THE STATE OF RIDGEWAY
SUPERIOR COURT
TOMSKIPETSKI5,
Plaintiff,
v.
STUDSPERSECOND,
Defendant.
Case No.: RSC-CV-380
MOTION TO DISMISS
Date Filed: 5/24/2022
Defendant in the above entitled action, hereby moves to dismiss.
MOTION TO DISMISS
FAILURE TO STATE CLAIM
Rid. R. Civ. P. 8(a) provides that the civil complaint must “[set] forth a claim
for relief… shall contain (1) a short and plain statement of the claim showing that
the pleader is entitled to relief, and (2) a demand for judgment for the relief to
which he deems himself entitled.” When a civil complaint does not “state a
complaint upon which relief can be granted”, a party may motion for dismissal of
the action under Rid. R. Civ. P. 12(a)(5). These rules read akin to the Federal Rules
of Civil Procedure (Fed. R. Civ. P. 8(a)(2) and 12(b)(6) respectively), therefore
using precedent from the United States legal system is applicable.
The accepted standard for determining whether cases fail to state a claim
arises from the Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). The latter of which merely expanded the former to
include all civil litigation.
Iqbal directs us to Rid. R. Civ. P. 8(a), the pleading standard “does not
require detailed factual allegations, but it demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation” Iqbal, 678 (quoting Twombly, 555).
Iqbal provides that a complaint has “facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not
akin to a probability, but it asks for more than a shere possibility that a defendant
has acted unlawfully.” Id.
Bearing in mind this legal standard for determining whether a complaint
satisfies the sufficiencies to state a claim, Plaintiff’s complaint does not state a
claim. Plaintiff alleges Defendant is liable for the tortious acts of breach of
contract, civil conspiracy, negligence per se, negligence, and tortious interference.
To state a claim, and subsequently survive a motion for dismissal, the factual
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matter in Plaintiff’s complaint when accepted as true must allow the court to point
to the probability that the defendant acted unlawfully. Plaintiff must make plausible
how Defendant committed the tortious acts alleged; that Defendant engaged in the
tortious acts of negligence, negligence per se, tortious interference, and breach of
contract, and that these actions harmed Plaintiff. However, assuming as true only
factual allegations in Plaintiff's complaint does not point towards Defendant acting
liable with respect to the alleged claims. Plaintiff’s factual allegations point
towards no actionable conduct.
An analysis of Plaintiff’s Complaint (amended for the fourth time) fails to
survive the legal standard for stating a claim. Plaintiff begins by providing
backstory to their entire allegation of stated injury Plaintiff’s Complaint as
Updated, Statement of Facts 1-4. Plaintiff then makes a legal conclusion (and
mistrusion) about Defendant’s policybook in an attempt to formulate a tortious
claim Statement 5. Plaintiff follows this with more statements that offer to suggest
that Plaintiff let employees resign without giving Plaintiff his letter of apology;
which does not support any stated tortious allegations. Here, Plaintiff did not
sufficiently demonstrate-nor can Plaintiff demonstrate, that the resignation of the
former employees by Defendant are actionable under Plaintiff’s alleged torts.
Plaintiff then makes several statements regarding his termination of employment
from Defendant. However; in doing so, Plaintiff acknowledges Defendant’s
administrative action that purports him being terminated for “employees must not
engage in or promote a negative work environment, employees may not harass
individuals or other employees while representing the company, and employees
must act without bias or nepotism when interacting with the community and other
employees.” Because in such a dismissal where the Court must determine whether
Plaintiff states a claim, the Court must accept this factual statement as true.
Plaintiff continues to state that he was exiled from the group (which is consistent
with the term termination. Plaintiff then jumps to assert that as a result of his
termination, he received “consequences” in other departments. While Defendant is
not a department in the colloquial sense that Plaintiff is using it, Plaintiff failed to
lead this Court into believing that Defendant, with probability, is a factor in the
alleged “consequences.” Further, Plaintiff cannot tie these claims into a tort in a
manner that would satisfy the necessary elements. Finally, all content under
Plaintiff’s Allegations section is ultimately considered legal conclusions, and must
be supported by factual statements to survive a motion to dismiss per Iqbal. Since
Plaintiff fails to provide facts that state a claim, Plaintiff’s legal conclusions are
ultimately discarded as well. Since the Plaintiff’s complaint is deficient under Rule
8, dismissal is demanded under Rule 12.
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STANDING
Courts only have the constitutional, and lawful, capacity to adjudicate
matters for which there exists a case or controversy. The duty to demonstrate
whether there exists a case or controversy rests at the hands of the plaintiff.
Justiciability has many prongs, including standing and ripeness. A plaintiff,
generally speaking, demonstrates standing when they “have suffered an injury in
fact” where “there must be a causal connection between the injury and the conduct
complained of” and “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561 (1992) (internal quotations removed). In Lujan, the Court
announces that “an injury in fact” is one that is an “actual an invasion of a legally
protected interest which is concrete and particularized” and "actual or imminent,
not conjectural or hypothetical," Id. (internal quotations removed). The Court
further explores how a causal connection is one where the injury is “fairly ...
trace[able] to the challenged action of the defendant, independent action of some
third party not before the court." Id. citing Simon v. Eastern Ky. Welfare Rights
Organization, 426 U. S. 26, 41-42 (1976). Thus, Plaintiff’s complaint must
concretely and particularly demonstrate how Defendant violated their legally
protected interests.
Defendant has already established that Plaintiff’s complaint is deficient in
stating a claim, thus, the analysis of whether it charges Defendant with a particular
injury-and states whether the relief will satisfy that injury-is straightforward.
Plaintiff did not suffer an injury-in-fact. For each of the tortious acts Plaintiff
alleges, Plaintiff was not injured. Instead, as evidenced by Plaintiff’s complaint,
Plaintiff began litigation because Defendant investigated some employees, and
those employees resigned. Plaintiffs cannot claim injury for the resignation of
those employees, for if anyone was injured by their resignation, it would be
Defendant for losing two valuable members of their workforce. Plaintiff does not
provide how his termination resulted in his injury, moreover that his supposed
consequences of the injury were a direct result of Defendant’s consequences.
Mostly, Plaintiff cannot articulate how the alleged actions of Defendant amount to
a violation of Plaintiff’s legally protected interests. Plaintiff’s complaint submits
that Defendant breached a contract, with whom?, conspired, with whom?, was
negligent and negligent per se, to whom, and engaged in the acts of tortious
interference, against whom? Yet, the complaint is wholly deficient in describing
how Plaintiff was actually injured and cannot even be viewed in the eyes of a
third-party skeptic to see a causal connection between Defendant, Plaintiff, the
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alleged tortious actions, and factual allegations. Furthermore, Plaintiff fails to show
how the relief requested would satisfy the injuries specified. Since the Plaintiff
lacks standing, dismissal is demanded.
VEXATIOUS IN NATURE
The Court should defer to, and recognize, that Plaintiff’s claims are
inherently vexatious in nature. Plaintiff initiates this manner contemporaneously
with another manner. The alleged claims, facts, and allegations are nearly identical.
See Tomskipetski5 v. zac2524 (RSC-CV-379). In recognition of Plaintiff’s
impropriety to litigating with respect to the rules promulgated for practicing in the
Superior Court, and the rules of professional conduct for attorneys, the Court
should declare Plaintiff’s claims and filings as vexatious or frivolous in nature, and
take any subsequent actions as seemingly fit.
DEMAND FOR PREJUDICE
Various federal circuits have weighed in on when a prejudicial dismissal
should apply. In Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965), the Ninth
Circuit held that a litigant, a Plaintiff may be offered the opportunity to amend, in
other words, making the dismissal without prejudice, “unless it clearly appears
from the complaint that the deficiency cannot be overcome by amendment.” By
this, a complaint should be dismissed with prejudice when no amendment to the
complaint would suffice to remedy the deficiencies. Plaintiff’s complaint fails to
meet the standard for stating a claim and standing. In essence, Plaintiff would need
to rewrite and reformulate their entire pleading in order to have any chance of
survival-if perhaps conceivable-under Iqbal and Lujan. Thus, no amendment to
Plaintiff’s complaint would suffice to make the complaint not deficient.
Accordingly, the matter should be dismissed with prejudice.
Respectfully submitted,
/s/ spencernixon
Counsel of Record
General Counsel of StudsPerSecond
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