Robinson v. Res-Care, Inc.
Filing
25
MEMORANDUM OPINION AND ORDER denying plaintiff's 9 MOTION Not to Dismiss Complaint; granting defendant's 13 MOTION to Dismiss 10 Amended Complaint; plaintiff can amend complaint by 7/31/2013 to allege a state-law claim for wrongful termination; if the complaint is not amended by that date, this case will be terminated. Signed by Judge John T. Copenhaver, Jr. on 7/11/2013. (cc: pro se plaintiff; attys; United States Magistrate Judge) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARGARET I. ROBINSON,
Plaintiff,
v.
Civil Action No. 2:12-05672
RES-CARE, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the plaintiff’s motion not to dismiss the
amended complaint, filed October 25, 2012, as was the amended
complaint itself; and the defendant’s motion to dismiss the
amended complaint, filed November 15, 2012.
This action was previously referred to Mary E.
Stanley, United States Magistrate Judge, who submitted her
Proposed Findings and Recommendation pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B) on December 27, 2012.
She
recommends granting the defendant’s motion and dismissing the
plaintiff’s six defamation claims, finding five of the claims
barred by the applicable statute of limitations and the sixth
premised on statements protected by an absolute privilege.
After being granted additional time to respond, the
plaintiff filed objections to the Proposed Findings and
Recommendation on June 12, 2013.
Her primary objection appears
to be that she was terminated on August 22, 2011, and that the
one-year statute of limitations applicable to defamation claims
had therefore not expired with respect to her first five claims
when she filed suit on August 17, 2012.
Pl.’s Objections 2-3.
The sixth claim is not addressed in her objections.
Under West Virginia law, the statute of limitations is
triggered when the cause of action accrues, W. Va. Code § 55-212(c), or when the defamation becomes known, or reasonably
should have been known, to the plaintiff, Garrison v. Herbert J.
Thomas Mem’l Hosp. Ass’n, 438 S.E.2d 6, 13 n.9 (W. Va. 1993)
(quoting Padon v. Sears, Roebuck & Co., 411 S.E.2d 245 syllabus
(W. Va. 1991)).
The magistrate judge thus concluded that any
claim of defamation arising from the five defamatory statements
made between July 27, 2011 and August 5, 2011 was barred, given
that suit was not initiated until August 17, 2012.
The
plaintiff does not argue, nor do the materials submitted to the
court suggest, that the plaintiff was unaware of any of the five
statements until after August 17, 2011.
Accordingly, the court
concludes that the magistrate judge properly applied the statute
of limitations.
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The plaintiff presents no cognizable objection to the
magistrate judge’s assertion that the sixth and final allegedly
defamatory statement was protected by an absolute privilege.
Consequently, the court adopts the Proposed Findings and
Recommendation.
It is hereby ordered that the defendant’s
motion to dismiss the six defamation claims be granted, and the
plaintiff’s motion not to dismiss be denied.
Finally, the court notes that the plaintiff has
repeatedly expressed a desire to assert a claim for wrongful
termination.
See Pl.’s Objections 1, filed June 12, 2013; Pl.’s
Resp. to the Ct.’s Mem. Op. and Order of April 10, 2013, at 2,
filed April 24, 2013; Pl.’s Letter-Form Objections 1, filed
January 29, 2013.
Given the plaintiff’s pro se status, the
court affords the plaintiff the opportunity to amend her
complaint until July 31, 2013 to allege a state-law claim for
wrongful termination.
If the complaint is not so amended by
that date, this case will be dismissed.
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The Clerk is directed to forward copies of this
written opinion and order to the pro se plaintiff, all counsel
of record, and the United States Magistrate Judge.
DATED: July 11, 2013
John T. Copenhaver, Jr.
United States District Judge
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