Pasco v. Zimmerman et al
Filing
10
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Shenandoah County Library.
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
ROBERT L. PASCO,
Plaintiff
Civil Action No.: 5:11CV87
v.
HANK ZIMMERMAN, et als.
Defendant
MOTION TO DISMISS
Defendant Shenandoah County Library ("Library"), by counsel, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, hereby moves that the Court dismiss with
prejudice the Complaint in its entirety as against it for failure to state a claim upon which relief
can be granted and lack of subject matter jurisdiction, and states in support as follows:
1. The plaintiff fails to state an actionable claim under 42 U.S.C. §§ 1983 and 1988
against Defendant Library, as he has not cited a policy or custom of Defendant Library that
caused his alleged unconstitutional injury.
2. As the plaintiff has failed to state a claim for relief against Defendant Library
pursuant to 42 U.S.C. §§ 1983 and 1988, or any other violation of a federal right protected by the
Umted States Constitution, this Court is without subject matter jurisdiction as to the remaining
claims alleged against Defendant Library.
3. The plaintiff fails to state sufficient facts showing liability on part of Defendant
Library for the alleged state tort claims committed by Defendant Moore.
4. The plaintiff fails to state a claim for wrongful discharge in violation of public policy.
5. There are no compelling reasons or circumstances that would justify this Court's
retention of the state law claims raised against Defendant Library. As such, all of these claims
should be dismissed.
tlj/MGM/Shenandoah County/Library/Pasco v. Zimmerman/Pleadings
/motion to dismiss.Library//05387-0;Tll-0148/12.22.11
6. Defendant Library has set forth the basis for the dismissal in the attached Brief in
Support.
WHEREFORE, Defendant Library, by counsel, respectfully requests that based on all of
the reasons set forth in the attached Memorandum in Support of the Motion to Dismiss, and for
the reasons to be argued at the hearing of this matter, the Court grant Defendant Library's
Motion to Dismiss pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil Procedure, dismiss
this matter with prejudice in its entirety as against it, and for any fiirther relief deemed necessary
and proper.
SHENANDOAH COUNTY LIBRARY
By Counsel
LiTTEN & S I P E
L.L.P.
By: l^/JK^^iXk^ 'cJx/'Hr—
Mehsa G. Michelsen
J. Jay Litten
Virginia State Bar Nos. 4000land 24567
410 Neff Avenue
Harrisonburg, Virginia 22801-3434
Telephone (540) 434-5353
Facsunile (540) 434-6069
Counsel for Defendants Hank Zimmerman, Board of Trustees of
the Shenandoah County Libi'ary, and Shenandoah County Library.
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CERTIFICATE
I certify that on the 22"'' day of December, 2011, I electronically filed the foregoing
Motion to Dismiss with the Clerk of the Court using the CM/ECF system, which wil send
notification of such filing to Timothy E. Cupp, Esq., Cupp & Cupp, P.C, 1951-D Evelyn Byrd
Avenue, P.O. Box 589, Harrisonburg, Virginia 22803, Cupplaw@comcast.net, Counsel for
Plaintiff; and to Julia B. Judkins, Esq., Bancroft, McGavin, Horvath, & Judkins, P.C, 3920
University Drive, Fairfax, Virginia 22030, Jjudkins@bmhjlaw.com, Counsel for Defendant
James Dallas Moore.
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Counsel for Defendants Hank Zimmerman, Board
of Trustees ofthe Sheriandoah County Library,
and Shenandoah County Library.
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