United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Wal-Mart Store East,
LP's ("Defendant") Motion to Dismiss, pursuant
to Federal Rules of Civil Procedure 12 (b)(1) and 12(b)(6),
to dismiss the lawsuit of Sallie Chapman
("Plaintiff'). Having reviewed the Parties'
filings in this case, the Court finds this matter is ripe for
judicial determination. For the reasons set forth below,
Defendant's Motion to Dismiss is
FACTUAL AND PROCEDURAL HISTORY
Sallie Chapman ("Plaintiff'), appearing pro
se, filed suit against Defendant in the Portsmouth
Circuit Court "for the wrongful death and negligence
regarding the treatment and ultimate death of William
Chapman, II ("Decedent")." Compl. at 2.
Plaintiff identifies herself as the "Administratrix of
the Estate of William Chapman, deceased." Id.
In her Complaint, Plaintiff alleges that Decedent entered one
of Defendant's stores at approximately 7:30 a.m. on April
22, 2015. Id. One of Defendant's security
officers believed that Decedent "had put something
inside of his backpack while in the shoe department."
Id. Decedent left the shoe department, visited the
restroom, and exited the store. Id. The security
officer followed Decedent to the parking lot and called the
police "to report a possible shoplifting."
Id. at 3. The police arrived on the scene,
approached Plaintiff, "and later shot and killed"
seeks to impose liability on Defendant for Decedent's
death. Plaintiff alleges that (i) Decedent "was
wrongfully killed" as a result of Defendant calling the
police; (ii) Defendant's actions were a "bad
call" and should be considered "racial
profiling;" (iii) Defendant's security officer
"never intervened to say that [Decedent] hadn't
stolen anything" when he "witness[ed] the
aggressiveness of the officer that was called to the
scene;" (iv) Defendant's security officer had
"no proof to justify the call to the police; and (v)
Decedent "would be alive today if [Defendant] had not
called the police to state that [Decedent] was a possible
shoplifter." Id. Plaintiff asks, among other
things, "that the surviving beneficiaries and the estate
of the Plaintiff [sic] be awarded the sum of 31 million
dollars plus interest." Id. at 5.
filed a Demurrer, Memorandum in Support, and Answer in the
Portsmouth Circuit Court on May 17, 2017. Notice of Removal
at 2, ECF No. 1. On May 26, 2017, before the Portsmouth
Circuit Court ruled on Defendant's Demurrer, Defendant
removed Plaintiffs action to this Court. Id.
23, 2017, Defendant filed its first Motion to Dismiss in
which it argues that this Court lacks subject matter
jurisdiction over Plaintiffs action. ECF No. 8. In its
motion, Defendant explains that Plaintiff is the mother of
Decedent and one of ten statutory beneficiaries of
Decedent's estate. ECF No. 9 at 1-2. Defendant argues
that Plaintiff, who is not a licensed attorney, cannot
"bring a pro se wrongful death action in her
capacity as the Administrator of the Estate of
[Decedent]." Id. at 5. On August 3, 2017,
Defendant filed a Motion for Hearing in which it asked the
Court to rule on the Demurrer that it previously filed in
Portsmouth Circuit Court after the Court resolved its Motion
to Dismiss. ECF No. 17.
September 20, 2017, the Court entered an Order in which it,
among other things, agreed that Plaintiff "may not
proceed in this action pro se." ECF No. 23.
However, the Court further stated: ". . . the Court will
not dismiss Plaintiffs action at this time. Instead, if
Plaintiff would like to proceed with this action, Plaintiff
is hereby ORDERED to obtain counsel within
thirty (30) days of the date of entry of this Order."
Id. at 7. Further, die Court held Defendant's
Motion to Dismiss, Motion for Hearing, and Motion to Compel
Disclosure in abeyance "pending resolution of the
representation issue." Id.
retained counsel on October 18, 2017. ECF Nos. 24-25.
Plaintiff filed an Amended Complaint on January 2, 2018. ECF
No. 27. On January 16, 2018, Defendant filed an Answer to the
Amended Complaint. ECF No. 30. Defendant also filed this
instant Motion to Dismiss on January 16, 2018, requesting
that this Court dismiss Plaintiffs Amended Complaint for lack
of subject matter jurisdiction and failure to state a claim
upon which relief can be granted. ECF Nos. 28-29. Plaintiff
filed a Response on February 20, 2018. ECF No. 33. Defendant
filed a Reply on February 26, 2018. ECF No. 35.
Motion to Dismiss for Lack of Subject Matter
Rule of Civil Procedure 12(b)(1) provides for the dismissal
of an action if the Court lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Unless a matter involves an area over
which federal courts have exclusive jurisdiction,
plaintiff may bring suit in federal court only if the matter
involves a federal question arising "under the
Constitution, laws or treaties of the United States, "
28 U.S.C. § 1331 (1948), or if "the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interests and costs, and is between citizens of different
States." 28 U.S.C. § 1332(a)(1) (1948).
court assumes that all factual allegations in the complaint
are true if it is contended that a complaint simply fails to
allege facts upon which subject matter jurisdiction can be
based. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982). However, if the factual basis for jurisdiction is
challenged, the plaintiff has the burden of proving subject
matter jurisdiction. Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991). Plaintiff bears the burden of proving that
subject matter jurisdiction exists by a preponderance of the
evidence. United States ex rel. Vuyyuru v. Jadhav,
555 F.3d 337, 347-48 (4th Cir. 2009). To determine whether
subject matter jurisdiction exists, the reviewing court may
consider evidence outside the pleadings, such as affidavits
or depositions, Adams, 697 F.2d at 1219, or whatever
other evidence has been submitted on the issues. GTE
South Inc. v. Morrison, 957 F.Supp. 800, 803 (E.D. Va.
1997). A party moving for dismissal for lack of subject
matter jurisdiction should prevail only if material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as matter of law. Richmond,
Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.
Federal Rule of Civil Procedure 12(h)(3) provides that
"[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action." Fed.R.Civ.P. 12(h)(3).
Motion to Dismiss for Failure to State a Claim
Rule of Civil Procedure 12(b)(6) provides for dismissal of
actions that fail to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). The United
States Supreme Court has stated that in order "[t]o
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))
(internal quotations omitted). Specifically, "[a] claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. Moreover, at
the motion to dismiss stage, the court is bound to accept all
of the factual allegations in the complaint as true.
Id. However, "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. Assessing the
claim is a "context-specific task mat requires the
reviewing court to draw on its judicial experience and common
sense." Id. at 679.
considering a Rule 12(b)(6) motion to dismiss, the Court
cannot consider "matters outside the pleadings"
without converting the motion to a summary judgment
proceeding. Fed.R.Civ.P. 12(d). Nonetheless, the Court may
still "consider documents attached to the complaint,
see Fed. R. Civ. P. 10(c), as well as those attached
to the motion to dismiss, so long as they are integral to the
complaint and authentic." Sec 'y of State for
Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705
(4th Cir. 2007); see also Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)
("When a court is presented with a Rule 12(b)(6) motion,
it may consider the Complaint and any exhibits attached
thereto, public records, items appearing in the record of the
case and exhibits attached to defendant's motion to
dismiss so long as they are referred to in the Complaint and
are central to the claims contained therein.").