THE STATE OF RIDGEWAY
SUPERIOR COURT
TOMSKIPETSKI5,
Plaintiff,
v.
ZAC2524,
Defendant.
Case No.: RSC-CV-379
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, and negligence, To state a claim, and
subsequently survive a motion for dismissal, the factual matter in Plaintiff’s
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complaint when accepted as true must allow the court to point to the probability
that the defendant acted unlawfully. 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.
Let’s turn to statement by statement of the factual assertions made by
Plaintiff:
1. Factual Statement 1, if accepted as true, provides backstory, but does not
state a claim.
2. The same follows for Plaintiff’s Factual Statement 2-4.
3. Factual Statement 5 makes legal conclusions instead of asserting facts.
Additionally, this “statement of fact” is used to formulate a tortious
allegation; however, fails to satisfy the Twombly standard: stating that an
individual resigned was a violation of some contract does not state a claim.
Furthermore, fails to prove that Plaintiff is injured (see STANDING).
4. Factual Statement 6, if accepted as true, does not state a claim.
5. Factual Statement 7 purports backstory, and does not lead to a claim for
which Plaintiff seeks injury.
6. Factual Statement 8 is irrelevant. Plaintiff was not injured by the resignation
of Defendant, so ultimately he cannot state a claim for such (see
STANDING). Further, Defendant’s resignation was approved: if Defendant
absented himself his employer without permission, his status would not have
been marked as an approved resignation.
7. 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.
STANDING
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
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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.
Defendant 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, as part of a disciplinary action by his
former employer, was asked to produce a letter of apology-yet Defendant
subsequently resigned. Plaintiff cannot claim injury for the resignation of
Defendant, nor the lack of a letter of apology, because Plaintiff has no legally
protected interest in either. Plaintiff is not entitled to a letter of apology by virtue of
employment with StudsPerSecond, especially considering he entered into no
contractual form of employment with the company or Defendant. Moreover,
Plaintiff does not support, by factual allegations in his complaint, that Plaintiff’s
supposed injury is the result of Defendant’s unlawful or tortious conduct.
Furthermore, Plaintiff would fail 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. StudsPerSecond (RSC-CV-380). 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.
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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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