divorced, Defendant Guan and Defendant Ran still
jointly manage AdSTM today.

Id., ¶ 5.

In early 2008, while Plaintiff was living in Japan, 1
Defendant Guan offered Plaintiff a job with AdSTM as an analyst.
Am. Compl., ¶ 20.

Plaintiff alleges that Defendant Guan verbally

represented that his annual salary would be between $70,000 and
$80,000, id., ¶ 22, although the actual salary field on his
February 2008 offer letter was left blank, id., ¶ 21.

AdSTM also

offered to sponsor Plaintiff’s H-1B temporary work visa, so he
accepted the job.

Id., ¶¶ 24, 28-29.

After obtaining the advice

of an immigration attorney, Defendant Guan submitted Plaintiff’s
visa paperwork in April 2008.

Id., ¶ 29.

1

Plaintiff's visa

Plaintiff was born in China and is now a lawful permanent resident of the
United States. Am . Compl., ¶ 1. He resides in Virginia. Id.

2

application was subsequently approved.

He moved to the United

States with his family in late September 2008, 2 id., ¶ 31, and
began working at AdSTM in early October, id., ¶ 94.
Plaintiff’s allegations center on two different
agreements.

First, Plaintiff focuses on a Parenting, Support, and

Property Settlement Agreement (the “PSA”) negotiated between
Defendants Guan and Ran during their divorce.
69.

Am. Compl., ¶¶ 45-

The PSA set forth various terms regarding the management and

ownership of AdSTM.

Id., ¶ 46.

On or about June 10, 2008,

Defendants Guan and Ran agreed upon an amendment to the PSA (the
“June 2008 Amendment”), which provided in part for the continued
employment of Plaintiff at AdSTM, based upon the following terms:
As long as AdSTM has revenue of not less than $3M/year,
Bing Ran and AdSTM shall employ . . . Fei Guan
continuously for 5 years . . . and proactively sponsor
[his] H-1 and Green Card processes. [His] salary will
be $75K/year. [He] will give Bing Ran half of [his] net
income from AdSTM.
Id., ¶ 51.

The June 2008 Amendment also provided that if

Plaintiff refused or failed to make any payments after being
reminded to do so, AdSTM would “have no obligation to pay and
hire” him.

Id.

Plaintiff alleges that he had no knowledge of the

terms of this agreement prior to his arrival to the United States.
Id., ¶¶ 52-53.
2

Plaintiff rented a house from Defendant Guan for $1300 per month. Am. Compl.,
¶ 35. In September 2009, Defendant Guan also began charging Plaintiff for
utilities. Id., ¶ 36. Plaintiff and his family resided at this home until June
2012. Id., ¶ 37. Plaintiff alleges that he paid Defendant Guan nearly $60,000
in rent (not including utilities). Id., ¶ 120.

3

Several months later, after Plaintiff had already moved
to the United States and started working at AdSTM, Defendants Guan
and Ran amended the PSA a second time (the “October 2008
Amendment”).

Am. Compl., ¶ 56.

The October 2008 Amendment

adjusted his term of employment at AdSTM from five years to
approximately three years.

Id., ¶ 58.

The requirement that

Plaintiff pay half of his net income each month to Defendant Ran
remained the same.

Id.

Plaintiff again alleges that he had no

knowledge of the terms of this agreement at the time that it was
executed.

Id., ¶¶ 62-65.
Prior to Plaintiff’s first day of work in early October

2008, Plaintiff alleges that Defendant Guan informed him that he
would be required to pay half of his monthly net income to
Defendant Ran.

Am. Compl., ¶ 70.

Plaintiff also alleges that

Defendant Guan told him that if he failed to make these payments,
his employment would be terminated and he would have no choice but
to leave the United States.

Id., ¶ 71.

Plaintiff accepted this

arrangement based upon an alleged fear of his and his family’s
immigration statuses.

Id., ¶¶ 76-77.

Beginning in October 2008 until August 2014, Plaintiff
sent a check for one-half of his net income to Defendant Ran each
month, totaling approximately $160,000.
118-19.

Am. Compl., ¶¶ 97-98,

In early September 2014, Plaintiff alleges that Defendant

Ran told Plaintiff he could stop sending these monthly payments.
4

Id., ¶ 122.

Two months later, Defendant Ran asked Plaintiff to

execute a legal agreement indicating that the payments Plaintiff
had made to Defendant Ran were related to personal loans.
123.

Id., ¶

Plaintiff alleges that Defendant Ran had never previously

described these payments as loans.

Id., ¶ 124.

Furthermore, the

agreement Defendant Ran wanted Plaintiff to sign did not describe
them as loans.
issue.

Id., ¶ 127.

Eventually, Defendant Ran dropped the

Id., ¶ 128.
Plaintiff’s allegations also involve a second agreement:

an “Employee Proprietary Information and Non-Compete Agreement”
(the “Non-Compete Agreement”).

Plaintiff alleges that this

agreement prevented him from discussing his compensation with
anyone but his direct supervisor (Defendant Guan) or higher
officers at AdSTM (at the time, Defendant Ran, who was CEO),
submitting his resume to any potential employers who directly
competed against AdSTM’s products and services, and working for
any person or entity who had previously paid AdSTM for services
and with whom Plaintiff had any dealing while employed at AdSTM.
Id., ¶¶ 39, 41-42, 88-89.

It also provided for a permanent

injunction in the event of any breach or threatened breach.
¶ 40.

Id.,

Plaintiff argues that, as a direct result of this Non-

Compete Agreement, he was prevented from seeking another H-1B visa
sponsor.

Id., ¶ 80.

5

While employed at AdSTM, Plaintiff alleges that he also
performed work for another company, Qi Tech.

Am. Compl., ¶ 147.

Qi Tech had entered into numerous Mentor/Protégé Agreements with
AdSTM for the provision of management and support services.
¶ 148.

Id.,

Plaintiff alleges that, under Defendant Ran’s direction,

he was required to perform work for Qi Tech from October 2010
until August 2014.

Id., ¶ 151.

Plaintiff acknowledges that he

was paid a bonus from Qi Tech in 2011, as well as numerous other
bonuses from AdSTM.

Id., ¶¶ 131-32.

In or around October 2013,

Plaintiff asked Defendant Ran to stop providing him these bonuses
and, in exchange, Plaintiff would no longer have to send Defendant
Ran half of his monthly income.

Id., ¶ 138.

allegedly declined Plaintiff’s offer.

Defendant Ran

Id., ¶ 139.

In total,

Plaintiff received approximately $79,000 in bonuses from October
2010 until September 2014.

Id., ¶ 144.

Plaintiff also admits

that he was reimbursed for certain expenses he incurred on behalf
of Qi Tech.

Id., ¶ 152.

Plaintiff filed the instant case on March 24, 2017.
[Dkt. 1.]

The Amended Complaint alleges five different counts,

including: (1) peonage, in violation of the TVPA, against
Defendants Guan, Ran, and AdSTM; (2) benefitting financially from
peonage, slavery, and trafficking in persons, in violation of the
TVPA, against all Defendants; (3) trafficking, in violation of the
TVPA, against Defendants Guan, Ran, and AdSTM; (4) unjust
6

enrichment against Defendants Guan and Ran; and (5) a request for
a declaratory judgment to void Plaintiff’s Non-Compete Agreement
against AdSTM.

[Dkt. 33.]

Oral argument was held on June 29, 2017.

Having been

fully briefed and argued, these motions are now ripe for
disposition.
II.

Legal Standard

“A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”

Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).

The Supreme

Court has stated that in order “[t]o survive a motion to dismiss,
a [c]omplaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial

plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that requires
the reviewing court to draw on its judicial experience and common
sense.”

Iqbal, 556 U.S. at 679 (citations omitted). While legal
7

conclusions can provide the framework for a complaint, all claims
must be supported by factual allegations. Id.

Based upon these

allegations, the court must determine whether the plaintiff’s
pleadings plausibly give rise to an entitlement to relief.

Id.

Legal conclusions couched as factual allegations are not
sufficient, Twombly, 550 U.S. at 555, nor are “unwarranted
inferences, unreasonable conclusions, or arguments,” E. Shore
Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th
Cir. 2000).

The plaintiff, however, does not have to show a

likelihood of success; rather, the complaint must merely allege directly or indirectly - each element of a “viable legal theory.”
Twombly, 550 U.S. at 562-63.
At the motion to dismiss stage, the court must construe
the complaint in the light most favorable to the plaintiff, read
the complaint as a whole, and take the facts asserted therein as
true.

Iqbal, 556 U.S. at 678.

Generally, a district court does

not consider extrinsic materials when evaluating a complaint under
Rule 12(b)(6).

It may, however, consider “documents incorporated

into the complaint by reference.”

Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007); see also Blankenship v.
Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006).

In addition, the

court may consider documents attached to the defendant’s motion to
dismiss if those documents are central to the plaintiff’s claim or
are “sufficiently referred to in the complaint,” so long as the
8

plaintiff does not challenge their authenticity.

Witthohn v. Fed.

Ins. Co., 164 F. App’x 395, 396–97 (4th Cir. 2006).
Finally, Plaintiff’s theory of the case must not only
pass the test of Twombly and Iqbal, but also must be strictly
construed.

See Crandon v. United States, 494 U.S. 152, 158 (1990)

(applying the rule of lenity where the governing standard in a
civil case is embedded in a criminal statute); Fed. Communications
Comm’n v. Am. Broad. Corp., 347 U.S. 284, 296 (1954) (noting that
criminal statutes must be strictly construed, even when they are
applied in civil cases).
III. Analysis
Plaintiff's claims under the TVPA fall into two
categories: (1) Plaintiff's claim that he was “held to” a
condition of peonage in violation of Section 1581(a) (First Claim
for Relief); and (2) Plaintiff's claims alleging that Defendants
benefitted financially from peonage or trafficking under 18 U.S.C
§ 1593A (Second Claim for Relief) and committed trafficking
under 18 U.S.C. § 1590 (Third Claim for Relief), both of which
depend upon Defendants' alleged violations under Sections 1581(a).
Plaintiff also includes a request for declaratory relief regarding
his Non-Compete Agreement with AdSTM and a state law claim for
unjust enrichment.
claims in turn.

The Court will address each of Plaintiff’s

Additionally, the Court will also address

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Plaintiff’s request for leave to amend his Complaint for a third
time.
A.

[See Dkts. 51-54.]

Plaintiff’s Claim Alleging a Condition of Peonage Under
Section 1581(a) of the TVPA
Plaintiff’s first claim in the Amended Complaint is an

allegation that he was “held to” a condition of peonage by
Defendants Guan, Ran, and AdSTM.

The Supreme Court has defined

“peonage” as “a status or condition of compulsory service, based
upon the indebtedness of the peon to the master.
is indebtedness.”
(1905).

The basal fact

Clyatt v. United States, 197 U.S. 207, 215

The TVPA provides a civil remedy for victims of peonage,

stating in relevant part: “Whoever holds . . . any person to a
condition of peonage . . . shall be fined under this title or
imprisoned not more than 20 years, or both.”

18 U.S.C. § 1581(a).

Defendant AdSTM argues that the alleged misconduct in
the Amended Complaint took place prior to Congress providing a
civil remedy for peonage via the TVPA.
of Mot. to Dimiss [Dkt. 49] at 13.

Def. AdSTM’s Mem. in Supp.

AdSTM points out that Congress

first provided a civil remedy to victims of trafficking in 2003,
but this remedy was limited to claims involving forced labor;
trafficking with respect to peonage, slavery, forced labor, or
involuntary servitude; and sex trafficking.
No. 108-193, § 4(a)(4)(A) (2003)).

Id. (citing Pub. L.

It was not until December 23,

2008, that Congress expanded the TVPA’s civil remedy provision to

10

all violations of any section of Chapter 77, including Plaintiff’s
peonage claims in the instant case.
457 (2008)).

Id. (citing Pub. L. No. 110-

Because Plaintiff made his first payment to

Defendant Ran in October 2008, Defendant argues that the nucleus
of facts giving rise to his allegations predates the December 2008
civil remedy expansion.
retroactive.
dismissed.

Id.

Id.

Furthermore, the TVPA is not

Thus, Defendant argues that Count I should be

Id.
In addition, Defendant AdSTM contends that the Amended

Complaint fails to allege the requisite indebtedness, real or
otherwise.

Def. AdSTM’s Mem. in Supp. of Mot. to Dismiss at 13.

In fact, AdSTM asserts that Plaintiff’s Amended Complaint goes to
great lengths to avoid describing his payments to Defendant Ran as
a debt of any kind.

Id.

Finally, Defendant AdSTM argues that the Amended
Complaint fails to establish that Plaintiff was forced to work for
AdSTM against his will.
Dismiss at 8.

Def. AdSTM’s Mem. in Supp. of Mot. to

In support of this argument, AdSTM contends that

the Amended Complaint alleges only that Defendant Guan warned
Plaintiff that if he stopped making payments to Defendant Ran, his
employment at AdSTM would be terminated and he would lose his H-1B
visa status.

Id. at 9.

Although Plaintiff argues that this alone

made him feel as if he had no other options, AdSTM asserts that
Plaintiff could have pursued a new sponsoring employer for his H11

1B visa at any time.

Id.

Moreover, AdSTM points out that the

TVPA was not intended to prohibit employers from acknowledging
legitimate consequences that could arise from an employee’s
voluntary or involuntary termination.

Id.

As a preliminary matter, although Defendant AdSTM is
correct that the TVPA does not operate retroactively, see Doe v.
Siddig, 810 F. Supp. 2d 127, 136 (D.D.C. 2011), AdSTM is incorrect
in its conclusion that Plaintiff’s entire peonage claim should be
dismissed on that basis.

Rather, the TVPA’s December 2008

expansion only serves to limit Plaintiff’s Amended Complaint to
those events that allegedly took place after its passage on
December 23, 2008.
Having limited Plaintiff’s Amended Complaint to the
relevant alleged facts, as well as drawn all reasonable inferences
in Plaintiff’s favor, the Court finds that Plaintiff has failed to
state a claim upon which relief can be granted.

Although

Plaintiff has included sufficient facts to suggest the existence
of an imagined debt, Plaintiff has failed to allege sufficient
facts to suggest that he was forced to work at AdSTM against his
will.

In fact, he continues to work there today.

The only

threats in his Amended Complaint came from his sister, Defendant
Guan, and included warnings about the likelihood of losing his
employment with AdSTM and his H-1B visa if he failed to make the
payments to Defendant Ran each month.
12

Amend. Compl., ¶¶ 71, 75,

97-98.

However, as Defendant AdSTM correctly notes, there is no

violation of the TVPA if an employer merely informs an employee
about legitimate immigration consequences that may arise from that
employee’s termination.

See Muchira v. Al-Rawaf, 850 F.3d 605,

622-25 (4th Cir. 2017).

In addition, Plaintiff is a highly

educated employee who has earned, and continues to earn, a healthy
salary at AdSTM.

He certainly has the resources to investigate

whether his Non-Compete Agreement—which the Amended Complaint
holds out as additional proof of his psychological coercion—was
legally enforceable, as well as to inquire about the possibility
of pursuing employment elsewhere.

Accordingly, the Court will

grant Defendant AdSTM’s motion to dismiss Count I.
For all the reasons discussed above, Plaintiff’s peonage
claim also fails with respect to Defendants Guan and Ran.

The

Court will therefore dismiss Count I with respect to all three
defendants.
B.

Plaintiff’s Additional TVPA Claims that Depend Upon a
Violation of Section 1581(a)
Plaintiff’s second and third claims involve allegations

that Defendants (1) recruited, transported and harbored him in
order to hold him in a condition of peonage in violation
of Section 1590 (Third Claim for Relief); and (2) knowingly
benefitted financially from participating in a venture that
violated Section 1581(a) (Second Claim for Relief).

13

Having

concluded that there is insufficient evidence in the record to
support Plaintiff's claim that Defendants AdSTM, Guan, and Ran
violated Section 1581(a), or any other predicate offense under the
TVPA, Plaintiff's remaining claims under the TVPA must necessarily
be dismissed against all Defendants, including Defendant Qi Tech. 3
C.

Plaintiff’s Declaratory Judgment Claim to Void AdSTM’s NonCompete Agreement
Plaintiff’s Amended Complaint also includes a request

for a declaratory judgment regarding the Non-Compete Agreement he
signed before beginning his employment at AdSTM.

The Declaratory

Judgment Act (the “DJA”) is not a jurisdictional
grant.

See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.

667, 671–72 (1950).

Rather, its purpose is to allow federal

courts to exercise jurisdiction only in cases that: (1) meet the
case or controversy requirement; and (2) present a valid basis for
subject matter jurisdiction.

Dunn Computer Corp. v. Loudcloud,

Inc., 133 F. Supp. 2d 823, 826 (E.D. Va. 2001).

Moreover, “even

where a request for a declaratory judgment meets both of these
requirements, the exercise of declaratory jurisdiction [still]
rests within the sound discretion of the district court.” Id.
First, a declaratory judgment action must satisfy the
case or controversy requirement of Article III of the United
States Constitution.

MedImmune, Inc. v. Genentech, Inc., 549 U.S.

3

Section 1593A requires a violation of §§ 1581(a), 1592, or 1595(a). Section
1590 and § 1595(a) require the showing of other actions in “violation of this
chapter.”

14

118, 126–27 (2007).

To be justiciable, a controversy must be

“definite and concrete, touching the legal relationships of
parties having adverse ... interests.”

Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240–41 (1937).

It also must be “real and

substantial,” rather than “an opinion advising what the law would
be upon a hypothetical state of facts.”

Id. at 241. Finally, it

must be “of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”
Such an inquiry is fact-intensive.

MedImmune, 549 U.S. at 127.
Id.

In the instant case, Petitioner fails to satisfy the
Article III case or controversy requirement due to lack of
immediacy.

Plaintiff has failed to allege sufficient facts to

establish a real and immediate danger with regards to the NonCompete Agreement.

Defendant AdSTM has never sought to enforce

the Non-Compete Agreement against Plaintiff.

In fact, based on

AdSTM’s pleadings in this case, it appears that AdSTM has no
intention of doing so and would be more than happy to oblige
Plaintiff’s potential desire to seek employment elsewhere.
“Where, as here, a declaratory judgment request rests entirely on
speculation and conjecture, there is no ‘sufficient immediacy’ to
warrant a discretionary grant of declaratory relief.”

Firestone

v. Wiley, 485 F. Supp. 2d 694, 700 (E.D. Va. 2007) (citing Aetna
Cas. & Sur. Co. v. Ind–Com Elec. Co., 139 F.3d 419, 422 (4th Cir.

15

1998) (noting that declaratory judgment jurisdiction should not be
exercised when the declaratory relief sought is premature)).
Given that Count V of the Amended Complaint does not
meet the constitutional case or controversy requirement, this
Court is without subject matter jurisdiction to decide its claims.
Accordingly, the Court will grant Defendants’ motion to dismiss
Count V.
D.

Plaintiff’s Remaining State Law Claim
Plaintiff’s final claim involves a Virginia state law

claim based upon unjust enrichment. 4
Defendants Guan and Ran only.

This claim is brought against

Because the Court has dismissed all

of Plaintiff’s federal claims, there is no federal question
jurisdiction in this case.

Complete diversity of citizenship also

does not exist, as required by 28 U.S.C. § 1332(a), thereby
precluding this Court’s subject matter jurisdiction. 5
“Given that [Plaintiff’s] federal claims have been
dismissed, the Court must determine whether to continue to
exercise supplemental jurisdiction over the state law

4
Plaintiff concedes, and the Court agrees, that his unjust enrichment claim is
limited to March 24, 2014 (the three years immediately preceding the filing of
his lawsuit) until September 2014. Am. Compl., ¶ 210.
5
Plaintiff is a resident of Virginia. Am. Compl., ¶ 1. Though Defendant Guan
is diverse to Plaintiff, id., ¶ 3, the remaining defendants are not. Defendant
Ran is a resident of Virginia, id., ¶ 4, Defendant AdSTM’s principal place of
business and headquarters are in Virginia, id., ¶ 5, and Defendant Qi Tech’s
principal place of business and headquarters are also in Virginia, id., ¶ 7.
See Cent. W. Va. Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101,
102 (4th Cir. 2011) (“For federal diversity jurisdiction purposes, a corporation
is a citizen of the states in which it has been incorporated and in which it has
its principal place of business.”)

16

claims.”

J.S. ex rel. Simpson v. Thorsen, 766 F. Supp. 2d 695,

712 (E.D. Va. 2011).

The doctrine of supplemental jurisdiction

states that federal courts have discretion to retain or dismiss
non-federal claims when the federal basis for an action is no
longer applicable.

See 28 U.S.C. § 1367 (codifying United Mine

Workers of America v. Gibbs, 383 U.S. 715 (1966)).

A district

court has discretion to dismiss a case where, as here, the court
“has dismissed all claims over which it has original
jurisdiction.”

28 U.S.C. § 1367(c)(3).

In the Fourth Circuit, “trial courts enjoy wide latitude
in determining whether or not to retain jurisdiction over state
claims when all federal claims have been
extinguished.”

Shanaghan, 58 F.3d at 110.

Courts take a number

of factors into consideration in making this discretionary
determination: “convenience and fairness to the parties, the
existence of any underlying issues of federal policy, comity, and
considerations of judicial economy.”

Id. (citing Carnegie–Mellon

University v. Cohill, 484 U.S. 343, 350 n.7 (1998)).

As

the Shanaghan court points out, “the doctrine of supplemental
jurisdiction ‘is a doctrine of flexibility, designed to allow
courts to deal with cases involving pendent claims in the manner
that most sensibly accommodates a range of concerns and
values.’”

Id. (quoting Cohill, 484 U .S. at 350).
Having dismissed all of Plaintiff’s federal claims, as
17

well as determined that diversity of citizenship does not exist,
the Court will decline to exercise supplemental jurisdiction over
Plaintiff’s remaining state law claim.

Accordingly, Plaintiff’s

unjust enrichment claim will be dismissed for lack of subject
matter jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1).
In dismissing Plaintiff’s claim, the Court notes that
nothing in the record appears to bar Plaintiff from pursuing his
claim in state court, and therefore Plaintiff is not without a
forum in which to seek redress.

See Va. Code § 8.01-229(E)

(permitting tolling of the statute of limitations for pending
actions) and 28 U.S.C. § 1367(d) (same); see also Welding, Inc. v.
Bland Cnty. Serv. Auth., 541 S.E.2d 909, 912 (Va. 2001) (holding
that Virginia Code § 8.01–229(E)(1) applies to actions in federal
court).
E.

Plaintiff’s Request for Leave to Amend
At the end of each of his briefs in opposition,

Plaintiff requests leave to amend a second time if the Court finds
deficiencies in his Amended Complaint.

[See Dkts. 51-54.]

Plaintiff does not include any specific proposed amendments.
[Id.]
A party may amend its complaint after a responsive
pleading has been served “only by leave of court or by written

18

consent of the adverse party.” 6

Fed. R. Civ. P. 15(a).

Rule 15 of

the Federal Rules of Civil Procedure directs that “leave shall be
freely given when justice so requires.”

Id.

The liberality of

the rule “gives effect to the federal policy in favor of resolving
cases on their merits instead of disposing of them on
technicalities.”

Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.

2006) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)).
Therefore, “leave to amend a pleading should be denied ‘only when
the amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or the
amendment would be futile.’”

Edwards v. City of Goldsboro, 178

F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509 (4th Cir. 1986)).
In the instant case, Plaintiff did not act in bad faith
in including a request for leave to amend in his opposition
briefs.

Because this case is still in its early stages, the Court

also finds that allowing leave to amend the Amended Complaint a
second time would not be unduly prejudicial to Defendants.
However, such an amendment would be futile.

Plaintiff has not

identified any revisions that would allow his Amended Complaint to
survive a Rule 12(b)(6) motion to dismiss.

The Court also cannot

identify any ways in which Plaintiff could cure the defects.

6

All four Defendants oppose Plaintiff’s request.

19

[See Dkts. 55-58.]

Accordingly, Plaintiff’s request for leave to amend will be
denied.
IV. Conclusion
For the reasons set forth above, the Court will grant
Defendants’ motion to dismiss Counts I-III under Rule 12(b)(6).
The Court will also grant Defendants’ motion to dismiss Count V
due to failure to satisfy Article III’s case or controversy
requirement.

In addition, the Court will grant Defendants’ motion

to dismiss Count IV, as this Court declines to exercise
supplemental jurisdiction over Plaintiff’s remaining state law
claim.

Finally, the Court will deny Plaintiff’s request for leave

to amend.
An appropriate order will follow.

July 6, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

20