United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
matter comes before the court on defendant's Motions to
Dismiss, ECF Nos. 6, 8, in which defendant Kimberly Sue Vance
("Vance") moves to dismiss Counts One and Three of
plaintiff Nexus Services, Inc.'s ("Nexus")
Complaint (the "Complaint" or "Compl."),
ECF No. 1. For the reasons discussed below, the court will
GRANT Vance's Motions to Dismiss.
Complaint and attached statements contain the following
allegations.Vance, an off-duty police officer with the
City of Waynesboro Police Department, Compl. ¶ 2, drove
her personal vehicle onto Nexus' campus in Verona,
Virginia, id ¶ 8. Vance was wearing her police polo
shirt, a gun belt, and a badge around her neck. Interim
Healthcare Witness Statement ("Interim Statement"),
Compl. Ex. 2, at 1.
security guard stopped Vance and asked her what she was
doing, to which Vance responded that she was going to visit
Interim HealthCare ("Interim") to seek home
healthcare services. Id. ¶ 9; Security Guard
Witness Statement ("Sec. Guard Statement"),
Id. Ex. 1, at 1. The security guard noticed that
Vance was wearing a police polo, but could not identify the
department name on the polo. Sec. Guard Statement 1. Based on
Vance's statement, the security guard let her enter the
premise and pointed her in the direction of Interim.
Id.; Compl. ¶ 10.
Vance entered Interim's office, she was approached by an
Interim employee. Compl. ¶ 11. Vance informed the
employee that she had lied to the guard to gain entrance to
Nexus' campus to "look around." Id.
¶¶ 11, 19-20; Interim Statement 1. Nevertheless,
Vance talked with the employee about Vance's mother and
some medical conditions facing her mother. Interim Statement
1. She then asked the employee how long the Nexus guard shack
had been there. Id. After she left Interim, Vance
drove her vehicle to the rear portion of the Nexus property
"in an apparent effort to 'look around' the
entire campus." Compl. ¶ 21. Vance was on
Nexus' campus for no more than three minutes. Sec. Guard
Statement 1 (noting that Vance entered the campus "at
approximately 13:10" and "exit[ed] the campus at
entered the campus on behalf of an unnamed third party, a
former Nexus employee with whom Vance associates.
Id. ¶¶ 14, 24. The Complaint does not
plead that the third party had any connection to the City of
Waynesboro police department. Instead, the Complaint pleads
that "Vance was not authorized by any superior officer
to conduct a search of [Nexus5] corporate campus on the date
in question." Id. ¶ 28.
on these allegations, the Complaint asserts three counts
against Vance: (1) Count One, a Section 1983 claim based on a
violation of the Fourth Amendment's prohibition against
unlawful searches; (2) Count Two, a state-law trespass claim;
and (3) Count Three, a state-law defamation
moves to dismiss Counts One and Three under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. Rule
12(b)(6) permits a dismissal when a plaintiff fails "to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must contain sufficient "facts to
state a claim to'' relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The complaint's "[f]actual
allegations must be enough to raise a right to relief above
the speculative level." Id. at 555.
must construe factual allegations in the nonmoving
party's favor and will treat them as true, but is
"not so bound with respect to [a complaint's] legal
conclusions." Dist. 28. United Mine Workers of Am..
Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085 (4th
Cir. 1979). Indeed, a court will accept neither "legal
conclusions drawn from the facts" nor "unwarranted
inferences, unreasonable conclusions, or arguments."
E. Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship.'213 F.3d 175, 180 (4th Cir. 2000).
Further, "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).'Only after a claim is stated adequately may
it then "be supported by showing any set of facts
consistent with the allegations in the complaint."
Twombly. 550 U.S. at 563.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
or laws of the United States and must show that the
deprivation of that right was committed by a person acting
under color of state law. Crosby v. City of Gastonia,
635 F.3d 634, 639 (4th Cir. 2011) (citing West v.
Atkins. 487 U.S. 42, 48 (1988)).