Altizer et al v. Town of Cedar Bluff Virginia et al

Filing 10

OPINION AND ORDER denying 9 Motion for Reconsideration. Signed by Judge James P. Jones on 6/16/14. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
MARILYN ALTIZER, ET AL.,

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Plaintiffs,
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v.
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TOWN OF CEDAR BLUFF, VIRGINIA, )
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ET AL.,
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Defendants.
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Case No. 1:14CV00007
OPINION AND ORDER
By: James P. Jones
United States District Judge

Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Plaintiffs; W.
Bradford Stallard, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendants.
The plaintiffs, Marilyn and Timothy Altizer, have filed a motion seeking
reconsideration of the court’s order terminating Mr. Altizer as a party and
dismissing the claim for breach of fiduciary duty. For the following reasons, I will
deny the motion.
I
First, the plaintiffs challenge the court’s determination that, because he had
not alleged an injury in fact,1 Mr. Altizer did not have standing to bring a claim for
First Amendment retaliation. The challenge is premised upon the fact that Mr.
Atlizer “specifically [ ] alleged that he was damaged by the loss to the family unit
of his wife’s contribution to the joint family resources that previously had been
1

Because I again find that Mr. Altizer has not alleged an injury in fact, I do not
reach the plaintiffs’ argument as to redressability.

derived from her employment.” (Mot. Recons. 2, ECF No. 9.) The plaintiffs also
point to the “chilling effect” that Ms. Altizer’s termination had on Mr. Altizer’s
speech.
As held by the Fourth Circuit, such allegations are insufficient to establish
standing. Where a public employee alleged that he was demoted in violation of the
First Amendment because of his and his wife’s speech, the Fourth Circuit held that
the “chilling effect” of the alleged retaliatory demotion and resultant loss of family
income were “too indirect and speculative to support [the wife’s] standing as
plaintiff in a lawsuit filed to challenge the propriety of her husband’s demotion.”
English v. Powell, 592 F.2d 727, 730 (4th Cir. 1979). For this reason and the
reasons stated in the previous decision, Altizer v. Town of Cedar Bluff, Va., No.
1:14CV00007, 2014 WL 2535057 (W.D. Va. June 5, 2014), Mr. Altizer’s nearly
identical allegations fail to establish standing to sue alongside his wife. 2
Second, the plaintiffs contend that the court improperly dismissed their
claim for breach of fiduciary duty, insofar as “[t]he Complaint, in fact, sets out the
source of the fiduciary duty, specifies the duty allegedly breached, and the
damages [Ms. Altizer] sustained.” (Mot. Recons. 4, ECF No. 9.) The plaintiff
argues that the duty is derived from 26 U.S.C. § 457(g)(1), requiring that deferred

2

Mr. Atlizer also claims damages for “shame, degradation, and humiliation,”
(Compl. ¶ 13, ECF No. 1), but has alleged no facts beyond his wife’s termination to
support the claim. It is insufficient as a basis for injury.
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compensation from governmental plans organized thereunder be held in trust for
the exclusive benefit of the employee.
However, it is not alleged that the defendant Town of Cedar Bluff served as
a trustee for the deferred compensation plan, nor is it alleged that the defendants
violated a duty arising from any source other than the contract establishing the
retirement plan. As such, the allegations are insufficient to support a claim for
breach of fiduciary duty. Sun Hotel, Inc. v. SummitBridge Credit Invs. III, LLC,
No. CL-2012-14062, 2013 WL 8019584, at *5 (Va. Cir. Ct. Jan. 23, 2013) (“A
plaintiff must identify a breach of duty arising from a source other than its
contractual relationship with the Defendant.”); Oleyar v. Kerr, 225 S.E.2d 398, 399
(Va. 1976) (“If the cause of complaint be for an act of omission or non-feasance
which, without proof of a contract to do what was left undone, would not give rise
to any cause of action . . . then the action is founded upon contract, and not upon
tort.”). For these reasons, I do not disturb my earlier decision dismissing the claim
for breach of fiduciary duty.
II
For the foregoing reasons, it is ORDERED that the plaintiffs’ Motion for
Reconsideration (ECF No. 9) is DENIED.
ENTER: June 16, 2014
/s/ James P. Jones
United States District Judge
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