United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION TO DISMISS &
DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED
E. Hudson United States District Judge
Benton ("Plaintiff), acting pro se, brought
this action against Phillips Edison & Co., Ltd.
("Defendant") alleging that Defendant breached the
terms of Plaintiffs commercial lease, violated the Federal
Trade Commission Act, and violated various provisions of the
Virginia Code. This matter is before the Court on
Defendant's Motion to Dismiss Under Rule
12(b)(6) (ECF No. 7), filed on October 20, 2017,
and Plaintiffs Motion for Leave to File Second Amended
Complaint ("PI. Mot., " ECF No. 12), filed on
October 27, 2017. Although Plaintiff did not file either a
response to the Motion to Dismiss or a reply in support of
her Motion for Leave to File Second Amended Complaint, the
Court finds that the facts and legal contentions are
adequately presented in the materials before it, and oral
argument would not aid in the decisional process. E.D. Va.
Local Civ. R. 7(J). For the reasons stated herein,
Defendant's Motion to Dismiss will be granted, and
Plaintiffs Motion for Leave to File Second Amended Complaint
will be denied.
required by Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court assumes Plaintiffs well-pleaded
allegations to be true and views all facts in the light most
favorable to her. T.G. Slater & Son v. Donald P.
& Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)). Legal conclusions, however,
enjoy no such deference. Ashcroftv. Iqbal, 556 U.S.
662, 678 (2009).
the district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6). The court may,
however, consider "documents incorporated into the
complaint by reference, " Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), as
well as documents attached to a motion to dismiss, so long as
they are integral to or explicitly relied upon in the
complaint, and the authenticity of such documents is not
disputed. United States ex re I. Oberg v. Pa. Higher
Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir.
2014); Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d
176, 180 (4th Cir. 2009). In this case, the lease Plaintiff
executed with Ashland Junction, L.C., the lease-amendment
documents, and the notification Plaintiff received from
Defendant telling her that her lease was ending
("Termination Notice") are all incorporated into
the Complaint by reference, and they are additionally
attached to both the Motion to Dismiss and Plaintiffs
proposed Second Amended Complaint. Neither party disputes the
authenticity of these documents, and so the Court will
consider them for purposes of resolving the motions before
through this lens, the facts are as follows.
2012, Plaintiff entered into a lease with Ashland Junction,
L.C., to rent commercial space in Ashland Junction Shopping
Center in Ashland, Virginia ("Lease"). (ECF Nos.
8-1, 12-1.) Plaintiff and Ashland Junction, L.C. executed
three subsequent lease renewal amendments ("Lease
Amendments") in 2013, 2014, and 2015. (ECF Nos. 8-2,
8-3, 8-4, 12-3, 12-4, 12-5.) The Third Lease Amendment,
executed in 2015, extended the term of the Lease through
August 31, 2017. (ECF Nos. 8-4, 12-5.)
time the original Lease was executed, Ashland Junction, L.C.
was registered as a Virginia limited liability company. In
February of 2016, Ashland Junction L.C. domesticated in the
state of Delaware and changed its name to Ashland Junction,
LLC. The new entity, Ashland Junction LLC, assumed all the
rights and obligations of Ashland Junction L.C, including all
rights and obligations assigned to the Landlord in Plaintiffs
Lease. (See Termination Notice, ECF No. 12-8
(referring to Ashland Junction, LLC as successor-in-interest
to Ashland Junction, L.C.).)
August 22, 2017, in its capacity as the property management
agent for Ashland Junction LLC, Defendant sent Plaintiff a
Termination Notice reminding her that the Lease was set to
expire on August 31, 2017. (Id.) The Termination
Notice also provided that, pursuant to the Lease's 30-day
notice requirement, the effective date of lease-termination
would be September 21, 2017. (Id.)
filed the instant action on September 19, 2017, alleging that
Defendant's behavior and practices violated the terms of
the lease, Virginia Code §§ 55-248.31, 55-222, and
54.1-2106.1, as well as the Federal Trade Commission Act. On
September 22, 2017, before Defendant was served with process,
Plaintiff filed an Amended Complaint. Defendant filed its
Motion to Dismiss with Roseboro Notice on October
20, 2017. Plaintiff then filed her Motion for Leave to File
Second Amended Complaint on October 27, 2017, and Defendant
filed its opposition thereto on November 7, 2017.
STANDARD OF REVIEW
Motion to Dismiss
"A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). The Federal Rules of Civil Procedure
"require only 4a short and plain statement of the
claim showing that the pleader is entitled to relief, '
in order to 'give the defendant fair notice of what the
... claim is and the grounds upon which it rests.'"
Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint need not assert "detailed factual
allegations, " but must contain "more than labels
and conclusions" or a "formulaic recitation of the
elements of a cause of action." Twombly, 550
U.S. at 555 (citations omitted). Thus, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level, " id. (citation
omitted), to one that is "plausible on its face, "
id. at 570, rather than merely
"conceivable." Id. In considering such a
motion, a plaintiffs well-pleaded allegations are taken as
true and the complaint is viewed in the light most favorable
to the plaintiff. T.G. Slater, 385 F.3d at 841
(citation omitted). Legal conclusions enjoy no such
deference. Ashcroft v. Iqbal, 556 U.S. 662, 678
"[a] document filed pro se is 'to be
liberally construed.'" Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 104-105 (1976)). To that end, "a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers." Id. (citation and internal quotation
marks omitted). Moreover, "[p]leadings must be construed
to do justice." Fed.R.Civ.P. 8(d). At the same time,
courts recognize that a plaintiff "can plead himself out
of court by pleading facts that show that he has no legal
claim." Atkins v. City of Chicago, 631 F.3d
823, 832 (7th Cir. 2011) (Posner, J.) (citing Hecker v.
Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009);
Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir.
2008); EEOC v. Concentra Health Servs., Inc., 496
F.3d 773, 777 (7th Cir. 2007); Orthmann v. Apple River
Campground, 757 F.2d 909, 915 (7th Cir. 1985);
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006));
see also Dolgaleva v. Va. Beach City Pub. Sch., 364
Fed.Appx.. 820, 827 (4th Cir. 2010).
Motion for Leave to File ...