Charles v. Front Royal Volunteer Fire & Rescue Dep't, Inc.

21 F.Supp.3d 620

Philip A. CHARLES, et al., Plaintiffs

v.FRONT ROYAL VOLUNTEER FIRE AND RESCUE DEPARTMENT, INC., et al., Defendants.

Civil Action No. 5:13cv00120.

United States District Court, W.D. Virginia, Harrisonburg Division.

Signed May 13, 2014.

Caleb Kershner, Daniel James Hebda, Harold Robert Showers, Timothy Paul Bosson, Simms–Showers, L.L.P., Leesburg, VA, for Plaintiffs.

Dawn Elizabeth Boyce, Bancroft, McGavin, Horvath & Judkins PC, Fairfax, VA, Roderick B. Williams, Winchester, VA, for Defendants.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

This matter is before the court on defendants Front Royal Volunteer Fire and Rescue Department, Inc., (“the Fire Department”) and David Santmyers' (“Santmyers”) motion to dismiss, in part, the claims of plaintiffs Philip A. Charles (“Charles”) and David M. Ellinger (“Ellinger”). Dkt. No. 5. In their complaint, plaintiffs allege violations of the Free Speech Clause of the 1st Amendment and the Due Process Clause of the 14th Amendment (Count I), ultra vires actions on the part of the Fire Department (Count II), and defamation of Ellinger by Santmyers (Count III). In their motion, defendants assert that the due process claims of Count I, Charles' claim under Count II, Ellinger claims for non-injunctive relief under Count II, and all of Count III should be dismissed. For the reasons stated herein, the court will GRANT in part and DENY in part defendants' motion. Specifically, the court will dismiss the due process claims of Count I, but will grant plaintiff Ellinger's leave to amend his due process claims based on a protected property interest. The court will also dismiss Charles' claim under Count II. The remainder of defendants' motion shall be denied.

I.

The facts alleged in the complaint are as follows: the Fire Department is a Virginia non-stock corporation organized in the Commonwealth of Virginia and a state actor. Santmyers is the President of the Fire Department. Charles was a member of the Fire Department and also served as the Secretary of the Corporation. Ellinger is a member of the Fire Department and also served as Treasurer. The complaint specifically alleges that members can only be removed “for cause.” Compl., Dkt. No. 1, at ¶ 39. Additionally, as members, both plaintiffs were entitled to certain benefits: an unspecified tax exemption provided to volunteer firepersons, a car decal, the use of Fire Department facilities, and “similar related benefits.” As Treasurer, Ellinger was entitled to an additional benefit of $300 in annual compensation. Id. at ¶ 42.

Beginning in 2011, plaintiffs became concerned about reductions in Fire Department resources. They were particularly concerned with a “Cost–Recovery Program,” which was designed to allow Warren County to recover funds for use of Fire Department resources. The Fire Department was supposed to receive a share of those funds, and plaintiffs grew concerned that the Fire Department was not receiving its “fair share of compensation.” Id. at ¶¶ 17, 21. When plaintiffs raised these concerns, they faced “staunch resistance” from some other Board members, including President Santmyers. “Due to the harsh reaction of the Board and the President, [Charles] resigned from his secretary position during the summer of 2012.” Id. at ¶ 18. In March 2013, Charles invited a local newspaper reporter to attend a public meeting of the Fire Department, at which the funding and resources situation of the Department were discussed. At about the same time, Charles approached a member of the Front Royal Town Council, again raising the issue of lack of funding and the concomitant inadequacy of Fire Department resources. Additionally, Charles, with Ellinger's assistance, directed a Freedom of Information of Request to Warren County seeking information related to the Cost Recovery Program.

Plaintiffs allege that, in response to these actions, the Fire Department and President Santmyers removed Charles as a member. Plaintiffs further allege that the removal was based on “trump[ed] up false charges” and was not done in conformity with the Fire Department's bylaws. Id. at ¶ 22. Ellinger sent a letter to the Board on June 18, 2013, outlining his opposition to Charles' removal and resigned as Treasurer. He alleges that he “felt forced to resign his office of Treasurer because of the inappropriate Board actions.” Id. at ¶ 23. Plaintiffs further allege that, in response to this letter, Ellinger was suspended from membership for sixty days and that the suspension coincided with “numerous baseless allegations” against Ellinger. Id. at ¶ 24. Moreover, plaintiffs allege that the Fire Department has simply “continued the suspension indefinitely” despite “numerous opportunities to have a vote on [his] membership status” in violation of the Fire Department's governing documents. Compl., Dkt. No. 1, at ¶¶ 26, 41.

Finally, plaintiffs allege that Santmyers sent a letter to Ellinger's employer, the Sheriff of Fredrick County, in a “clear attempt to defame [him] and cost him his job.” Id. at ¶ 25. Specifically, plaintiffs claims that Santmyers knowingly made false statements as to Ellinger acquiring free paint for his personal use under false pretenses and attempting to “trick the staff” as to the grade of oil to be used in “the Department's apparatus.” Id. at ¶¶ 53–54.

II.

“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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A plaintiff's well-plead factual allegations, while assumed to be true, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997), “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “[Additionally], the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. At end, the complaint must contain sufficient facts from which the court, calling upon “its judicial experience and common sense,” can conclude that the pleader has shown that he is entitled to relief. Id. at 679, 129 S.Ct. 1937 ; Fed.R.Civ.P. 8(a).

III.

Defendants concede that Charles and Ellinger have adequately pled their claims for violations of the First Amendment under Count I, but assert that neither has an actionable due process claim. Charles agrees, conceding that he has no due process claim. See Resp. in Opp'n re Mot. to Dismiss, Dkt. No. 11, at 2 (“Plaintiff Charles will voluntarily withdraw his claim for a Due Process violation.”). Ellinger disagrees, claiming that he has been denied procedural due process as to a protected property interest, i.e., his Fire Department membership. As to Count II, defendants assert that Charles lacks “standing” to bring an ultra vires claim and that Ellinger's claim should be limited exclusively to injunctive relief. Finally, defendants assert that Ellinger has failed to state claim for defamation in Count III that would be not barred by qualified privilege and ask the court to dismiss Ellinger's request for punitive damages. The court will address each issue in turn.

A. Due Process

The Due Process Clause of the Fourteenth Amendment protects three kinds of rights. “First, the Clause incorporates many of the specific protections defined in the Bill of Rights.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). “Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’ ” Id. (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ). Finally, the Due Process Clause also encompasses “a guarantee of fair procedure,” id., referred to as procedural due process rights. See, e.g., Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1460 (4th Cir.1990) (noting the procedural due process rights guaranteed under the Fourteenth Amendment). To state claim for a violation of procedural due process as to a protected property interest, as Ellinger purports to do here, a plaintiff must demonstrate: (1) that he has a valid property interest; (2) of which the state deprived him; (3) without due process of law. Shooting Point, L.L.C. v. Cumming, 238 F.Supp.2d 729, 738 (E.D.Va.2002), aff'd, 368 F.3d 379 (4th Cir.2004).

“Whether a plaintiff has a protectable property interest under the Due Process Clause turns upon the plaintiff's property rights under state law.” Foreman v. Griffith, 81 Fed.Appx. 432, 436 (4th Cir.2003) (per curiam) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ); see also Echtenkamp v. Loudon Cnty. Pub. Sch., 263 F.Supp.2d 1043, 1053 (E.D.Va.2003) (quoting Huang v. Board of Governors, 902 F.2d 1134, 1141 (4th Cir.1990) (additional citation omitted)) (“To have a protected property interest, an individual ‘must be entitled to a benefit created and defined by a source independent of the Constitution, such as state law.’ ”) Here, Ellinger has alleged that his membership in the Fire Department could be terminated only for good cause. Furthermore, at this stage of the proceedings, defendants do not contest Ellinger's status as a public employee. “[A]s a public employee who could only be terminated for good cause, [Ellinger] had an established property interest in [his] continued employment.”

Wagner v. Gibson, No. CIV. WDQ–12–3581, 2013 WL 4775380, at *9 (D.Md. Sept. 4, 2013) (citing Prince v. Bridges, 537 F.2d 1269, 1271 (4th Cir.1976) ); see also Brookshire v. Buncombe Cnty., N.C., No. 1:10CV278, 2012 WL 136899, at *4 (W.D.N.C. Jan....