Blackwood v. Berry Dunn, LLC
| Decision Date | 29 May 2019 |
| Docket Number | Civil Action No. 2:18-cv-1216 |
| Parties | JULIA E. BLACKWOOD, Plaintiff, v. BERRY DUNN, LLC, NICOLE Y. BECNEL, and JANE DOE(S), Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending is the joint motion to dismiss plaintiff's complaint, filed by defendants Berry Dunn, LLC ("Berry Dunn") and Nicole Becnel (collectively, "the defendants") on August 15, 2018. Also pending is plaintiff's "Motion for Leave to File Motion to Remand Instanter" (which is simply a request to file a late response), filed September 24, 2018, which motion is granted as set forth below.
Plaintiff Julia E. Blackwood, a citizen of West Virginia, worked for Berry Dunn, a Maine corporation with its principal place of business in Maine, as a contract employee. Compl. ECF No. 1-1, at ¶ 16. On February 25, 2016, Ms. Blackwood was offered and accepted "full-time employment with Berry Dunn as a Senior Consultant . . . with her employment to start on April 5, 2016." Id. ¶ 20. Ms. Becnel, a resident of West Virginia, was the manager of Berry Dunn's Charleston office and was responsible for assigning projects to senior consultants such as Ms. Blackwood. Id ¶ 9. Ms. Becnel, however, assigned the more lucrative positions only to a particular group of her "close personal friends and confidants within the office," excluding Ms. Blackwood. Id. ¶ 12.
Ms. Blackwood, at some point not specified in the complaint, began to question the propriety of certain billing practices of Berry Dunn. Id. ¶¶ 22-28. Around the time she began this questioning, Ms. Blackwood noticed discussions of particularly lavish spending by Ms. Becnel on events she "privately hosted for the State employee assigned with oversight responsibility on the Berry Dunn State consulting contracts." Id. ¶ 29. Ms. Blackwood believes that her questioning of Berry Dunn's state billing practices led Ms. Becnel to initiate "an internal campaign of discrimination, intentional harassment, invasion of privacy and defamation of Ms. Blackwood." Id. ¶ 30.
At the direction of Ms. Becnel, other employees secretly photographed Ms. Blackwood with her eyes closed while she was on her lunch break in the office, though Ms. Blackwood never consented to having her picture taken. Id. ¶ 35-38. Ms.Blackwood became aware of the photographs taken by employees of Berry Dunn at the direction of Ms. Becnel on May 2, 2017 when she received the pictures from defendants' counsel. Id. ¶ 53.
On March 16, 2017, Ms. Becnel informed Ms. Blackwood that she had been fired because she had fallen asleep on the job on three separate occasions. Id. ¶ 31. Ms. Becnel is further alleged to have discussed Ms. Blackwood's confidential employment information with other employees. Id. ¶ 32.
On March 17, 2017, a day after Ms. Blackwood was informed that her employment was being terminated, Berry Dunn's director of human resources, Debra Genender, informed Ms. Blackwood by electronic mail that she would be paid, in addition to the payment for her eight hours of work the previous day and for her fifty-five hours of accrued vacation time, three weeks' severance, amounting to $4,038.46. Id. ¶¶ 42-44. Ms. Blackwood alleges she was "unconditionally promised she was 'being given'" this severance pay; and, as a consequence, that she made purchases and committed to making other payments "in the approximate amount of the severance payments." Id. ¶¶ 44-45. When Berry Dunn learned that Ms. Blackwood had retained counsel in connection with her employment termination, they refused to pay the three weeks' severance unless she released all potential claims against them and subjected herself to restrictions inseeking future employment. Id. ¶¶ 45-47. The conditions placed on Ms. Blackwood's receiving the severance pay are alleged to have caused her "substantial emotional distress accompanied by physical injury," and Berry Dunn is purported to have attempted to leverage those injuries to "force Ms. Blackwood to release her lawful claims against" the defendants. Id. ¶¶ 48-52.
On May 5, 2017, Berry Dunn's counsel sent Ms. Blackwood a second electronic letter in which they stated that if she chose to pursue her claims, the pictures of her sleeping at work would undoubtedly become a part of the public record and might hinder her ability to obtain future employment. Id. ¶ 54. Berry Dunn further stated that in the interest of keeping those photographs from becoming public, it would be in "Ms. Blackwood's interest to execute the separation agreement that she has been offered, so both parties can move forward." Id.
Ms. Blackwood initiated this action in the Circuit Court of Kanawha County on March 16, 2018. She asserts claims against Berry Dunn for violations of the West Virginia Wage Payment and Collection Act ("WPCA"), West Virginia Code § 21-5-1 et seq., "for late payment of amounts paid and failure to pay all amounts due Ms. Blackwood," and against all defendants for wrongful termination of employment by discriminating against her on the basis of her age, unlawfulinvasion of privacy, breach of promise, detrimental reliance, breach of contract and breach of the related covenant of good faith and fair dealing, intentional infliction of emotional distress ("IIED"), negligent infliction of emotional distress, and aiding and abetting. Id. at 9.
The defendants moved to dismiss the claims against them on August 15, 2018. The plaintiff did not respond to this motion within the fourteen days provided by Local Rule of Civil Procedure 7.1(a)(7). Instead, on September 24, 2018, the plaintiff filed the motion entitled "Motion for Leave to File Motion to Remand Instanter," attached to which is a response in opposition to defendants' motion to dismiss. The court deems the plaintiff's motion to be a request for leave to file a late response. The defendants opposed plaintiff's motion by noting that plaintiff's counsel admitted that his late filing was due to lack of familiarity with the local rules.1 Inasmuch as plaintiff's counsel also assigns his illness as a reason for the late filing and because there has not been any prejudice alleged by the defendants, the court, in the interest of justice, grantsthe plaintiff's motion to file a late response. It is so ORDERED.
On August 8, 2018, the defendants removed the case to federal court, asserting fraudulent joinder of Ms. Becnel and invoking this court's diversity jurisdiction, see 28 U.S.C. § 1332(a)(1), and on September 11, 2018, the plaintiff moved to remand the case to the Circuit Court of Kanawha County. The court denied plaintiff's motion to remand on March 13, 2019.
Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide "a short and plain statement of the claim showing . . . entitle[ment] to relief." Fed. R. Civ. P. 8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it "fail[s] to state a claim upon which relief can be granted . . . ." Fed. R. Civ. P. 12(b)(6).
The required "short and plain statement" must provide "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other grounds, Twombly, 550 U.S. at 563); see alsoAnderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007). In order to 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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); see also Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009).
Application of the Rule 12(b)(6) standard requires that the court "'accept as true all of the factual allegations contained in the complaint . . . .'" Erickson, 127 S. Ct. at 2200 (quoting Twombly, 127 S. Ct. at 1965); see also South Carolina Dept. Of Health And Environmental Control v. Commerce and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)). The court must also "draw[] all reasonable . . . inferences from th[e] facts in the plaintiff's favor . . . ." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
The parties dispute whether the severance pay offered to Ms. Blackwood is covered under the WPCA.
The WPCA states that "[w]henever a person, firm or corporation discharges an employee . . . the person, firm or corporation shall pay the employee's wages due for work that the employee performed prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable." W. Va. Code § 21-5-4(b).
Id. at § 21-5-1(1).
Inasmuch as the Supreme Court...
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