HS Construction III Inc v. Day And Zimmerman Incorporated, No. 1:2013cv00032 - Document 20 (W.D. Va. 2013)
Court Description: OPINION AND ORDER GRANTING 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by HS Construction III Inc; DISMISSING Fourth Counterclaim. Signed by Judge James P. Jones on 6/17/2013. (lml)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION HS CONSTRUCTION III, INC., Plaintiff, v. DAY AND ZIMMERMAN, INCORPORATED, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 1:13CV00032 OPINION AND ORDER By: James P. Jones United States District Judge Joseph B. Lyle and Kenneth D. Hale, Hale, Lyle & Russell, Bristol, Tennessee, for Plaintiff; Robert L. Arrington and Melanie M. Lamb, Wilson Worley Moore Gamble and Stout, PC, Kingsport, Tennessee, Mark S. Hanor, Hanor Law Firm, Kingsport, Tennessee, and Aaron Krauss, Cozen O Connor, Philadelphia, Pennsylvania, for Defendant. The plaintiff has filed a Motion to Dismiss, contending that the defendant s Fourth Counterclaim fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In that counterclaim, the defendant seeks costs and attorneys fees as provided by Tennessee Code section 50-1-304(f).1 The defendant has responded to the Motion to Dismiss and it is ripe for decision. 1 That statute provides as follows: (1) This section shall not be used for frivolous lawsuits, and anyone trying to do so is subject to sanction as provided in subdivision (f)(2). (2) If any employee files a cause of action for retaliatory discharge for any improper purpose, such as to harass or to cause needless increase in The motion will be granted. In its motion, the plaintiff renounces any claim under section 50-1-304. It instead seeks relief under a common law theory of retaliatory discharge, a separate cause of action. See Mason v. Seaton, 942 S.W.2d 470, 475 (Tenn. 1997). At this point in the case, at least, the statutory sanctions are inapplicable. For these reasons, it is ORDERED that the Motion to Dismiss is GRANTED and the Fourth Counterclaim is dismissed. ENTER: June 17, 2013 /s/ James P. Jones United States District Judge costs to the employer, the court, upon motion or upon its own initiative, shall impose upon the employee an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred, including reasonable attorney s fees. Tenn. Code Ann. ยง 50-1-304(f) (West 2011). -2-
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