HS Construction III Inc v. Day And Zimmerman Incorporated
Filing
20
OPINION AND ORDER GRANTING 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by HS Construction III Inc; DISMISSING Fourth Counterclaim. Signed by Judge James P. Jones on 6/17/2013. (lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
HS CONSTRUCTION III, INC.,
Plaintiff,
v.
DAY AND ZIMMERMAN,
INCORPORATED,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 1:13CV00032
OPINION AND ORDER
By: James P. Jones
United States District Judge
Joseph B. Lyle and Kenneth D. Hale, Hale, Lyle & Russell, Bristol,
Tennessee, for Plaintiff; Robert L. Arrington and Melanie M. Lamb, Wilson Worley
Moore Gamble and Stout, PC, Kingsport, Tennessee, Mark S. Hanor, Hanor Law
Firm, Kingsport, Tennessee, and Aaron Krauss, Cozen O’Connor, Philadelphia,
Pennsylvania, for Defendant.
The plaintiff has filed a Motion to Dismiss, contending that the defendant’s
Fourth Counterclaim fails to state a claim upon which relief can be granted. Fed.
R. Civ. P. 12(b)(6). In that counterclaim, the defendant seeks costs and attorneys’
fees as provided by Tennessee Code section 50-1-304(f).1 The defendant has
responded to the Motion to Dismiss and it is ripe for decision.
1
That statute provides as follows:
(1) This section shall not be used for frivolous lawsuits, and anyone
trying to do so is subject to sanction as provided in subdivision (f)(2).
(2) If any employee files a cause of action for retaliatory discharge
for any improper purpose, such as to harass or to cause needless increase in
The motion will be granted. In its motion, the plaintiff renounces any claim
under section 50-1-304. It instead seeks relief under a common law theory of
retaliatory discharge, a separate cause of action. See Mason v. Seaton, 942 S.W.2d
470, 475 (Tenn. 1997). At this point in the case, at least, the statutory sanctions are
inapplicable.
For these reasons, it is ORDERED that the Motion to Dismiss is
GRANTED and the Fourth Counterclaim is dismissed.
ENTER: June 17, 2013
/s/ James P. Jones
United States District Judge
costs to the employer, the court, upon motion or upon its own initiative,
shall impose upon the employee an appropriate sanction, which may
include an order to pay the other party or parties the amount of reasonable
expenses incurred, including reasonable attorney’s fees.
Tenn. Code Ann. § 50-1-304(f) (West 2011).
-2-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?