Brown v. Davis H. Elliot Construction Company, Inc. et al

Filing 8

MEMORANDUM OPINION AND ORDER granting defendant Davis H. Elliot Construction Company, Inc.'s 4 MOTION to Dismiss; and this case is DISMISSED without prejudice. Signed by Judge Joseph R. Goodwin on 2/27/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CHESTER BROWN,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-cv-12749

DAVIS H. ELLIOT CONSTRUCTION
COMPANY, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is the defendant Davis H. Elliot Construction
Company, Inc.’s Motion to Dismiss [ECF No. 4]. The plaintiff has not filed a timely
response. For the reasons discussed below, the Motion is GRANTED.
I.

Background
On November 23, 2016, the plaintiff originally filed this case in the Circuit

Court of Kanawha County, West Virginia. Notice of Removal Ex. 2, at 5 [ECF No. 12] (“Complaint”). On December 30, 2016, Davis H. Elliot Construction Company, Inc.
(“the defendant”) timely filed its Notice of Removal. See Notice of Removal 2 [ECF
No. 1].1

The second defendant, John Doe, is disregarded for the purposes of citizenship considerations under
the court’s diversity jurisdiction analysis. 28 U.S.C. § 1441(b)(1) (“In determining whether a civil action
is removable on the basis of jurisdiction under section 1332(a) of this title, the citizenship of defendants
sued under fictitious names shall be disregarded.”).
1

The Complaint offers few details regarding the alleged facts of the case, but
the general basis of the plaintiff’s claims stems from the following assertions:
Plaintiff was sent to West Virginia for a contract job of [sic] Wheeling
Power Company, Inc. and/or Appalachian Power Company d/b/a
American Electric Power, and Ohio Corporation that was unsafe.
Plaintiff was terminated after one employee was injured on the job, and
another employee was killed due to the negligence of DHE. Defendants
retaliated against Brown for offering truthful testimony, assisting in the
investigation, complaining about safety concerns and his age.
Compl. ¶¶ 8, 9. The Complaint enumerated twenty-one separate counts against the
defendant.2 The defendant argues that the Complaint should be dismissed for failing
to state a claim pursuant to Rule 12(b)(6) and Rule 8(a)(2) of the Federal Rules of
Civil Procedure. As noted above, the plaintiff has not responded to the defendant’s
Motion.
II.

Legal Standard
Rule 8(a)(2) of the Federal Rule of Civil Procedure requires that a pleader

provide “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure
permits a defendant to challenge a complaint when it “fail[s] to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Application of the Rule 12(b)(6)
standard requires that I “accept as true all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Alt. Corp. v.

The plaintiff’s counsel incorrectly numbered the counts in the Complaint. Instead of thirty-two
counts, the Complaint enumerates twenty-one separate counts.
2

2

Twombly, 550 U.S. 544, 555-56 (2007)). Rule 8 “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
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.” A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of “entitlement to relief.”

Id. at 678. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” are an insufficient basis to state a claim. Id. “A pleading
that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (citations omitted).
III.

Discussion
The court readily agrees with the defendant’s characterization of the

Complaint:
Plaintiff’s Complaint, in this matter, is nothing more than a collection
of conclusory, threadbare recitals connected to conclusory statements.
In fact, every single allegation asserted by the Plaintiff in this matter is
simply a conclusory legal allegation unsupported by facts. Plaintiff fails
to identify the alleged date of termination, the date of the alleged
incident giving rise to the termination, the age of the Plaintiff, how and
in what manner the Defendant took actions against him. In short, the
Complaint in this matter could not fit better into the dismissal
framework associated with the Twombly/Iqbal and/or Malone
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standards. This can be stated for each and ever[y] Count asserted by the
Plaintiff.
Def.’s Mem. 5 [ECF No. 5]. Accordingly, the court FINDS that the plaintiff has failed
to state a claim upon which relief can be granted.
IV.

Conclusion
For the reasons provided above, the court ORDERS that the defendant Davis

H. Elliot Construction Company, Inc.’s Motion to Dismiss [ECF No. 4] is GRANTED,
and this case is DISMISSED without prejudice.
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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February 27, 2017