No. 18-0653 – Newton v. Morgantown Machine & Hydraulics of WV, Inc..

                                                                                   FILED
                                                                              November 19, 2019
HUTCHISON, Justice, dissenting, joined by WORKMAN, Justice:                        released at 3:00 p.m.
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



              “The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of

Civil Procedure is to test the formal sufficiency of the complaint.” John W. Lodge Distrib.

Co., Inc. v. Texaco, Inc, 161 W.Va. 603, 604-05, 245 S.E.2d 157, 158 (1978). In

considering a 12(b)(6) motion, it is well-established that the complaint is to be construed

in the light most favorable to the plaintiff and the allegations are to be taken as true. Id. at

605, 245 S.E.2d at 158. “[I]f the complaint states a claim upon which relief can be granted

under any legal theory, a motion under Rule 12(b)(6) must be denied.” Id. at 605, 245

S.E.2d at 159. While the majority pays lip service to these basic precepts in its decision, it

proceeds to ignore all of them and conclude that the circuit court properly dismissed the

petitioner’s complaint. Had the majority actually taken the time to read the complaint, it

would have determined, as I did, that the petitioner satisfied his burden of stating a claim

upon which relief could be granted. Because the majority turned a blind eye to our law, as

well as the allegations set forth in the petitioner’s complaint, I dissent.



              “Complaints are to be read liberally as required by the notice pleading theory

underlying the West Virginia Rules of Civil Procedure.” State ex rel. McGraw v. Scott

Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995). As this

Court has explained, Rule 8 of the West Virginia Rules of Civil Procedure, which sets forth

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the general rules for pleading, “requires clarity but not detail.”               Id.    Indeed,

“Rule 8(a)(2) requires a ‘short and plain statement of the claim showing that the pleader is

entitled to relief[.]’” Id. Therefore, “the plaintiff’s burden in resisting a motion to dismiss

is a relatively light one.” John W. Lodge Distrib., 161 W.Va. at 606, 245 S.E.2d at 159.

In order to defeat a 12(b)(6) motion, “[a]ll that the pleader is required to do is to set forth

sufficient information to outline the elements of his claim or to permit inferences to be

drawn that these elements exist.” Id. at 605, 245 S.E.2d at 159.



              Here, the petitioner filed suit pursuant to Harless v. First Nat’l Bank, 162

W.Va. 116, 246 S.E.2d 270 (1978), claiming that he was wrongfully discharged from his

employment because he exercised his right of self-defense when his was physically

attacked by a co-worker. Under Harless, an employer “may be liable to an employee for

damages occasioned by th[e] discharge” if the motivation for the discharge “contravene[s]

some substantial public policy principal.” Id. at 116, 246 S.E.2d at 271, syl. pt. 1.        In

Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001), this Court recognized

that in certain circumstances, the right of self-defense constitutes a substantial public policy

exception to the at-will employment doctrine as allowed by Harless.



              A review of the petitioner’s complaint shows that he set forth sufficient

information to outline the elements of a Harless claim. Under the clearly delineated section

of his complaint titled “Cause of Action: Wrongful Discharge Under Harless,” the

petitioner alleged:

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      25. This cause of action is asserted against both
Defendants under West Virginia’s common law claim for
wrongful discharge under Harless v. First National Bank of
Fairmont, 162 W.Va. 116, 246 S.E.2d 270, 275 (1978).

      26. Mr. Newton was physically attacked and assaulted
on March 15, 2016 by another employee, the truck driver.

        27. The attack by the truck driver created a dangerous
situation where Mr. Newton reasonably feared serious bodily
injury or even death.

      28. The truck driver was the aggressor and sole cause
of the physical contact between the truck driver and Mr.
Newton.

       29. Mr. Newton used only absolutely necessary force
to defend himself.

       30. Mr. Newton did not harm the truck driver who
attacked Mr. Newton.

       31. Morgantown Machine understood that the truck
driver was the sole aggressor, and that Mr. Newton was acting
only in self defense.

        32. The right of self-defense is a substantial West
Virginia public policy, and the right of self-defense in based on
statues and the common law of West Virginia.

       33. The substantial West Virginia public policy is
clearly intended to protect the public welfare and the public
good by attempting to ensure that persons facing the risk of
bodily injury and harm may apply necessary force to defend
themselves.

       34. Defendants violated, thwarted, and jeopardized this
substantial West Virginia public policy by suspending and
firing Mr. Newton over the use of self-defense. Such conduct
in disciplining and terminating employees under these
circumstances would threaten and intimidate employees away
from using self-defense, thereby unnecessarily subjecting


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              employees and the public to the threat of violence in the
              workplace.

                     35. Mr. Newton was fired on March 16, 2015, because
              he used self-defense in preventing further harm to Mr. Newton
              from the truck driver.

                     36. Defendants fully understood that Mr. Newton had
              applied only necessary force in self-defense.

These allegations clearly satisfy the notice pleading standard of Rule 8.



              It is obvious that the majority went beyond the four corners of the complaint,

considered the merits of the petitioner’s claim, and determined that he could not possibly

prevail. Indeed, the majority opinion expressly upholds the circuit court’s finding that “the

right of self-defense exception to the at-will employment doctrine does not apply [because]

Plaintiff was engaged in an altercation with a coworker that did not involve weapons,

dangerous circumstances, or a threat of lethal imminent danger.”            Slip op. at 9-10.

However, whether or not the altercation between the petitioner and coworker involved “an

actual threat of lethal imminent danger” is a question of fact, not the issue to be decided at

this stage of the litigation. In other words, it “is a matter properly determined on the basis

of proof and not merely on the pleadings.” John W. Lodge Distrib., 161 W.Va. at 605-06,

245 S.E.2d at 159. Moreover, the petitioner’s allegation that he “feared . . . even death”

must be taken as true for purposes of a motion to dismiss under Rule 12(b)(6).



              I am dismayed that the majority has chosen to adjudicate the merits of the

petitioner’s claim rather than afford him his day in court. Our jurisprudence favors the

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determination of actions on their merits. To that end, this Court has previously declared

that “the motion to dismiss for failure to state a claim should be viewed with disfavor and

rarely granted.” Id. at 606, 245 S.E.2d at 159. Moreover, this Court has made clear that

“[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion,

should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.” Syl. Pt. 3,

Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977), quoting

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Murphy

v. Smallridge, 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996) (stating dismissal under Rule

12(b)(6) only proper where “it is clear that no relief could be granted under any set of facts

that could be proved consistent with the allegations” (additional citation omitted)). That is

simply not the case here. The petitioner set forth sufficient allegations in his complaint

and, therefore, should have been permitted to pursue his claim for relief.



              Accordingly, for the reasons set forth above, I dissent to the majority’s

decision in this case. I am authorized to state that Justice Workman joins in this dissent.




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