United States District Court, E.D. Virginia, Alexandria Division
GRADY, UNITED STATES DISTRICT.
matter comes before the Court on Defendants' various
Motions to Dismiss (Dkt. Nos. 75, 77, 79, 83, 86, and 92),
For the reasons below and for good cause shown, the Motions
to Dismiss are GRANTED.
pro se, filed the initial complaint in this matter
on June 12, 2017. Dkt. No. 1. The background facts of this
case as set forth in Plaintiffs 125-page complaint are
materially indistinguishable from those alleged in a related
case Chien v. Grogan, 2017 WL 3381978 (E.D. Va. Aug.
3, 2017), aff'd, 2018 WL 746523 (4th Cir. Feb.
7, 2018) (unpublished per curiam opinion). The
Court's Memorandum Opinion dismissing that case provides
a recitation of the underlying facts of this matter. See
August 28, 2017, the Court granted all pending motions to
dismiss the case, having overlooked that it earlier granted
an extension of time for Plaintiff to respond to the pending
motions. Dkt. Nos. 47 and 48. The Court rescinded the order
on September 12, 2017 and also granted Plaintiff leave to
amend his complaint in light of the reasons for dismissal
identified in the Court's mistaken order. Due to
confusion over what constitutes amendment of complaint, the
amended complaint in this case was not filed until October
19, 2017. Dkt. 73. The instant motions seek dismissal of that
October 19, 2017 amended complaint.
having had the benefit of this Court's dismissal in the
Grogan matter and the mistaken, but explanative,
dismissal of the original complaint in this matter, the
amended complaint warrants dismissal for many of the same
reasons identified in the Court's August 28, 2017 order.
Defendants have moved to dismiss the complaint on virtually
the same grounds. The instant motions are fully briefed and
the Court has dispensed with oral arguments.
Rule of Civil Procedure 12(b)(1) permits the defendant to
move for dismissal of a claim when the court lacks subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The court must
dismiss the action if it determines at any time that it lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).
Defendants may, as in this case, attack "the existence
of subject matter jurisdiction in fact, quite apart from any
pleading" because even with sufficient pleading, the
district court could not have jurisdiction over the claim.
White v. CMA Const. Co. Inc., F.Supp. 231, 233 (E.D.
Va. 1996). The plaintiff bears the burden to establish that
subject matter jurisdiction exists. See Evans v. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The
Court grants a Rule 12(b)(1) motion if the material
jurisdictional facts are known and the moving party is
entitled to prevail as a matter of law. See Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual information to "state a claim to relief that is
plausible on its face." Bell Atl Corp. v.
Twombly, 550 U.S. 544, 550 (2007). A motion to dismiss
pursuant to Rule 12(b)(6) must be considered in combination
with Rule 8(a)(2), which requires "a short and plain
statement of the claim showing that the pleader is entitled
to relief so as to "give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests." Fed.R.Civ.P. 8(a)(2); Twombly, 550 U.S.
at 555. While "detailed factual allegations" are
not required, Rule 8 does demand that a plaintiff provide
more than mere labels and conclusions stating that the
plaintiff is entitled to relief. Id. Because a Rule
12(b)(6) motion tests the sufficiency of a complaint without
resolving factual disputes, a district court "'must
accept as true all of the factual allegations contained in
the complaint' and 'draw all reasonable inferences in
favor of the plaintiff.'" Kensington Volunteer
Fire Dep't v. Montgomery County, 684 F.3d 462, 467
(4th Cir. 2012) (quoting E.I. du Pont de Nemours &
Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011)). Accordingly, a complaint may survive a motion to
dismiss "even if it appears 'that a recovery is very
remote and unlikely.'" Id. (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Wendy Hughes - Failure to State
the relevant time period, Ms. Hughes was the Clerk of Court
for Chesterfield County Circuit Court. Plaintiff alleges five
claims against her: 1) violating Va. Code § 18.2-472; 2)
perjury; 3) aiding false imprisonment; 4) violation of the
Due Process clause, and 5) violation of 18 U.S.C. §
1959(a)(4). Plaintiff has failed to state a claim against Ms.
Hughes on these counts.
of Va. Code § 18.2-472 has no civil remedy. In order for
a private right of action to arise out of the Virginia Code,
the civil remedy must appear on the face of the statute.
See Sch Bd of City of Norfolk v. Giannoutsos, 238
Va. 144, 147, 380 S.E.2d 647, 649 (1989) ("[When] a
statute creates a right and provides a remedy for the
vindication of that right, then that remedy is exclusive
unless the statute says otherwise"). Va. Code §
18.2-472 criminalizes false entries or destruction of records
but does not provide a civil right of action. Accordingly,
the claims here, predicated on state criminal statutes that
afford no civil remedy, must be dismissed for failing to
state a claim.
aiding false imprisonment, the elements of the tort of false
imprisonment are plainly not supported by the facts alleged
in the amended complaint. False imprisonment is the
"direct restraint by one person of the physical liberty
of another without adequate legal justification" and
consists of restraining a person's freedom of movement by
force of fear. Jordan v. Shands,255 Va. 492, 497
(1998) (quoting W.T. Grant Co. v. Owens, 149 Va.
906, 921 (1928)). There are simply no facts sufficiently