United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
ROBERT G. DOUMAR, Senior District Judge.
This matter comes before the Court upon the Notice of Demurrer and Plea in Bar or, in the Alternative, Motion to Dismiss ("Notice of Demurrer and Plea in Bar") filed by Ardelle Associates Inc. ("Ardelle"). ECF No. 6. This Notice requested the Court to consider the Demurrer and Plea in Bar that were undecided and pending in state court when the case was removed to this Court. On June 11, 2015, the Court held a hearing at which counsel for Ardelle and Sheryl McCray ("Plaintiff") appeared and argued their respective positions. At the hearing, the Court GRANTED the Notice of Demurrer and Plea in Bar, CONVERTED Ardelle's Demurrer and Plea in Bar into a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), GRANTED the Rule 12(b)(6) Motion to Dismiss, and DISMISSED all of Plaintiff's claims against Ardelle. The Court now memorializes its reasons herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual History
The following summary is taken from factual allegations contained in Plaintiff's Amended Complaint, which, for purposes of ruling on the instant Motion to Dismiss, the Court accepts as true.
This case arises from an allegedly hostile work encounter involving Plaintiff in September 2012. At the time, Plaintiff was employed by Ardelle and/or Infused Solutions, LLC ("Infused") at a United States Army Recruiting Center in Hampton, Virginia. Compl. ¶¶ 2, 4, 5. On September 20, 2012, Plaintiff had a work dispute with a colleague, Sergeant First Class Jonah Jancewicz. Id . ¶ 7. During this dispute, Plaintiff claims that Sergeant Jancewicz verbally assaulted and physically intimidated her. Id . ¶¶ 8, 9. Plaintiff reported the incident to her supervisor later that day. Id . ¶ 10. On September 24, Plaintiff filed a complaint against Sergeant Jancewicz and learned that he had also filed a complaint against her. Id . ¶¶ 11, 12. On September 26, Jamie Baker, an employee of Infused, called Plaintiff to discuss the incident. Id . ¶¶ 13, 16, 17. Ms. Baker informed Plaintiff that she was Plaintiff's reporting official and that, as a result of the incident on September 20, Plaintiff was going to be placed on 90-day probation. Id . ¶¶ 13, 14. Ms. Baker also indicated that another Infused employee had already warned Plaintiff about her prior misconduct, which Plaintiff insisted had never happened. Id . Later that day, Ms. Baker sent Plaintiff a final warning notice, which stated that Plaintiff was being disciplined for insubordination and that Plaintiff had consistently exhibited such misconduct. Id . ¶ 17. On September 28, Plaintiff sent an email to Ms. Baker challenging that characterization of her behavior and asked for paperwork concerning these statements. Id . ¶ 20. On October 4, 2014, Plaintiff received a termination notice from her supervisor stating that Plaintiff was being fired for violating the workplace violence policy. Id . ¶ 23.
B. Procedural Background
On May 3, 2013, Plaintiff brought a defamation action in federal court against Sergeant Jancewicz, Ardelle, Infused, Jamie Baker, the United States Army Recruiter Command, a John Doe, and a Jane Doe in connection with her reprimand and termination. Case No, 4:13cv60, ECF No. 1. Subsequently, the Court granted Ardelle's Motion to Dismiss for Failure to State a Claim. Id., ECF No. 27. On April 17, 2014, the Court dismissed the remaining claims for lack of jurisdiction. Id., ECF No. 45.
On August 7, 2014, Plaintiff filed the instant action against Ardelle, Infused, Ms. Baker, Sergeant Jancewicz, a John Doe, and a Jane Doe in Hampton Circuit Court. See ECF No. 1, Ex. 1 at 2-13. Plaintiff brings a defamation claim against Ardelle, Infused, Ms. Baker, and Sergeant Jancewicz, as well as a wrongful termination action against Ardelle and Infused. On October 29, 2014, Ardelle filed a Demurrer and Plea in Bar asserting that Plaintiff's defamation claim was barred by the statute of limitations and that she had failed to state a claim for defamation and wrongful termination under Virginia law. ECF No. 6-1. Plaintiff filed an Opposition on November 17, 2104, and Ardelle filed a Reply on December 3, 2014.
However, before the state court could rule on the motions, on December 2, 2014, the United States removed the case to federal court pursuant to the U.S. Attorney's certification under 28 U.S.C. § 2679(d)(2). ECF No. 1. Consequently, the case was brought before this Court, and the United States was substituted for Sergeant Jancewicz as a defendant. ECF No. 2. Following removal, the Government filed an unopposed Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 3. On January 17, 2015, Ardelle filed the instant Notice of Demurrer and Plea in Bar. ECF No. 6. The Court granted the Government's Motion to Dismiss on April 7, 2015, ECF No. 11, and found no independent grounds for federal jurisdiction-remanding the case to the state court. However, on May 1, 2015, the Court granted Ardelle's and Infused's Motion for Reconsideration and removed the case back to federal court. ECF No. 13. On June 10, 2015, Plaintiff filed an Information to the Court and Request for Incorporation of Plaintiff's Pleadings Filed of Record in Hampton Circuit Court ("Information and Request"). ECF No. 19. On June 11, 2015, the Court held a hearing at which counsel for Ardelle and Plaintiff appeared and argued their respective positions regarding Ardelle's Notice of Demurrer and Plea in Bar. At the conclusion of the hearing, the Court converted Ardelle's Demurrer and Plea in Bar into a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) and granted the Motion to Dismiss, dismissing all of Plaintiff's claims against Ardelle. The Court now memorializes its reasons herein.
II. NOTICE OF DEMURRER AND PLEA IN BAR
Ardelle's Notice of Demurrer and Plea in Bar requested the Court to consider its Demurrer and Plea in Bar, which were undecided and pending in state court when the case was removed. Ardelle's Plea in Bar asserted that Plaintiff's defamation claim was barred by the statute of limitations, which Ardelle maintained had already run. Ardelle's Demurrer contended that Plaintiff's Complaint failed to state a claim for defamation and wrongful discharge. In the alternative, Ardelle requested that its Demurrer and Plea in Bar be converted into a Rule 12(b)(6) Motion to Dismiss.
First, the Court had to consider whether it could rule on pending state motions filed prior to the removal of the case, without requiring the moving party to refile the motions in the federal court. Language in the Federal Rules of Civil Procedure indicates that the Court could consider such motions. Rule 81 expressly states that "[a]fter removal, repleading is unnecessary unless the court orders it." Fed.R.Civ.P. 81(c)(2). This Rule also provides specific guidelines for filing answers or "other defenses" when the defendant did not do so before removal. Id . ("A defendant who did not answer before removal must answer or present other defenses or objections under these rules...."). The obvious implication of this language is that a party need not refile pending state motions in the federal court. See also 77 C.J.S. Removal of Cases § 192 (2015) ("Where a cause [sic] is removed from a state court to a federal district court while a motion theretofore made is pending, such motion is transferred with the record to the federal court, to be determined by that court."). Accordingly, the Court concluded that it could rule on motions pending in the state court upon removal, without requiring the motions to be refiled.
Nevertheless, "federal procedural rules govern a case that has been removed to federal court." Smith v. Bayer Corp., 131 S.Ct. 2368, 2374 n.1 (2011); see Fed.R.Civ.P. 81(c)(1) ("These rules apply to a civil action after it is removed from a state court."). As a result, the Court CONVERTED Ardelle's Demurrer and Plea in Bar into a Motion to Dismiss under Federal Rule of Procedure 12(b)(6). However, although federal procedural law applied, state law applied to govern the substantive claims. See United States v. St. Louis Univ., 336 F.3d 294, 300 (4th Cir. 2003) ("The [Federal Tort Claims] Act requires the government's liability to be determined in ...