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Charles v. Front Royal Volunteer Fire & Rescue Dep't, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

May 13, 2014

PHILIP A. CHARLES, et al., Plaintiffs,

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For Philip A. Charles, David M. Ellinger, Plaintiffs: Caleb Kershner, Daniel James Hebda, Harold Robert Showers, Timothy Paul Bosson, LEAD ATTORNEYS, Simms-Showers, L.L.P., Leesburg, VA.

For Front Royal Volunteer Fire and Rescue Department, Inc., David Santmyers, in his official capacity as President of the Department and in his individual capacity, Defendants: Dawn Elizabeth Boyce, LEAD ATTORNEY, Bancroft, McGavin, Horvath & Judkins PC, Fairfax, VA.

For Frederick County Sheriff's Office, Defendant: Roderick B. Williams, LEAD ATTORNEY, Office of the County Attorney, County of Frederick, Winchester, VA.


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Hon. Michael F. Urbanski, United States District Judge.

This matter is before the court on defendants Front Royal Volunteer Fire and Rescue Department, Inc., (" the Fire Department" ) and David Santmyers' (" Santmyers" ) motion to dismiss, in part, the claims of plaintiffs Philip A. Charles (" Charles" ) and David M. Ellinger (" Ellinger" ). Dkt. No. 5. In their complaint, plaintiffs allege violations of the Free Speech Clause of the 1st Amendment and the Due Process Clause of the 14th Amendment (Count I), ultra vires actions on the part of the Fire Department (Count II), and defamation of Ellinger by Santmyers (Count III). In their motion, defendants assert that the due process claims of Count I, Charles' claim under Count II, Ellinger claims for non-injunctive relief under Count II, and all of Count III should be dismissed. For the reasons stated herein, the court will GRANT in part and DENY in part defendants' motion. Specifically, the court will dismiss the due process claims of Count I, but will grant plaintiff Ellinger's leave to amend his due process claims based on a protected property interest. The court will also dismiss Charles' claim under Count II. The remainder of defendants' motion shall be denied.


The facts alleged in the complaint are as follows: the Fire Department is a Virginia non-stock corporation organized in the Commonwealth of Virginia and a state actor. Santmyers is the President of the Fire Department. Charles was a member of the Fire Department and also served as the Secretary of the Corporation. Ellinger is a member of the Fire Department and also served as Treasurer. The complaint specifically alleges that members can only be removed " for cause." Compl., Dkt. No. 1, at ¶ 39. Additionally, as members, both plaintiffs were entitled to certain benefits: an unspecified tax exemption provided to volunteer firepersons, a car decal, the use of Fire Department facilities, and " similar related benefits." As Treasurer, Ellinger was entitled to an additional benefit of $300 in annual compensation. Id. at ¶ 42.

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Beginning in 2011, plaintiffs became concerned about reductions in Fire Department resources. They were particularly concerned with a " Cost-Recovery Program," which was designed to allow Warren County to recover funds for use of Fire Department resources. The Fire Department was supposed to receive a share of those funds, and plaintiffs grew concerned that the Fire Department was not receiving its " fair share of compensation." Id. at ¶ ¶ 17, 21. When plaintiffs raised these concerns, they faced " staunch resistance" fro some other Board members, including President Santmyers. " Due to the harsh reaction of the Board and the President, [Charles] resigned from his secretary position during the summer of 2012." Id. at ¶ 18. In March 2013, Charles invited a local newspaper reporter to attend a public meeting of the Fire Department, at which the funding and resources situation of the Department were discussed. At about the same time, Charles approached a member of the Front Royal Town Council, again raising the issue of lack of funding and the concomitant inadequacy of Fire Department resources. Additionally, Charles, with Ellinger's assistance, directed a Freedom of Information of Request to Warren County seeking information related to the Cost Recovery Program.

Plaintiffs allege that, in response to these actions, the Fire Department and President Santmyers removed Charles as a member. Plaintiffs further allege that the removal was based on " trump[ed] up false charges" and was not done in conformity with the Fire Department's bylaws. Id. at ¶ 22. Ellinger sent a letter to the Board on June 18, 2013, outlining his opposition to Charles' removal and resigned as Treasurer. He alleges that he " felt forced to resign his office of Treasurer because of the inappropriate Board actions." Id. at ¶ 23. Plaintiffs further allege that, in response to this letter, Ellinger was suspended from membership for sixty days and that the suspension coincided with " numerous baseless allegations" against Ellinger. Id. at ¶ 24. Moreover, plaintiffs allege that the Fire Department has simply " continued the suspension indefinitely" despite " numerous opportunities to have a vote on [his] membership status" in violation of the Fire Department's governing documents. Compl., Dkt. No. 1, at ¶ ¶ 26, 41.

Finally, plaintiffs allege that Santmyers sent a letter to Ellinger's employer, the Sheriff of Fredrick County, in a " clear attempt to defame [him] and cost him his job." Id. at ¶ 25. Specifically, plaintiffs claims that Santmyers knowingly made false statements as to Ellinger acquiring free paint for his personal use under false pretenses and attempting to " trick the staff" as to the grade of oil to be used in " the Department's apparatus." Id. at ¶ ¶ 53-54.


" 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A plaintiff's well-plead factual allegations, while assumed to be true, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997), " must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 570. " [Additionally], the tenet that a court must accept as true all of the allegations contained in a complaint is ...

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