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Novak v. Harper

United States District Court, E.D. Virginia, Richmond Division

September 17, 2014

WENDY NOVAK, Plaintiff,
STEPHEN T. HARPER, in His Capacity As Administrator of the Estate of JERMAINE BURTON, et al., Defendants.


ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on the defendant Onzie Luke's RULE 12(b)(1) MOTION TO DISMISS (Docket No. 9). For the reasons set forth herein, the motion will be granted and Count VII will be dismissed.


On May 29, 2014, Wendy Novak filed a Complaint against Stephen T. Harper as Administrator of the Estate of Jermaine Burton, Onzie Omara Luke, and Michael L. Wade, Henrico County Sherriff alleging various constitutional, statutory, and common law violations. (Dkt. No. 1). The facts as stated in the complaint allege that Novak was confined in the Henrico County Regional Jail East on May 29, 2013. ¶¶ 1, 21. On that day, she was sexually assaulted in the women's restroom by Jermaine Burton who was employed as a guard at the jail. ¶¶ 21-24.

At the time of the assault, Luke was employed by Henrico County as a Mental Health Worker and was stationed at the Henrico County Regional Jail East. ¶ 8. According to the Complaint, Luke's duties included "counseling inmates, developing trust-based relationships with inmates, and investigating criminal activities at the Jail." ¶ 8. Novak alleges that, while Luke was employed at the Jail, she was "engaged in an ongoing sexual relationship with Deputy Jermaine Burton." ¶ 26.

After the assault, Novak informed jail staff members about the misconduct and was taken to Luke for an interview and counseling. ¶¶ 31-32. The Complaint alleges that Luke then "accused Ms. Novak of lying... and otherwise verbally assaulted her" during that session. ¶ 34.

The only claim asserted against Luke in the Complaint is Count VII which alleges a claim for Intentional Infliction of Emotional Distress stemming from the post-assault interview. 1176-80. The Complaint states that Luke's "conduct in using her role as a counselor to berate, belittle, and otherwise verbally abuse Ms. Novak after her rape was intentional and reckless... outrageous and intolerable... [and caused Plaintiff] to suffer severe emotional distress." ¶¶ 76-79. Novak seeks compensatory damages in the amount of $2, 000, 000.00 and punitive damages in the amount of $350, 000.00. ¶ 80.

Luke has filed both a Motion to Dismiss for Lack of Jurisdiction under Rule 12(b)(1) (Dkt. No. 9) and a Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6) (Dkt. No. 11). The challenge to subject matter jurisdiction asserted in the motion under Rule 12(b)(1) must be addressed first. Sucampo Pharms., Inc. v. Astellas Pharma, Inc. , 471 F.3d 544, 548 (4th Cir. 2006) (citing Ruhrgas AG v. Marathon Oil, Inc. 526 U.S. 574 , 583 (1999)).

In her motion, Luke alleges that, because she and Novak are both citizens of Virginia and because the only claim against her arises under Virginia state law and does not share a common nucleus of operative fact with the pending federal law claims made against the other defendants, the Court does not have subject matter jurisdiction over the claim against her and must dismiss it. Alternatively, she argues that this Court should decline to exercise its supplementary jurisdiction for policy-based reasons. Plaintiff responded (Dkt. No. 13) and Luke Replied (Dkt. No. 15), and the motion is ripe for disposition.


A party may file a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). If a court finds that is does not have subject matter jurisdiction over the case or controversy, it must dismiss the action. Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006). Of course, the plaintiff bears the burden of establishing that federal jurisdiction is proper. Warren v. Sessoms & Rogers, P.A. , 676 F.3d 365, 371 (4th Cir. 2012).

Challenges to subject matter jurisdiction may be made in two ways. First, a facial challenge to jurisdiction may be made by arguing that the complaint does not allege facts that permit the exercise of federal subject matter jurisdiction. See Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009). If that type of challenge is raised, the court must assume that all facts alleged in the complaint are true. Id . Second, the challenge can be made under the theory that the complaint's assertion of subject matter jurisdiction is not true. Id . (quoting Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982)). In that event, a court may consider evidence outside the pleadings. Id . Luke raises a challenge of the first sort in this motion.

28 U.S.C. §1367 states that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action that they form part of the same case or controversy under Article III of the United States Constitution." Thus, "once a district court [has] valid jurisdiction over a federal claim, it could, in its discretion, exercise supplemental jurisdiction over additional state law claims if they arose out of a common nucleus of operative fact.'" White v. Cnty of Newberry , 985 F.2d 168, 171 (4th Cir. 1993) (quoting United Mine Workers v. Gibbs , 383 U.S. 715, 725 (1966)). Supplemental jurisdiction exists if "the state and federal claims... derive from a common nucleus of operative fact... [I]f, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." Gibbs , 383 U.S. at 725. The "common nucleus of operative ...

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