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Perry v. Isle of Wight County

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

April 20, 2016

LISA T. PERRY, Plaintiff,
v.
ISLE OF WIGHT COUNTY and DELORES DARDEN, Defendants.

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, UNITED SLATES DISTRICT JUDGE

Before the Court is Defendant Dclores Darden's ("Defendant Dardcm) Motion to Dismiss Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). Having carefully considered the Parties' pleadings, this matter is now ripe for judicial determination. For the reasons set out below, Defendant Dardcn's Motion to Dismiss is GRANTED.

I. FACTS & PROCEDURAL HISTORY

On or about May 2, 2014, Lisa Perry ("Plaintiff"), former Economic Development Director for Isle of Wight County, suffered an injury causing her to miss a significant amount of work. Am. Compl. ¶¶ 10-11, ECF No. 16, As a result, Plaintiff was granted medical leave through the Federal Medical Leave Act ("FMLA" 29 U.S.C. § 2601) and Isle of Wight's policy. Id. at ¶ 11. On August 4, 2014, Plaintiff returned to work and was informed that she was terminated as of August 1, 2014 for failing to return to work on the designated date, Id. at ¶¶ 11, 23, Subsequent to the termination, Defendant Dardcn made the following statements to The Tidewater News:

a) "Perry was due back to work last Friday, but she didn't show up or let anyone know why."
b) "Part of the leave agreement was that not returning to work as agreed mean that the job would not be held for her."

Id. at ¶ 26.

Plaintiff filed her Complaint against Defendants Isle of Wight County and Delores Darden (collectively "Defendants") in the Circuit Court for the County of Isle of Wight, Virginia seeking damages under the FMLA and Virginia common law for defamation and defamation per se. Ex. 1, ECF No. 1. On May 12, 2015, Defendants removed this action to United States District Court for the Eastern District of Virginia. Notice of Removal, ECF No. 1.

On May 13, 2015, Defendant Darden filed a Motion to Dismiss Counts Three and Four of the Complaint pursuant to Rule 12(b)(6) asserting that Plaintiff failed to state a claim upon which relief can be granted. ECF No. 6. On October 13, 2015, the Court granted Defendant Darden's Motion to Dismiss but granted Plaintiff leave to amend her Complaint. ECF No. 15.

On October 28, 2015, Plaintiff filed her Amended Complaint. ECF No. 16. On November 11, 2015, Defendant Darden filed the instant Motion to Dismiss Amended Complaint again requesting dismissal of Counts Three and Four pursuant to Rule 12(b)(6). ECF No. 18. On November 23, 2015, Plaintiff filed her Opposition. ECF No. 21.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of actions that fail to state a claim upon which relief can be granted. For purposes of a Rule 12(b)(6) motion, courts may only rely upon the complaint's allegations and those documents attached as exhibits or incorporated by reference. Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). Courts will favorably construe the allegations of the complaint and assume that the facts alleged therein are true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court "need not accept the legal conclusions drawn from the facts nor accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc., v. J. D. Assocs. Lid. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). A complaint need not contain "detailed factual allegations" in order to survive a motion to dismiss, but the complaint must incorporate "enough facts to state a belief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544. 555 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). This plausibility standard does not equate to a probability requirement, but it entails more than a mere possibility that a defendant has acted unlawfully. Ashcrofl v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).

III. DISCUSSION

In order to maintain an action for defamation under Virginia law, the plaintiff must show that the defendant (1) published (2) an actionable statement (3) with the requisite intent. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) {citing Gazette, Inc. v.Harris. 229 Va. 1, cert. denied, 472 U.S. 1032 (1985)). Neither party contests that the statements at issue were published in The Tidewater News. In Counts Three and Four, Plaintiff alleges that Defendant Darden made false and defamatory statements that injured Plaintiff in her profession. Am. Compl. ¶¶ 44, 50. Plaintiff argues that these statements were made in bad faith and with actual malice. Id. at ΒΆ 46. In her Motion ...


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