Cooke et al v. Cosby et al

Filing 17

MEMORANDUM OPINION AND ORDER denying Defendant's 5 MOTION to Dismiss to Dismiss 1 Complaint or, in the Alternative, for Abstention and Stay of Proceedings; directing the parties, including Defendant Cosby, to submit briefing and file appropriate motions by 4/15/2014, addressing the adequacy of Plaintiffs' Complaint and the issues raised by the Court sua sponte. Signed by Judge Thomas E. Johnston on 3/14/2014. (cc: attys; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

ROY L. COOKE, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-cv-09645

ABIGAIL COSBY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending is a motion to dismiss or, alternatively to abstain from, this case. [ECF 5.] The
motion was filed by Defendants’ Shirley Perrine, John Perrine, Jared Linkenauger, Chris Smith,
Jesse Adkins, Eric Mull, Carol Epperly, Dale Epplerly, and Epperly Realty, LLC (“Defendants”)
[ECF 5]. 1 Plaintiffs filed a response in opposition. (ECF 10.) Defendants did not file a reply.
For the reasons that follow, the Court DENIES the motion.
I.

BACKGROUND

This dispute arises from Defendants Carol and Dale Epperly and Epperly Realty, LLC’s
(“the Epperly Defendants”) eviction of Plaintiffs from leased office and warehouse space. The
following pertinent facts are taken from Plaintiffs’ Complaint:
Plaintiffs Roy and Lisa Ross were employees of Plaintiff The Cooke Company LLC.
(ECF 1 at 2.) On March 1, 2009, Plaintiff The Cooke Company and Defendant Epperly Realty
entered into a lease agreement for two adjacent office suites pursuant to a written lease agreement.

1

The sole remaining Defendant, Abigal Cosby, has filed an answer to the Complaint and has not moved to dismiss.
In her Answer, Deputy Cosby asserts, among other things, the defense of qualified immunity. (ECF 8 at 8.)

(Id. at 2–3.) On February 9, 2012, Plaintiffs met with the Epperly Defendants “to resolve all
outstanding issues between them, including outstanding issues of past due rent.” (Id. at 3.)
Plaintiffs did not have legal counsel present during this meeting, but the Epperly Defendants did.
(Id.) The Epperly Defendants “required” Plaintiffs to sign a rental payment agreement “with the
assurance that Plaintiffs would have access to the building so that Plaintiffs could operate the
business.” (Id.) Plaintiff Roy Cooke signed the agreement. (Id.) Plaintiffs gave the Epperly
Defendants two checks for back rent at this meeting and had an oral understanding with the
Epperly Defendants that the checks would not be cashed until February 15, 2012. (Id. at 6.) The
Epperly Defendants allegedly failed to disclose to Plaintiffs that Defendants “had already taken
personal property, including, but not limited to, the property needed to run the business, to wit:
telephones, check capture machine, computers, fax machine, etc.’’

(Id.) Defendant Carol

Epperly “was specifically asked if she had a Court order permitting her to take the personal
property.” (Id.) Carol Epperly allegedly “falsely stated that she did have an order”, but that she
“did not have the order with her.” (Id.) Plaintiffs were not aware that the day before the meeting
Defendant Abigal Cosby, a deputy sheriff, together with the remaining Defendants, entered
Plaintiffs’ leased office premises and removed Plaintiffs’ personal property.

(Id. at 3–4.)

Defendant Cosby is alleged to have been “dressed in her official uniform as a Kanawha County
Deputy Sheriff” at the time the property was removed. (Id.) Defendants refused to return the
personal property until Plaintiffs paid Defendants “in full.” (Id. at 6.) Plaintiffs state that they
would not have signed the rental payment agreement had they known that they were not going to
have their personal property returned until after the arrearage had been paid. (Id.) Plaintiffs

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further allege that, in contravention of their oral agreement, the Epperly Defendants deposited the
two checks Plaintiffs had given them on February 13, 2012. (Id.)
Plaintiffs filed their Complaint on April 30, 2013. (ECF 1.) The Complaint alleges six
counts, each levied against all Defendants: Count one, breach of contract; count two, fraud; count
three conversion; count four, a state constitutional tort claim; count five, a punitive damages
assertion; and count six, a federal civil rights claim pursuant to 42 U.S.C. §§ 1983 and 1985.
Plaintiffs request compensatory and punitive damages, declaratory relief, attorneys’ fees, and
costs.
Thereafter, Defendants filed their pending motion to dismiss or, alternatively, to abstain.
Plaintiffs filed a response in opposition. This matter is now ripe for review.

II.
A.

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Allegations “must be
simple, concise, and direct” and “no technical form is required.” Fed. R. Civ. P. 8(d)(1).
A motion to dismiss for failure to state a claim upon which relief may be granted tests the
legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). While “the requirements for
pleading a proper complaint are substantially aimed at assuring that the defendant be given
adequate notice of the nature of a claim being made against him, they also provide criteria for
defining issues for trial and for early disposition of inappropriate complaints.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citing 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure, § 1202 (3d ed. 2004)).
3

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court
decides whether this standard is met by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual allegations, and then determining whether those
allegations allow the court to reasonably infer that “the defendant is liable for the misconduct
alleged.” Id.

In other words, the factual allegations (taken as true) must “permit the court to

infer more than the mere possibility of misconduct.” Id.
A plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” thereby “nudg[ing] [the] claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 555, 570.

“The plausibility standard requires a plaintiff to demonstrate

more than ‘a sheer possibility that a defendant has acted unlawfully’ . . . [i]t requires the plaintiff to
articulate facts, when accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
Francis, 588 F. 3d at 193 (quoting Twombly, 550 U.S. at 570). While a court must accept the
material facts alleged in the complaint as true, Edwards v. City of Goldsboro, 178 F.3d 231, 244
(4th Cir. 1999), statements of bare legal conclusions “are not entitled to the assumption of truth”
and are insufficient to state a claim, Iqbal. 556 U.S. at 679. A court “owe[s] no allegiance to
‘unwarranted inferences, unreasonable conclusions, or arguments’ drawn from those facts.”
Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011) (citing Monroe v. City of
Charlottesville, 579 F.3d 380, 385–86 (4th Cir. 2009)). While Rule 8 does not require “detailed
factual allegations,” a plaintiff must still provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
4

(citation omitted). Facts pled that are “merely consistent with” liability are not sufficient. Iqbal
at 678 (quoting Twombly, 550 U.S. at 557). A complaint offering “‘naked assertion[s]’ devoid of
‘further factual enhancement’ does not satisfy Rule 8’s pleading standard.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 557). In Iqbal, the Supreme Court stated
[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’
but
it
demands
more
than
an
unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancements.
Id. (citations omitted)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” because courts are not bound to accept as true a legal
conclusion couched as a factual allegation. Id. (internal quotation marks omitted); see also
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009).
“[D]etermining whether a complaint states a plausible claim is context-specific, requiring the
reviewing court to draw on its experience and common sense.” Id.
The question of whether a complaint is legally sufficient is measured by whether it meets
the standards for a pleading stated in Rule 8 (providing general rules of pleading), Rule 9
(providing rules for pleading special matters), Rule 10 (specifying pleading form), Rule 11
(requiring the signing of a pleading and stating its significance), and Rule 12(b)(6) (requiring that
a complaint state a claim upon which relief can be granted). Francis, 588 F.3d at 192.
In reviewing the sufficiency of a complaint a court is generally limited to the allegations
stated in the complaint, but may properly consider “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice,” or sources “whose accuracy

5

cannot reasonably be questioned.” Katyle, 637 F.3d at 466 (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007) (citation altered)).
B.

The Colorado River Doctrine

Federal courts have a “virtually unflagging obligation” to exercise the jurisdiction
conferred on them by Congress. Colorado River Water Cons. Dist. v. United States, 424 U.S.
800, 817 (1976) (citation altered). In “exceptional” circumstances, however, a federal court may
abstain from hearing a suit and stay the case as a matter of “wise judicial administration, giving
regard to the conservation of judicial resources and comprehensive disposition of litigation.” 424
U.S. at 817.
“The Colorado River doctrine permits federal courts to stay or dismiss claims over which
the courts have federal question jurisdiction where pending parallel state proceedings raise the
identical issues.” Trans Energy, Inc. v. EQT Prod. Co., Civil Action No. 5:13CV93, 2014 WL
268641 at *4 (N.D. W. Va. Jan. 23, 2014) (Stamp, J.) (citing Colorado River Conservation Dist. v.
United States, 424 U.S. 800 (1976)).

“The Colorado River doctrine is not a doctrine of

abstention, which is based upon the principles of federalism and comity for state relations; rather,
it is a doctrine resting upon considerations of judicial economy and ‘wise judicial administration.’”
Id. (citing Colorado River, 424 U.S. at 813). Consequently, courts apply the Colorado River
doctrine only in exceptional circumstances. Id. at 818.
In Chase Brexton Health Services, Inc. v. Md., 411 F.3d 457, 463–64 (4th Cir. 2005), the
Fourth Circuit stated:
The threshold question in deciding whether Colorado River abstention is
appropriate is whether there are parallel federal and state suits. If parallel suits
exist, then a district court must carefully balance several factors, with the balance
heavily weighted in favor of the exercise of jurisdiction. Although the prescribed
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analysis is not a hard-and-fast one in which application of a checklist dictates the
outcome, six factors have been identified to guide the analysis: (1) whether the
subject matter of the litigation involves property where the first court may assume
in rem jurisdiction to the exclusion of others; (2) whether the federal forum is an
inconvenient one; (3) the desirability of avoiding piecemeal litigation; (4) the
relevant order in which the courts obtained jurisdiction and the progress achieved
in each action; (5) whether state law or federal law provides the rule of decision on
the merits; and (6) the adequacy of the state proceeding to protect the parties' rights.
In the end, however, abstention should be the exception, not the rule, and it may be
considered only when the parallel state-court litigation will be an adequate vehicle
for the complete and prompt resolution of the issues between the parties.
Id.

“[T]he decision whether to dismiss a federal action because of parallel state-court litigation

does not rest on a mechanical checklist, but on a careful balancing of the important factors as they
apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.”
Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16 (1983).
The Fourth Circuit has given district courts guidance on the threshold determination of
whether state and federal suits are parallel under Colorado River: “Suits are parallel if
substantially the same parties litigate substantially the same issues in different forums.” New
Beckley Mining Corp. v. Int’l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir.
1991). However, “suits need not be identical to be parallel, . . . and the mere presence of
additional parties or issues in one of the cases will not necessarily preclude a finding that they are
parallel.” AAR Int’l, Inc. v. Nimelias Enter. S.A., 250 F.3d 510, 518 (7th Cir. 2001) (internal
citations omitted). “The question is not whether the suits are formally symmetrical, but whether
there is a substantial likelihood that the [state litigation] will dispose of all claims presented in the
federal case.” Id.
III.

DISCUSSION

In their pending motion, Defendants contend that the Court must dismiss the Complaint

7

pursuant to Federal Rule of Civil Procedure 12(b)(6) because the Epperly Defendants were acting
within their rights under the 2009 written lease agreement and, as such, Defendants have “a
complete affirmative defense barring all claims of Plaintiffs.” (ECF 6 at 6.). As an alternative to
dismissal, Defendants urge the Court to abstain from exercising its subject matter jurisdiction
under the Colorado River doctrine.
In support of their argument for dismissal and abstention, Defendants attach several
exhibits to their motion including the written lease agreement, various notices addressed to The
Cooke Company LLC, an affidavit, and documents from the state court proceedings.
Plaintiffs filed a response in opposition to Defendants’ motion. The substance of this
exceptionally brief response is as follows:
In the instant case, the Plaintiffs have alleged that the defendants conspired
with the Kanawha County Sheriff’s Department and defendant Abigail Cosby, a
Kanawha County Sheriff’s Deputy, to violate the Plaintiff’s [sic] civil rights, as
well as other claims.
The current pending lawsuit in Kanawha County Circuit Court alleges fraud
and breach of contract, as does this Complaint, and arises out of the same factual
base. However, the Civil Rights claim is exclusive to this action and should
remain within the jurisdiction of the District Court.
(ECF 10 at 1.)
A.

Analysis
1.

Federal Rule of Civil Procedure 12(b)(6)

At the outset, the Court is troubled by the vagueness of both the Plaintiffs’ allegations in
their Complaint and their unhelpful response to Defendants’ motion to dismiss.

The sole

jurisdictional basis for this federal case is the civil rights claim alleged in the sixth count of the
Complaint. (ECF 1 at 9.) Plaintiffs assert that their civil rights claim arises under 42 U.S.C. §§

8

1983 and 1985.

The lack of detail in the Complaint––particularly with regard to the civil rights

count–– and Plaintiffs’ failure to provide any meaningful substantive response to Defendants’
motion to dismiss, raise the concern whether there will be, at the end of the day, a proper
jurisdictional basis for this case in federal court.
With that weighty concern in mind, the Court turns to the merits of Defendants’ argument
that Plaintiffs have failed to state a viable claim. Based on the documents attached to the motion
to dismiss, there are two pertinent state court cases. The first is the eviction proceeding filed by
Epperly Realty LLC in late January 2012. (ECF 5–2.) That case was dismissed by agreed final
order entered on February 14, 2012. (ECF 5–4.) The agreed order states that The Cooke
Company agreed to pay Epperly Realty LLC $75,000 in three separate installments. (Id.) The
order is signed by Kanawha County Circuit Court Judge Charles E. King, by Plaintiff Roy C.
Cooke as the manager, officer, and principal of The Cooke Company, and by an attorney for the
Epperly Company. (Id. at 4.) A second lawsuit was filed by The Cooke Company, LLC and
Roy Cooke a month after the dismissal of the eviction case. (ECF 5–2.) This second lawsuit
names Epperly Realty, LLC and Carol Epperly and is currently pending before Kanawha County
Circuit Court Judge Todd Kaufman.
Also attached to the motion to dismiss are copies of correspondence from Epperly Realty
to The Cooke Company. (ECF 5–1.) One of these documents is a notice dated November 15,
2011, to The Cooke Company from Epperly Realty advising that The Cooke Company’s tenancy
was in default because of a rental arrearage of $83,028.50. (Id. at 2.) Another document, also
dated November 15, 2011, is a notice advising The Cooke Company of its duty to make various
repairs to the leased premises. A copy of a certified mail receipt that appears to be associated with

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these two notices is included in the exhibit. (Id. at 4.) The certified mail receipt is stamped
November 23, 2011, and hand-written into the “Sent To” block is “Cooke Co.” (Id.) While a zip
code is written on a section of the address line, the rest of the address line is blank. (Id.) There is
also a postal service “Track & Confirm” document that states that the item of certified mail was
delivered on November 26, 2011, in “Charleston, WV 25313.” (Id.) Thus, it may well that the
November 11, 2011 notices were delivered to one or more of the Plaintiffs, but these documents
standing alone do not establish that fact. The remaining notice is dated January 13, 2012, and
states that The Cooke Company received notice on November 15, 2011, that its office leases were
terminated, and that Epperly Realty would exercise its rights under the section of the lease
agreement that permitted Epperly to enter the premises and remove property. (Id. at 5.) There is
also an affidavit that appears to relate to the January 13, 2012, notice averring that the notice was
personally served on Roy Cooke on January 13, 2012. (Id. at 5.)
The Court is mindful that in reviewing the sufficiency of a complaint a court is generally
limited to the allegations stated in the complaint and that it must assume the truth of factual
allegations. The Court may properly consider “documents incorporated into the complaint by
reference, and matters which a court may take judicial notice,” or sources “whose accuracy cannot
reasonably be questioned.” Katyle, 637 F.3d at 466. Here, there is no question that the Court
may properly consider the written lease agreement in assessing the merits of the motion to dismiss.
Plaintiffs’ Complaint not only makes specific reference to the agreement, but also includes
specific quotations from the lease agreement.
The written notices, the certified mail receipt, and the affidavit, however, are not
referenced by the Complaint and may not be properly considered at this juncture. The Complaint

10

makes no reference to these notices and, in fact, the central allegation of the Complaint––and what
appears to the heart of this dispute––is that Defendants “did enter upon the premises of the
plaintiffs, did seize and remove the property of the plaintiffs, and did cause the loss of use of said
property to the plaintiffs, all being done without notice, warrant, court order or other indicia of
legal authority.” (ECF 1 at 4) (emphasis added). Moreover, the affidavit is most certainly not a
document incorporated into the Complaint. Notably, it is unclear from the record as it now stands
whether Defendants were in fact properly served, whether a court order was required prior
Defendants’ entry into the premises, whether Defendants had such an order, or whether
Defendants were entitled under the lease agreement and state law to enter the premises without a
court order so long as they complied with the notice provisions of the lease agreement. As such,
there appear to be several material factual disputes that are better left to the adversarial process at a
later stage. Accordingly, dismissal of this case under Federal Rule of Civil Procedure 12(b)(6) is
premature.
2. Colorado River Abstention
The Court begins its analysis mindful of its “virtually unflagging obligation” to exercise
the jurisdiction conferred on it by Congress and that abstention is appropriate only in exceptional
circumstances. Colorado River, 424 U.S. at 817.
The Court’s analysis begins and ends with the question of whether the pending state case
and this federal case are “parallel” within the meaning of Colorado River. Defendant contends
that this case involves substantially the same issues and parties in the state and federal cases.
(ECF 6 at 8.) Plaintiffs concede that the lawsuit currently pending in state court “alleges fraud

11

and breach of contract, as does this Complaint, and arises out of the same factual base. . . .” (ECF
10 at 1.) Thus, it not disputed that the facts of both cases are the same.
Although the claims arise from the same factual core, the causes of action asserted in the
pending state case are not identical to the claims asserted in this federal case. The state case
alleges two state law counts, breach of contract and fraud. The federal Complaint alleges the
same breach of contract and fraud claims, but adds two additional state law claims, conversion and
constitutional tort. Also, the federal Complaint adds the federal civil rights claim. As stated, that
claim is predicated on 42 U.S.C. §§ 1983, 1985, and 1988. Thus, the claims are not identical and
the addition of a federal civil rights claim makes the cases substantially dissimilar.
In addition to adding claims that are not the subject of the state court suit, Defendant has
named additional parties.

In the state case, the plaintiffs are Roy Cooke and The Cooke

Company, LLC and the defendants are Epperly Realty, LLC and Carol Epperly. These same
parties are named in this federal case, but Plaintiff Lisa Ross, Defendants Dale Epperly, Deputy
Cosby, and six other Defendants are added. Although the parties need not be identical, the parties
in the two cases are dissimilar enough to persuade the Court that the cases are not parallel, at least
on the record as it now stands, under Colorado River. Even if the Court were to find that the cases
were parallel, the federal forum is not inconvenient for the parties, federal law will govern
disposition of the civil rights claim, and the danger of piecemeal litigation is minimal because
claim preclusion principles will ensure that any claim presented in the federal forum that has been
previously and finally adjudicated in the state cases will be readily dismissed. Thus, because the
abstention inquiry’s balance must be “heavily weighted in favor of the exercise of jurisdiction,”
the Court cannot find that this is an exceptional case meriting abstention and a stay.

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3.

Sufficiency of Plaintiffs’ Complaint under Federal Pleading Standards

Defendants’ motion to dismiss did not challenge the sufficiency of Plaintiffs’ Complaint
under federal pleading standards.

The Court thus raises sua sponte the question whether

Plaintiffs have shown plausible claims for relief under Iqbal and Twombly.
The Court questions whether the Complaint contains sufficient factual allegations that
plausibly show that Plaintiffs are entitled to relief on some or all of their claims. For example, the
Complaint makes only threadbare assertions against at least six of the Defendants in this case.
More specifically, the sole reference to these Defendants appears in paragraph 3 in the opening
section of the Complaint that identifies the parties. Paragraph 3 states: “Defendants SHIRLEY
PERRINE, JOHN PERRINE, JARED LINKENAUGER, CHRIS SMITH, JESSE ADKINS,
ERIC MULL, CAROL EPPERLY, and DALE EPPERLY are all residents of Putnam, Wayne
and/or Kanawha Counties of West Virginia, within the Southern District of West Virginia.”
(ECF 1 at 2.) Aside from Carol and Dale Epperly, there is no other specific reference to the
remaining individual Defendants anywhere in the Complaint. Rather, there are references that
Defendant Cosby “in conspiracy, consort, and agreement with the remaining defendants herein”
removed property from the leased office space. (Id. at 4.) Similarly, none of the specific counts
reference a specific Defendant, but rather refer only to “Defendants” as a collective group. There
are no factual allegations regarding how Defendants Perrine, Linkenauger, Smith, Adkins, and
Eric Mull fit in to this story in any way.

Plaintiffs have alleged the type of unadorned,

the-defendant-unlawfully-harmed-me accusations that the Supreme Court has condemned under
Iqbal and Twombly.

Because Plaintiffs have alleged a civil rights conspiracy, heightened

pleading standards apply. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and

13

Defenses § 1.06 (4th ed. 2004). Additionally, to the extent that Plaintiffs’ claim is predicated on
42 U.S.C. § 1985, as they so claim, this claim is plainly not adequately pleaded. Francis v.
Giacomelli, 588 F.3d 186, 196–97 (4th Cir. 2009) (stating that to plead a violation of § 1985, the
plaintiffs must demonstrate with specific facts that the defendants were motivated by a specific
class-based, invidiously discriminatory animus to deprive the plaintiffs of the equal enjoyment of
rights secured by the law to all). While a complaint need not contain detailed factual allegations,
it must have more than naked assertions devoid of further factual enhancement. Iqbal, 556 U.S. at
678. As the Complaint is currently written, it is likely fail to meet minimum pleading standards in
several respects upon a timely challenge by Defendants or the Court’s sua sponte ruling.
Similarly, there is the not insubstantial question whether the civil rights claim is frivolous.
As stated the claim is vaguely pleaded. Also, it is pleaded on the averment of counsel that the
claim is likely to have evidentiary support after counsel has had an opportunity for investigation
and discovery. Federal Rule of Civil Procedure 11(b)(3) provides for such pleading of claims. 2
The Court observes, however, that Plaintiffs filed their Complaint in this Court in late April 2013,
more than a year after the February 2012 alleged incident. Moreover, this matter has been the
subject of not one, but two state court proceedings in which Plaintiffs should have had an ample
opportunity for discovery. Further, in the course of this federal case, amended pleadings were

2

Rule 11(b)(3) provides:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other
paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented
party certifies that to the best of the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:
***
(3) the factual contentions have evidentiary support or, if specifically so identified, will
likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
...

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due December 15, 2013. Plaintiffs have failed to amend their Complaint. Based on the docket
in this case, there has been no activity since late November 2013 and the deadline for discovery
requests closes in a month. Plaintiffs’ failure to amend their Complaint suggests either that they
have uncovered no evidence to support their claim, or that they have simply been dilatory, or both.
Even if the Court were to find that the claim, as stated or, perhaps, with a future amendment
to the Complaint, satisfies federal pleading standards, its merits have been vigorously challenged
by Defendants in the motion to dismiss, to which Plaintiffs have offered no real response. The
state and federal litigation history causes the Court concerns about the legitimacy of the claim in
part because without this claim this Court could not have assumed jurisdiction over this case. In
light of these concerns, the parties are directed to file briefing and appropriate motions as herein
ordered.
IV.

CONCLUSION

For the reasons stated, the Court DENIES Defendants’ motion to dismiss and to abstain
[ECF 5]. The Court DIRECTS the parties, including Defendant Cosby, to submit briefing and
file appropriate motions on or before April 15, 2014, addressing the adequacy of Plaintiffs’
Complaint and the issues raised by the Court sua sponte.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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March 14, 2014