Helen Tucker & Mound City Inc. v. Thomas, Civil Action No. 5:10CV31.

CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia
Writing for the CourtFREDERICK P. STAMP
Citation853 F.Supp.2d 576
PartiesHelen TUCKER and Mound City Inc., a corporation, Plaintiffs, v. Steven L. THOMAS, Thomas Brad Singleton, Scott Haire, Don Perry, Frank Barker, Alexas Intertainment, LLC, Koffee Shop Inc., a corporation, Donna Kitchen, Kimberly J. Crupe, Ohio Valley Amusement Company, H.E.B. Tech, LLC, Steven Evans, M.L.H., LLC and Keystone Exploration, Ltd., Defendants.
Docket NumberCivil Action No. 5:10CV31.
Decision Date15 February 2012

853 F.Supp.2d 576

Helen TUCKER and Mound City Inc., a corporation, Plaintiffs,
v.
Steven L. THOMAS, Thomas Brad Singleton, Scott Haire, Don Perry, Frank Barker, Alexas Intertainment, LLC, Koffee Shop Inc., a corporation, Donna Kitchen, Kimberly J. Crupe, Ohio Valley Amusement Company, H.E.B. Tech, LLC,1 Steven Evans, M.L.H., LLC 2 and Keystone Exploration, Ltd., Defendants.

Civil Action No. 5:10CV31.

United States District Court,
N.D. West Virginia.

Feb. 15, 2012.


[853 F.Supp.2d 580]


Joseph A. Wallace, Wallace Law Offices, LC, Inc., Elkins, WV, Kevin L. Neiswonger, Law Offices of Neiswonger & White, Moundsville, WV, Paul J. Harris, Harris Law Offices, Wheeling, WV, for Plaintiffs.

Jeffrey M. Wakefield, John Andrew Smith, Flaherty Sensabaugh Bonasso, PLLC, Charleston, WV, Andrew G. Fusco, Ashley Paige Hardesty, Bowles, Rice, McDavid, Graff & Love, LLP, Morgantown, WV, for Defendants.


MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS SINGLETON, PERRY, HAIRE, BARKER, EVANS, MLH INVESTMENTS, LLC, KEYSTONE EXPLORATION, LTD., H.E.B., LLC AND ALEXAS INTERTAINMENT, LLC'S MOTION TO DISMISS, GRANTING IN PART AND DENYING IN PART DEFENDANTS OHIO VALLEY AMUSEMENT COMPANY, KITCHEN AND CRUPE'S MOTION TO DISMISS, GRANTING DEFENDANT KOFFEE SHOP, INC.'S MOTION TO DISMISS, DENYING AS MOOT DEFENDANTS OHIO VALLEY AMUSEMENT COMPANY, KITCHEN AND CRUPE'S MOTION FOR JOINDER IN THE MOTION OF SINGLETON, ET AL. TO DISMISS FIRST AMENDED COMPLAINT AND DENYING AS MOOT DEFENDANT KOFFEE SHOP'S MOTION FOR JOINDER IN SINGLETON DEFENDANTS' MOTION TO DISMISS

FREDERICK P. STAMP, JR., District Judge.
I. Background

The plaintiffs, Helen Tucker and Mound City, Inc., filed a complaint against the defendants in the Circuit Court of Marshall County, West Virginia, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), slander of title, tortious interference, legal malpractice, invasion of privacy, fraud, conversion, and civil conspiracy. Defendants Thomas Brad Singleton, Scott Haire, Frank Barker, Alexas Intertainment, LLC, H.E.B., LLC, Steven Evans, MLH Investments, LLC removed this civil action to this Court pursuant to 28 U.S.C. §§ 1441, 1446, and 1452.3 Following removal,

[853 F.Supp.2d 581]

the plaintiffs filed multiple motions for remand and abstention, but this Court found that it has jurisdiction over this case based upon its relationship to ongoing bankruptcy proceedings regarding the bankruptcy estate of Francis Tucker, plaintiff Helen Tucker's son and the previous owner of plaintiff Mound City Inc., and defendant Ohio Valley Amusement Company (“OVA”). This Court also declined to exercise permissive abstention. Further, in the same memorandum and opinion, this Court denied in part and granted in part multiple motions to dismiss, and directed the plaintiffs to file a more definite statement. The plaintiffs complied by filing a first amended complaint which raised common law claims of slander of title, tortious interference, legal malpractice, invasion of privacy, fraud, conversion, and civil conspiracy.

In response to the amended complaint, all defendants except for defendant Thomas filed a joint motion to stay all pretrial litigation, and this motion was eventually joined by the plaintiffs. This Court later denied the motion to stay, but issued an extended scheduling order. Additionally, all defendants except for defendant Steven L. Thomas filed renewed motions to dismiss based upon the amended complaint. Defendants Kimberly J. Crupe, Donna Kitchen, OVA, and Koffee Shop, Inc. also filed motions to join in the motion to dismiss filed by defendants Thomas Brad Singleton, Scott Haire, Frank Barker, Alexis Intertainment, LLC, H.E.B., LLC, Steven Evans, MLH Investments, LLC and Keystone Exploration Ltd., insofar as it moves to dismiss this case on the basis of failure to join an indispensable party-Francis Tucker. All of these motions to dismiss have been fully briefed and are ripe for disposition by this Court.

II. Applicable Law
A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2) for Lack of Personal Jurisdiction

When a court's power to exercise personal jurisdiction over a non-resident defendant is challenged by a motion under Rule 12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving the existence of the grounds for jurisdiction by a preponderance of the evidence. Owens–Illinois, Inc. v. Rapid Am. Corp., (In re The Celotex Corp.), 124 F.3d 619, 628 (4th Cir.1997) (citing Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989)).

Under a “long-arm” statute, such as West Virginia Code § 56–3–33, 4 a state

[853 F.Supp.2d 582]

may enable its courts to exercise personal jurisdiction over non-residents that commit certain acts within the state, or certain acts outside of the state, that have caused injury within the state. See Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310, 315 (1991) (“The intent and benefit of any long-arm statute is to permit the secretary of state to accept process on behalf of a nonresident and to view such substituted acceptance as conferring personal jurisdiction over the nonresident.”). Because the West Virginia long-arm statute is coextensive with the full reach of due process, it is unnecessary to go through the normal two-step formula for determining the existence of personal jurisdiction. In re Celotex Corp., 124 F.3d 619, 627–28 (4th Cir.1997). Instead, the “statutory inquiry merges with the Constitutional injury,” and this Court must determine whether exercising personal jurisdiction is consistent with the due process clause. Id. at 628;see World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Due process requires that a defendant receive adequate notice of the suit and be subject to the personal jurisdiction of the court. Id. (citations omitted). The exercise of personal jurisdiction over a non-resident defendant is proper only so long as “minimum contacts” exist between the defendant and the forum state, “such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

If the defendant's contacts with the forum state provide the basis for the suit, those conducts may establish “specific jurisdiction.” Carefirst of Md., Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 397 (4th Cir.2003). To determine whether specific jurisdiction exists, this Court considers: “(1) the extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the state; (2) whether the plaintiffs' claims arise out of those activities directed at the state; and (3) whether the exercise of personal jurisdiction would be constitutionally ‘reasonable.’ ” Id. (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711–12 (4th Cir.2002)).

If the defendant's contacts with the state are not the basis for the suit, however, then jurisdiction “must arise from the defendant's general, more persistent, but unrelated contacts with the state.” Id. A plaintiff establishes general jurisdiction by showing that the defendant's activities in the state have been “continuous and systematic.” Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).

B. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(5)

A Rule 12(b)(5) motion to dismiss argues for dismissal based upon the insufficiency of service of process under of the Federal Rules of Civil Procedure Rule 4. Federal Rule of Civil Procedure 4(c)(1) provides that the plaintiff is responsible for serving a summons, together with a copy of the complaint, within the time requirements set forth under Rule 4(m). Rule 4(m), in turn, states that a plaintiff has a 120–day period after the filing of the

[853 F.Supp.2d 583]

complaint to effect service. A court, however, must extend the time for service where a plaintiff who has failed to effect service within the prescribed 120–day period after the filing of the complaint shows good cause for such failure. Fed.R.Civ.P. 4(m).

C. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009). However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). A court will decline to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir.2009).

It has often been said that the purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court's inquiry is directed to whether the allegations constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.

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34 practice notes
  • Hampton v. Comey, Civil Action No. 14-cv-1607 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 8, 2016
    ...the rules for service of process in West Virginia do not "vary in any relevant way from . . . the Federal Rules." Tucker v. Thomas, 853 F. Supp. 2d 576, 586 (N.D. W.Va. 2012). West Virginia Rule of Civil Procedure 4(d) permits service on an individual by one of the following methods: (A) De......
  • Leonard v. Starkey, CIVIL ACTION NO. 1:14-CV-42
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • January 14, 2016
    ...conspiracy" and "individually and collectively" committed wrongs, but do not allege facts to support that allegation. Tucker v. Thomas, 853 F.Supp.2d 576, 594 (N.D. W.Va. 2012). The Leonards allege that (1) the DHHR defendants met their co-defendants in a parking lot behind the Harrison Cou......
  • Sheehan v. Saoud, Civil Action No. 1:11CV163.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • January 28, 2015
    ...and “individually and collectively” committed wrongs, but fail to allege facts to support that allegation. Tucker v. Thomas, 853 F.Supp.2d 576, 594 (N.D.W.Va.2012) (Stamp, J.).As to Sheehan's allegation that Saoud, Daniel, and Scott conspired to violate the WVUFTA (Dkt. No. 86 at 9–11), cas......
  • Martin P. Sheehan, Tr. of the Bankr. Estate of Ags, Inc. v. Allen G. Saoud, Fred D. Scott, W. Va. Dermatology Assocs., Inc., Civil Action No. 1:11CV163.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • January 28, 2015
    ...and “individually and collectively” committed wrongs, but fail to allege facts to support that allegation. Tucker v. Thomas, 853 F.Supp.2d 576, 594 (N.D.W.Va.2012) (Stamp, J.). As to Sheehan's allegation that Saoud, Daniel, and Scott conspired to violate the WVUFTA (Dkt. No. 86 at 9–11), ca......
  • Request a trial to view additional results
34 cases
  • Hampton v. Comey, Civil Action No. 14-cv-1607 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 8, 2016
    ...the rules for service of process in West Virginia do not "vary in any relevant way from . . . the Federal Rules." Tucker v. Thomas, 853 F. Supp. 2d 576, 586 (N.D. W.Va. 2012). West Virginia Rule of Civil Procedure 4(d) permits service on an individual by one of the following methods: (A) De......
  • Leonard v. Starkey, CIVIL ACTION NO. 1:14-CV-42
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • January 14, 2016
    ...conspiracy" and "individually and collectively" committed wrongs, but do not allege facts to support that allegation. Tucker v. Thomas, 853 F.Supp.2d 576, 594 (N.D. W.Va. 2012). The Leonards allege that (1) the DHHR defendants met their co-defendants in a parking lot behind the Harrison Cou......
  • Sheehan v. Saoud, Civil Action No. 1:11CV163.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • January 28, 2015
    ...and “individually and collectively” committed wrongs, but fail to allege facts to support that allegation. Tucker v. Thomas, 853 F.Supp.2d 576, 594 (N.D.W.Va.2012) (Stamp, J.).As to Sheehan's allegation that Saoud, Daniel, and Scott conspired to violate the WVUFTA (Dkt. No. 86 at 9–11), cas......
  • Martin P. Sheehan, Tr. of the Bankr. Estate of Ags, Inc. v. Allen G. Saoud, Fred D. Scott, W. Va. Dermatology Assocs., Inc., Civil Action No. 1:11CV163.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • January 28, 2015
    ...and “individually and collectively” committed wrongs, but fail to allege facts to support that allegation. Tucker v. Thomas, 853 F.Supp.2d 576, 594 (N.D.W.Va.2012) (Stamp, J.). As to Sheehan's allegation that Saoud, Daniel, and Scott conspired to violate the WVUFTA (Dkt. No. 86 at 9–11), ca......
  • Request a trial to view additional results

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