Bocock v. Specialized Youth Services of Virginia, Inc. et al

Filing 30

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 4/10/15. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
SUSAN BOCOCK,
Plaintiff,
v.
SPECIALIZED YOUTH SERVICES OF
VIRGINIA, INC., d/b/a Shenandoah
Academy,
and
TARIE SHULL,
Defendants.

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Civil Action No.: 5:14cv00050

By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
This matter was referred to the Honorable Joel C. Hoppe, United States Magistrate Judge,
pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings of fact and a recommended
disposition as to defendants’ motion to dismiss, Dkt. Nos. 6 and 9. After briefing and oral
argument, the magistrate judge filed a report and recommendation on December 15, 2014,
(hereinafter “Report”) recommending that the motion be denied. Dkt. No. 19. Defendants
timely filed objections to the Report, Dkt. No. 20, and plaintiff has filed a response. Dkt. No. 21.
The court has reviewed the Report, defendants’ objections to the same, and plaintiff’s
response. For the reasons set forth herein, the court DENIES the motion to dismiss, but for
reasons different, in part, than those stated in the Report; thus, the Report will be adopted in part
and rejected in part.
Plaintiff Bocock filed her three-count complaint in Rockingham County Circuit Court on
August 29, 2014. The first two counts allege violations of the Americans with Disabilities Act,
42 U.S.C. §§ 12101-12113, (“ADA”), against defendant Specialized Youth Services of Virginia,

Inc., (“SYS”).1 Count three alleges a claim of wrongful discharge in violation of Virginia public
policy against SYS and Tarie Shull. See Dkt. No. 1-1. Defendants timely removed the
complaint to federal court, invoking this court’s jurisdiction under 28 U.S.C. § 1331, which
confers original jurisdiction of any action “arising under the . . . laws . . . of the United States.”
Dkt. No. 1 at 2. The court has jurisdiction over the supplemental state law claim under 28 U.S.C.
§ 1367. The Report contained the procedural history, facts, and standard of review, which are all
adopted in full.
The Report concluded that plaintiff had adequately pled a cause of action under the ADA
for wrongful discharge and failure to accommodate. It thus recommended that defendants’
motion to dismiss count one of the complaint be denied. Defendants have not objected to this
portion of the Report, and the court concludes that this recommendation should be adopted in full
for the reasons explained by the magistrate judge. Thus, defendants’ motion to dismiss the
complaint will be denied insofar as it seeks dismissal of count one of plaintiff’s complaint.
Defendants also argued in their Rule 12(b)(6) motion to dismiss that plaintiff’s claims for
emotional distress damages should be stricken from the complaint. They asserted two different
bases for this request. First, as to both count one and count three, they claimed that plaintiff had
not pled sufficient facts to support emotional distress damages. Second, as to count three only,
they noted that Virginia generally does not allow emotional distress damages for a tort claim
absent a physical injury, and posited that none of the exceptions to that general rule are
applicable to the wrongful discharge claim in this case. See Dkt. No. 7 at 16-19.
The magistrate judge disagreed with both of defendants’ arguments and recommended
denial of the motion to dismiss. He determined that Rule 12(b)(6) is not the correct procedural

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After briefing but before the magistrate judge entered his Report, plaintiff voluntarily dismissed count
two, with defendants’ consent. Dkt. No. 18. The parties’ arguments related to that count are therefore moot.

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tool to dismiss damages because “Rule 12(b)(6) may only be used to dismiss a claim in its
entirety . . . and a demand for relief is not part of a plaintiff’s statement of the claim.” Dkt. No.
19 at 13 (internal citations and quotations omitted). Instead, he concluded that the appropriate
procedural tool is Rule 12(f), see id., which permits the striking of “an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Construing
the motion as a Rule 12(f) motion, and finding that striking pled damages is only appropriate
under Rule 12(f) when the request for relief is unavailable as a matter of law, the magistrate
judge then analyzed the merits of defendants’ arguments against damages to determine if the
damages were unavailable as a matter of law.
The magistrate judge recognized that there are no Virginia cases that have definitively
determined whether emotional damages are recoverable for a Bowman-type claim.2 He
reasoned, however, that Bowman claims would fall within the exception established by Sea-Land
Serv. Inc. v. O’Neal, 297 S.E.2d 647, 653 (Va. 1982), which allowed recovery of emotional
distress damages absent physical injury. Concluding that emotional damages were at least
potentially available to plaintiff, the Report recommended denial of the Rule 12(f) motion.
This court adopts the recommendation that the defendants’ motion to strike and/or
dismiss the emotional distress damages be denied, but for different reasons. Specifically, the
court concludes that dismissal of the emotional distress damages is premature because neither
Rule 12(b)(6) nor Rule 12(f) is an appropriate vehicle to dismiss the request for relief.3 Because
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In Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985), the Supreme Court of Virginia
recognized a tort claim of wrongful termination in violation of Virginia public policy and described it as a limited
exception to Virginia’s employment-at-will doctrine.
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This court is aware that the United States Court of Appeals for the Fourth Circuit has affirmed dismissals
of requests for relief pursuant to Rule 12(b)(6) and Rule 12(f), but it does not appear that the court in those cases
was asked to decide whether Rule 12(b)(6) or 12(f) are appropriate procedural tools for the dismissal of a requested
remedy. See, e.g., Francisco v. Doherty, Sheridan & Grimaldi, L.L.P., 178 F.3d 1283, 1999 WL 231790, at *2 (4th
Cir. 1999) (unpublished table decision) (affirming, without discussion, district court’s Rule 12(b)(6) dismissal of
claims for emotional distress damages and punitive damages); Mitchell v. Lydall, Inc., 16 F.3d 410, 1994 WL

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of this finding, the court does not address the merits of defendants’ arguments regarding
emotional distress damages and does not reach a decision as to whether emotional distress
damages are recoverable for a Bowman claim.
With regard to the use of Rules 12(b)(6) and 12(f) to dismiss the relief requested in the
complaint, the court agrees with the Report’s conclusion that Rule 12(b)(6) is not available, but
disagrees with the Report’s conclusion that Rule 12(f) is available. The court instead concludes
that neither rule can be used to dismiss or strike the relief requested in the complaint and
therefore adopts Part III(B)(1) of the Report only insofar as it discusses Rule 12(b)(6). The
portions of Part III(B)(1) of the Report discussing Rule 12(f) are rejected.
As noted in the Report, a number of courts have recognized that Fed. R. Civ. P. 12(b)(6)
does not provide a vehicle to dismiss a portion of relief sought or a specific remedy, but only to
dismiss a claim in its entirety. See Dkt. No. 19 at 12-13 (collecting authority). Indeed, at least
two other judges of this court have so held. See Charles v. Front Royal Volunteer Fire & Rescue
Dep’t, Inc., 21 F. Supp. 3d 620, 629, 631-32 (W.D. Va. 2014) (Urbanski, J.); Debord v.
Grasham, 2014 WL 3734320, at *1 (W.D. Va. July 28, 2014) (Jones, J.) (agreeing with Charles
court “that a Rule 12(b)(6) motion is a premature means to attack a request for punitive damages,
at least where such damages are theoretically recoverable under the applicable law”).
As explained in Charles, Rule 12(b)(6) is a vehicle to dismiss a “claim” in its entirety. 21
F. Supp. 3d at 629 (citation omitted). Thus, a court “should not dismiss a complaint so long as it
sets out facts sufficient to support a reasonable inference that the plaintiff is entitled to any relief
the court can grant, even if that relief is not specifically requested.” Id. (citations omitted)
(emphasis in Charles). This principle is reinforced “by Rule 54(c), which provides that a

38703, at *4 (4th Cir. 1994) (unpublished) (after affirming judgment in defendants’ favor as to all claims, noting that
district court did not err in striking claim for punitive damages under Rule 12(f)).

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prevailing party may obtain any relief to which he’s entitled even if he has not demanded such
relief in his pleadings.” Id. (quoting Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002)).
Applying those principles to the case before it, the Charles court denied as premature both: (1) a
motion to dismiss all claims for relief other than injunctive relief on a statutory claim; and (2) a
request for punitive damages in a separate count. Id. at 630, 632. Similarly, the court in Debord
concluded that a 12(b)(6) motion to dismiss the plaintiff’s claim for punitive damages in a case
arising from a motor vehicle accident was premature, although the court recognized that the
plaintiff “likely would be required to show the factual basis of his claim” if he sought
embarrassing, oppressive, or burdensome discovery or at summary judgment. 2014 WL
3734320, at *1-*2.
The above cases are consistent with Rule 8(a), which defines the general rule for pleading
and states, “[a] pleading that states a claim for relief must contain” three separate elements: (1)
the basis of jurisdiction; “(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and (3) a demand for the relief sought . . . .” Fed. R. Civ. P. 8(a) (emphasis
added). Thus, under the plain terms of Rule 8(a), a demand for relief is not part of the “statement
of the claim,” and is only one part of the “claim for relief.”4 Id.; see also Charles, 21 F. Supp. 3d
at 631 (a “demand for relief is not part of a plaintiff’s statement of the claim”) (quoting
Alexander v. Se. Wholesale Corp., 978 F. Supp. 2d 614, 624 n.7 (E.D. Va. 2013) (citation

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In contrast to Rule 12(b)(6), Rule 56 permits the dismissal of part of a claim. See Fed. R. Civ. P. 56(a)
(permitting a party to move for summary judgment on a claim or defense or a “part of [a] claim or defense”). Thus,
a demand for relief could be dismissed at the summary judgment stage. See, e.g., Hamblin v. British Airways PLC,
717 F. Supp. 2d 303, 307 (E.D.N.Y. 2010) (claim under Rule 56 is “composed of both the theory of liability and the
remedies that that theory supports”) (disagreeing with In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 517 F.
Supp. 2d 662, 666 (S.D.N.Y. 2007)). See also Gaither v. Stop & Shop Supermarket Co., __ F. Supp. 3d __, 2015
WL 93842, at *7 n.8 (D. Conn. Jan. 7, 2015) (recognizing 2010 amendment to Rule 56 added “part of each claim or
defense”). This conclusion is further supported by Rule 56(g), under which a court may enter an order identifying
any undisputed “material fact—including an item of damages or other relief” and “treating that fact as established . .
. .” Fed. R. Civ. P. 56(g).

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omitted)). Because Rule 12(b)(6) may be used only to dismiss a “claim” in its entirety, id.
(quoting Janis v. Nelson, 2009 WL 4505935, at *7 (D.S.D. Nov. 24, 2009) (citations omitted)), it
is not available to dismiss only a demand for relief.
The court further concludes that Rule 12(f) is likewise unavailable as a tool to strike the
claim for emotional distress damages here. Rule 12(f) permits the court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” “Rule 12(f) motions are generally viewed with disfavor ‘because striking a portion of a
pleading is a drastic remedy . . . .’” Waste Mgmt. Holdings, Inc., v. Gilmore, 252 F.3d 316, 347
(4th Cir. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1380, 647 (2d ed. 1990)). Clearly a request for relief is not an insufficient defense,
is not redundant, and is not scandalous, nor have defendants argued that it is. Likewise,
defendants have not argued that the request for relief here is immaterial or impertinent.
According to Black’s Law Dictionary, an immaterial averment is one “that alleges something in
needless detail” or a statement that “goes far beyond what is in issue, as by mentioning
irrelevancies.” Black’s Law Dictionary 163 (10th ed. 2014). An impertinent matter is a “matter
not relevant to the action or defense.” Id. at 871. A request for relief is neither immaterial nor
impertinent; rather, a demand for relief is required in a pleading. See Fed. R. Civ. P. 8(a). None
of the terms of Rule 12(f), therefore, allow the striking of the plaintiff’s demand for emotional
distress damages.
Even if the argument could be made that a request for damages is “immaterial” if those
damages are not available under the applicable law, the use of Rule 12(f) to dismiss the request is
problematic for other reasons. As the Ninth Circuit discussed in Whittlestone, Inc. v. HandiCraft Co., 618 F.3d 970, 974 (9th Cir. 2010), an interpretation of Rule 12(f) that would allow the

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dismissal of all or part of a claim would create redundancies within the Federal Rules of Civil
Procedure because Rule 12(f), and either Rule 12(b)(6) or Rule 56, would be alternative vehicles
for the same relief. Such a redundancy would be particularly troublesome because the standards
of appellate review are different.5 “Applying different standards of review, when the district
court’s underlying action is the same, does not make sense.” Id. See also Brown v. Aetna Life
Ins. Co., 2013 WL 3442042, at *4 (W.D. Tex. July 8, 2013) (redundancies are created
particularly when a party seeks, under Rule 12(f), to strike damages because they are precluded
as a matter of law and, allowing a party to do so, would allow a “procedural advantage” because
of the different standard of review). Rule 12(f) then is not a procedural tool available to strike a
request for relief.
For the foregoing reasons, the magistrate judge’s report and recommendation is
ADOPTED IN PART and REJECTED IN PART and the defendants’ motion to dismiss is
DENIED. The Clerk is directed to send a copy of this memorandum opinion to all counsel of
record.
Entered: April 10, 2015.

Elizabeth K. Dillon
United States District Judge

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The standard of review for Rule 12(b)(6) and Rule 56 motions is de novo. Robinson v. Am. Honda Motor
Co., 551 F.3d 218, 222 (4th Cir. 2009) (Rule 12(b)(6)); Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir.
2002) (Rule 56). Rule 12(f) motions are reviewed for abuse of discretion. Renaissance Greeting Cards, Inc. v.
Dollar Tree Stores, Inc., 227 F. App’x. 239, 246 (4th Cir. 2007) (unpublished) (citations to other circuits omitted).

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