Pasco v. Zimmerman et al

Filing 4

MOTION to Dismiss by James Dallas Moore.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
ROBERT L. PASCO,
Plaintiff,
v.
HANK ZIMMERMAN,
individually and in his official capacity
as Chairman of the Board of Trustees
of the Shenandoah County Library
BOARD OF TRUSTEES of the
SHENANDOAH COUNTY LIBRARY,
SHENANDOAH COUNTY LIBRARY,
and
JAMES DALLAS MOORE,
Defendants.

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Civil Action No.: 5:11-cv-00087

MOTION TO DISMISS
COMES NOW the defendant, JAMES DALLAS MOORE (“Moore”), by counsel, and moves
this court pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the plaintiff’s suit with prejudice for failure
to state claims upon which relief may be granted and lack of subject matter jurisdiction; in support
thereof, defendant states as follows:
1.

The plaintiff has failed to state a claim or cause of action for which relief may be

granted against this defendant under the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution and under 42 U.S.C. §§ 1983 and 1988, on the grounds that, based on the actual
facts alleged in the complaint, the actions attributed to defendant Moore were clearly not taken
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against the plaintiff under color of state law, do not constitute state action, and do not give rise to
a federal claim as recognized under the authorities cited by the plaintiff in his complaint.
2.

Inasmuch as the plaintiff has failed to state a claim for relief against this defendant

for violation of any federal rights protected by the United States Constitution or pursuant to 42
U.S.C. § 1983, this court is without subject matter jurisdiction as to the claims alleged against
defendant Moore.
3.

All claims, including the state law claims, should be dismissed. There are no

compelling reasons or circumstances that would justify this court’s retention of the state law claims
raised against this defendant and, therefore, these should be dismissed.
WHEREFORE, defendant Moore respectfully requests that for all of the reasons set forth in
his memorandum in support of motion to dismiss, and for any additional reasons to be argued at
hearing of this matter, the court grant defendant Moore’s motion to dismiss pursuant to Rule 12(b)(6)
and dismiss this matter as to any allegations and claims brought against him.
JAMES DALLAS MOORE
By Counsel

/s/
Julia B. Judkins
Virginia State Bar No. 22597
Bancroft, McGavin, Horvath & Judkins, P.C.
3920 University Drive
Fairfax, Virginia 22030
[phone] (telephone)
[phone] (facsimile)
[e-mail]
Counsel for Defendant James Dallas Moore

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CERTIFICATE OF SERVICE
I hereby certify that on December 7, 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 the following:
Timothy E. Cupp (VBN 23017)
CUPP & CUPP
1951-D Evelyn Byrd Avenue
P.O. Box 589
Harrisonburg, Virginia 22803
[e-mail]
Counsel for Plaintiff

/s/
Julia B. Judkins
Virginia State Bar No. 22597
Bancroft, McGavin, Horvath & Judkins, P.C.
3920 University Drive
Fairfax, Virginia 22030
[phone] (telephone)
[phone] (facsimile)
[e-mail]
Counsel for Defendant James Dallas Moore

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