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Sirak v. Aiken

United States District Court, E.D. Virginia, Richmond Division

December 6, 2019

ANDY SIRAK, et al. Plaintiffs,
MYRON TERRELL AIKEN, et al., Defendants.


          M. Hannah Lauck United States District Judge

         This matter comes before the Court on Defendants Myron Terrell Aiken and Western Express, Inc.'s (collectively, the "Defendants") Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5)[1] and 12(b)(6).[2] (ECF No. 6.) Plaintiffs Andy and Galina Sirak (collectively, the "Siraks") responded, (ECF No. 11), and the Defendants replied, (ECF No. 12). The matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1332(a).[3] For the reasons that follow, the Court will grant the Defendants' Rule 12(b)(6) Motion to Dismiss.

         I. Factual and Procedural Background

         This personal injury action arises out of an incident during which a truck struck a pedestrian at a Pilot Travel Center in New Kent, Virginia on December 8, 2016. The Siraks previously filed a substantially similar complaint in the United States Court for the Northern District of Illinois (the "Illinois Complaint"). Because the claims in the previous lawsuit are essential to deciding the Motion to Dismiss, the Court turns first to the Illinois Complaint.

         A. Illinois Complaint

         On November 27, 2018, the Siraks, represented by Attorney Ralph Briscoe, filed a two-count complaint in the Northern District of Illinois against the Defendants.[4] In the Illinois Complaint, the Siraks, through counsel, alleged that Aiken, a driver for Western Express, struck Andy Sirak with his semi-truck while driving through the Pilot Rest Stop in New Kent, Virginia. (Ill. Compl. ¶¶ 10, 12, ECF No. 7-1.) As a result of the accident, the Plaintiffs stated that Andy Sirak suffered "serious injuries" including "contusions to his face and torso, a fractured rib, and a fractured foot." (Id. ¶ 14.) The Illinois Complaint identified two claims for relief. First, the Siraks sought to recover for injuries caused by Aiken's negligence in operating his semi-truck. Second, Galina Sirak sought to recover for "loss of consortium," because she "lost and continues to lose the love, moral, beneficial and economic support... of her husband." (Id. ¶ 24.) The Illinois Complaint demanded damages in excess of $150, 000. (Id. 5.)

         Under the section entitled "PARTIES," the Siraks averred that they resided in Illinois, that Western Express was a citizen of Tennessee, and that Aiken was a citizen of Georgia. (Id. ¶ 5.) Under the section entitled "VENUE AND JURISDICTION," They further asserted that venue was "proper in this District, because the Plaintiffs are permanent residents of Wheeling, Illinois... [and] Andy Sirak's employer on the date of the incident was... located in Broadview, Illinois." (Id. ¶ 6.)

         The Siraks failed to prosecute the Illinois Complaint. Approximately two months later, on January 22, 2019, the Defendants moved to dismiss the Illinois lawsuit "for lack of personal jurisdiction and insufficient service of process." (Mem. Supp. Mot. Dismiss. 3, ECF No. 7.) Counsel for the Siraks failed to respond to the Defendants' motion, and the Illinois Court "dismissed the case, without prejudice, after [Briscoe] failed to appear at a hearing on March 6, 2019." (Id. 4; see also Illinois Ct. Order, ECF No. 7-3.)

         B. Virginia Complaint

         On March 14, 2019, eight days after the dismissal of the Illinois Complaint, the Siraks filed their Complaint (also, the "Virginia Complaint") in this Court. The Virginia Complaint is similar to the Illinois Complaint, with four important differences. First, the Virginia Complaint includes an additional cause of action for assault and battery. (Compl. ¶ 24.) The Siraks now allege that "Aiken[] exited his vehicle and... [struck Andy Sirak] about the head and body with his fists without legal justification." (Id. ¶ 15.) Second, the Virginia Complaint seeks damages in excess of $200, 000-$50, 000 more than the Illinois Complaint. (Id. 5.) Third, the Virginia Complaint was purportedly filed “pro se.” (Id. 1.) However, in the Local Rule 83.1 (M) Certification attached to the Virginia Complaint, the Siraks state that Briscoe-their attorney in Illinois who is not licensed to practice law in the Commonwealth of Virginia-assisted them in the preparation of their lawsuit. (Compl. Ex-1.) Fourth, and finally, the Virginia Complaint asserts that "[v]enue is proper in this District, because the underlining incident which gives rise to this cause of action occurred within the jurisdictional limits of this court being New Kent County, Virginia." (Compl. ¶ 6.)

         C. Procedural Background

         The Siraks' Virginia Complaint brings three counts against the Defendants, alleging: (1) negligence; (2) battery; and, (3) loss of consortium. On July 8, 2019, the Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6).[5] (ECF No. 6) Consistent with the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Defendants included in their Motion to Dismiss a notice that the "Siraks are entitled to file a response opposing this Motion and any such response must be filed within twenty-one (21) days of the date on which this Motion is filed" and warned that "[t]he Court could dismiss this action on the basis of Defendants' papers if the Siraks do not file a response." (Mot. Dismiss. 2, ECF No. 6.) On August 2, 2019, the Siraks, stilt purportedly proceeding without counsel, filed a response, four days beyond the due date.[6] (ECF No. 11.) The Defendants replied. (ECF No. 12.)

         II. Legal Standard

         "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) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, 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, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief.") Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some factual ...

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