Pasco v. Zimmerman et al

Filing 12

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Board of Trustees of the Shenandoah County Library.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division

ROBERT L. PASCO,
Plaintiff
Civil Action No.: 5:11CV87
y.

HANK ZIMMERMAN, et als.
Defendant.

MOTION TO DISMISS
Defendant Board of Trastees of the Shenandoah County Library ("Board of Trustees"),
by counsel, pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil Procedure, hereby moves that
the Court dismiss with prejudice the Complaint in hs 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 Board of Trustees, as he has not ched a policy or custom of Defendant Board
of Trustees that caused his alleged unconstitutional injury.
2. As the plaintiff has failed to state a claim for relief against Defendant Board of
Trustees pursuant to 42 U.S.C. §§ 1983 and 1988, or any other violation of a federal right
protected by the United States Constitution, this Court is without subject matter jurisdiction as to
the remaining claims alleged against Defendant Board of Trastees.
3. The plaintiff fails to state sufficient facts showing liability on part of Defendant
Board of Trustees 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 Board of Trustees. As such, all of
these claims should be dismissed.

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6. Defendant Board of Trastees has set forth the basis for the dismissal in the attached
Brief in Support.
WHEREFORE, Defendant Board of Trustees, 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 ofthis matter, the Court grant Defendant
Board of Trustees' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, dismiss this matter with prejudice in its entirety as against it, and for any further relief
deemed necessary and proper.
BOARD OF THE TRUSTEES OF THE
SHENANDOAH COUNTY LIBRARY
By Counsel

LITTEN & SIPE L.L.P.

^^^2^:^^—
Melisa G. Michelsen
J. Jay Litten
Virginia State Bar Nos. 4000 land 24567
410 Neff Avenue
Harrisonburg, Virginia 22801-3434
Telephone [phone]
Facsimile [phone]

Counsel for Defendants Hank Zimmerman, Board of Trustees ofthe
Shenandoah County Library, and Shenandoah Count}' 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 will 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, [e-mail], Counsel for
Plaintiff; and to Julia B. Judkins, Esq., Bancroft, McGavin, Horvath, & Judkins, P.C, 3920
University Drive, Fairfax, Virginia 22030, [e-mail], Counsel for Defendant
James Dallas Moore.

Counselfor Defendants Hank Zimnterman, Board
of Trustees ofthe Shenandoah County Library,
and Shenandoah County Library.

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