United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Defendants GoBo, Inc.
(“GoBo1”) and Gobo2, Inc.'s
(“GoBo2”) motion to dismiss Plaintiff's
Amended Complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Dkt. 5). The Amended Complaint contains
two counts. The first Count alleges employment discrimination
and retaliation in violation of Title I of the Americans with
Disabilities Act (“ADA”) under 42 U.S.C. §
12112. (Dkt. 7-2 ¶ 1). The second Count alleges
fraudulent and voluntary conveyance under Va. Code
§§ 55-80, 55-81. (Dkt. 7-2 at ECF 16). The motion
will be denied. A prior settlement agreement between GoBo1
and Plaintiff does not bar this action, Plaintiff has
adequately pled the fraudulent and voluntary conveyance claim
under Virginia state law, and, applying the equitable
doctrine of laches, Plaintiff joined GoBo2 in a reasonable
time frame after learning about its existence.
action was filed originally in state court on December 15,
2014, naming GoBo1 as the sole defendant. (Dkt. 7-2 ¶
9). That case was the subject of an order of nonsuit on
October 13, 2015. (Id. ¶ 10). Plaintiff then
re-filed the action on March 30, 2016. (Id. ¶
11). On November 2016-eight months after Plaintiff's
original complaint was filed-Plaintiff discovered GoBo2
existed. (Dkt. 7-2 ¶ 8). GoBo2 had been formed on
December 23, 2013, and at some point thereafter, the assets
of GoBo1 were transferred to GoBo2, effectively rendering
GoBo1 insolvent. (Dkt. 7-2 ¶ 47). Upon learning of the
existence of GoBo2 in November of 2016, Plaintiff sought
leave to file an Amended Complaint in state court in order to
join GoBo2 as a defendant, (id. ¶ 12), and the
Virginia state court granted that motion (dkt. 1-3 at ECF 1).
Plaintiff then filed an Amended Complaint and Jury Demand on
December 15, 2016. (Dkt. 10 at 2). On December 16, 2016,
Defendants filed for removal to this Court on the grounds of
federal question jurisdiction under 42 U.S.C. §§
1981(a), 12117. (Dkt. 1 at 1).
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
legal sufficiency of a complaint to determine whether the
plaintiff has properly stated a claim; “it does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of North Carolina v. Martin, 980
F.2d 943, 952 (4th Cir. 1992). Although a complaint
“does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds'
of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
need not “accept the legal conclusions drawn from the
facts.” Eastern Shore Markets, Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Factual allegations must be enough to raise a right to
relief above the speculative level, ” Twombly,
550 U.S. at 555, with all allegations in the complaint taken
as true and all reasonable inferences drawn in the
plaintiff's favor. Chao v. Rivendell Woods,
Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6)
does “not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. Consequently, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679
Facts as Alleged
employed Plaintiff from May 10, 2010, until April 18, 2013,
as a Biscuit Maker at a Bojangles restaurant in Lynchburg,
Virginia. (Dkt. 7-2 ¶¶ 15, 21). Defendants are two
Virginia corporations-GoBo1 and GoBo2. (Id.
¶¶ 5-6). When Plaintiff worked at Bojangles, GoBo1
controlled and operated two Bojangles restaurant locations;
Plaintiff worked at one of these locations. (Id.
¶ 4). On February 13, 2013, Plaintiff sustained an
injury to her left knee while performing her work duties.
(Id. ¶ 17). This injury required Plaintiff to
receive medical treatment, use physical aids, and take
prescription medication. (Id. ¶ 17). Plaintiff
alleges that the injury constituted a disability under the
ADA. (Id. ¶ 18).
April 18, 2013, Plaintiff was terminated from her employment
at Bojangles. (Dkt. 7-2 ¶ 21). When Plaintiff sought an
explanation for her termination, Defendants' owner, Phil
Lynch, failed to provide one and said that Plaintiff's
services were “no longer needed.” (Id.).
She was replaced by a person who did not suffer from a
disability or need an accommodation. (Id. ¶
23). Plaintiff alleges that because of the absences and
accommodations needed at work as a result of her injury,
GoBo1 viewed Plaintiff as a “malingerer” who
tried to avoid regularly scheduled work. (Dkt. 7-2 ¶
20). She claims that GoBo1 retaliated against her because of
her disability by reducing her hours, holding her to
unreasonable work expectations, singling her out for
disparate discipline, using her disability as a negative
factor in considering her job performance, and ultimately,
terminating her based on manufactured and false grounds.
(Dkt. 7-2 ¶ 20).
December 23, 2013, GoBo2 was formed, and all of Defendant
GoBo1's assets were transferred to GoBo2, rendering GoBo1
insolvent and judgment-proof. (Dkt. 7-2 ¶¶ 46-47).
Plaintiff alleges that this transfer of assets was done with
the knowledge of Plaintiff's claims against GoBo1 and
with the intention of avoiding paying any judgment to
Plaintiff. (Dkt. 7-2 ¶ 48).
discrimination and retaliation prohibited by the ADA,
Plaintiff seeks reinstatement to her former position or a
position of comparable duties and responsibilities with equal
pay and benefits. (Dkt. 7-2 at ECF 17). She seeks a permanent
injunction enjoining Defendants from violating her rights
under the ADA. (Id.). Additionally, Plaintiff seeks
back pay, front pay, prejudgment interest, and recovery for
lost employment benefits up to $75, 000. (Id.).
Furthermore, Plaintiff seeks compensatory damages under the
ADA, reasonable attorney's fees and costs, damages to
offset the adverse tax consequences of receiving the award in
a lump sum, and interest on the pre- and post-judgment sums.
(Id. at ECF 18). Because of the conveyance of
GoBo1's assets to GoBo2, Plaintiff seeks an order setting
aside the conveyance and directing GoBo2 to compensate
Plaintiff from the funds derived from the conveyance.
Analysis of Motion to Dismiss
jurisdiction exists over Plaintiff's state law claims
because the alleged facts bearing on Plaintiff's federal
claim and the facts that could establish recovery for
Plaintiff's state law claims revolve around a central
fact pattern and a common nucleus of operative fact.
See 28 U.S.C. § 1367(a); United Mine
Workers v. Gibbs, 383 U.S. 715, 725 (1966); United
States ex rel. Bunk v. Gov't Logistics N.V., 842
F.3d 261, 272 (4th Cir. 2016) (exercising supplemental
jurisdiction over a successor liability claim when facts
establishing False Claims Act claim served as foundation for
defendant's liability as a successor corporate entity).
jurisdiction here is supplied by Plaintiff's ADA claim.
The facts used to establish a successor liability theory of
recovery for violation of the ADA would be similar to those
establishing Plaintiff's state law claims: The Fourth
Circuit's successor liability analysis and Virginia's
fraudulent and voluntary conveyance statutes have similar
elements involving similar badges of fraud. Id. at
273-74, 76; United States v. Carolina Transformer
Co., 978 F.2d 832, 838 (4th Cir. 1992); Buchanan v.
Buchanan, 266 Va. 207, 211 (2003); Fox Rest Assocs.,
L.P. v. Little, 282 Va. 277, 285 (2011); see also
infra Section IV.C.1. Thus, if Plaintiff can establish
GoBo2's liability as a successor corporate entity (in
order to recover under the ADA), she could use similar
evidence to establish her state law claims. Gov't
Logistics, 842 F.3d at 272 (stating that claims
“need only revolve around a central fact
pattern”). Accordingly, supplemental jurisdiction