Miller v. Ashton

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JOSHUA D. MILLER,

Plaintiff,

v. Civil Action No. 5:19CV212

(STAMP)

RICK L. ASHTON,

TODD NEUMAN and

JAMES DONALD MILLER, JR.,

Defendant.

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFF’S MOTION TO REMAND AND

GRANTING DEFENDANTS ASHTON AND NEUMAN’S MOTION TO DISMISS

I. Background

The plaintiff in this civil action, Joshua D. Miller

(“Miller”), filed his complaint (ECF No. 1-1) against defendants

Richard Lee Ashton (hereinafter “Ashton”), Todd Neuman (hereinafter

“Neuman”), and James Donald Miller, Jr. (hereinafter “James”) in

the Circuit Court of Ohio County, West Virginia. ECF No. 1-7.

According to plaintiff Miller’s complaint, “[t]his case stems from

the wrongful, fraudulent, and false action brought against

Plaintiff by Defendants[,]” that was filed in the Court of Common

Pleas, Belmont County, Ohio, and captioned as Nancy K. Miller v.

Joshua D. Miller, et al., 17-CV-425 [(hereinafter “Ohio action”)].”

ECF No. 1-1 at 4, 9. Plaintiff Miller asserts that the defendants

“used a 78 year old woman to bring a lawsuit she did not want to

bring and did not understand.” Id. Plaintiff Miller further

asserts that “[o]ne defendant, a family member, forced the lawsuit

under the ruse of Power of Attorney of his own mother so that he

could continue to gather all of the assets of his father’s estate.

The two other defendants, Ohio lawyers, used the elderly woman, to

bill nearly $100,000 in legal fees for a lawsuit she did not want

to bring, did not understand, did not read before filing, and

clearly disavowed under testimony in open court.” Id.

Plaintiff Miller clarifies that he and defendant James are

both the biological children of James D. Miller (hereinafter

“J.D.”), who is deceased, and Nancy K. Miller (hereinafter

“Nancy”). Id. at 5. Plaintiff Miller states that J.D. put

defendant James’ name on a deed that effectively transferred half

of a piece of approximately 120 acres of undeveloped real estate in

Wheeling, West Virginia, and a month later, J.D. died. Id. at 6.

Plaintiff Miller asserts that J.D. suffered substantial

deterioration near the end of his life due to his long time medical

diagnoses. Id. Plaintiff Miller states that some time between

J.D.’s death and May 2015, David Croft, a lawyer who referred Nancy

as a client to defendants Ashton and Neuman, drafted power of

attorney paperwork, giving defendant James the power over Nancy’s

affairs. Id. at 5, 6. Plaintiff Miller further contends that

defendant James convinced and/or tricked Nancy into signing a deed,

transferring the remaining half of the 120 acres to him and his

wife. Id. at 6. Plaintiff Miller alleges that Nancy has a will in

effect that has been unchanged since 1988, in which she gives all

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of her estate equally to her three children, and that she testified

in Belmont County, Ohio that she and J.D. wanted each of her

children treated the same. Id. Plaintiff Miller also alleges that

defendant James: (1) collects rent on Nancy’s childhood home, of

which she owns half, but that he does not forward any portion of

rent to Nancy; (2) transferred legal title to Nancy’s personal

motor vehicle into his own name; (3) continues to live in the

former family home, rent free; and (4) wasted hundreds of thousands

of dollars of estate money. Id. at 7. Plaintiff Miller then

alleges that in 2017, Nancy signed two deeds transferring about 120

acres of property in Belmont County, Ohio to the plaintiff with

reservation of oil and gas rights to Nancy. Id. Plaintiff Miller

states that defendant James “badgered” Nancy and convinced her to

sue the plaintiff for return of the property, and that defendants

Ashton and Neuman relied on facts provided to them by defendant

James, and not Nancy, when initiating, and throughout, the Ohio

action. Id. at 8. Plaintiff Miller states that Nancy testified in

the Ohio action that she did not understand the purpose of the

action, did not intend to bring it, and did not read the materials

associated with the action. Id. at 9. In the complaint, plaintiff

Miller alleges claims of fraud (Count One); malicious prosecution

(Count Two); abuse of process (Count Three); and defamation (Count

Four). Id. at 12-16.

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A. Motion to Remand

Defendants Neuman and Ashton removed this civil action to this

Court on July 5, 2019. ECF No. 1. In the notice of removal,

defendants Neuman and Ashton assert that this Court has

jurisdiction over the matter pursuant to 28 U.S.C. § 1332 because

the parties are of diverse citizenship and the amount in

controversy exceeds $75,000.00, exclusive of interest and costs.

ECF No. 1 at 2-3. Defendants Neuman and Ashton assert that

although defendant James is a resident of West Virginia, like

plaintiff Miller, he was fraudulently joined and/or mis-joined for

the purpose of trying to defeat diversity jurisdiction; therefore,

his consent is not required. Id. Specifically, in support of

their contention that defendant James was fraudulently joined

and/or mis-joined, defendants Neuman and Ashton state that: (1)

this instant action is based on claims that the Ohio action was

tortious, and the record is “clear” that defendant James was not a

party to that action; (2) all the counts in plaintiff Miller’s

complaint are without merit with respect to defendant James; (3)

defendant James will not be subject to the litigation privilege and

thus any claim against him would involve separate and independent

questions of fact and law; and (4) plaintiff Miller has made the

same assertions of misconduct against defendant James in a separate

action filed in the Circuit Court of Ohio County, West Virginia,

captioned Joshua D. Miller, individually and as potential heir of

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Nancy K. Miller v. James D. Miller, Jr., individually and as Power

of Attorney for Nancy K. Miller, 18-C-76. Id. at 4-14.

On August 2, 2019, plaintiff Miller filed a motion to remand,

in which he asserts that complete diversity does not exist in this

case, and so the action must be remanded. ECF No. 9 at 5.

Specifically, plaintiff Miller states that the fraudulent joinder

argument fails since defendant James filed an answer and

affirmative defenses, not a motion to dismiss, and due to Nancy’s

prior testimony. Id. Moreover, plaintiff Miller alleges that the

case, Joshua D. Miller, individually and as potential heir of Nancy

K. Miller v. James D. Miller, Jr., individually and as Power of

Attorney for Nancy K. Miller, 18-C-76, is not “duplicitous” of this

instant action. Id. at 5-6.

Defendants Ashton and Neuman then filed a response in

opposition to the plaintiff’s motion to remand. ECF No. 11.

Defendants Ashton and Neuman first assert that plaintiff Miller

does not have a claim against defendant James for the following

reasons: (1) plaintiff Miller’s malicious prosecution, abuse of

process, and defamation claims are time-barred; (2) plaintiff

Miller has failed to make the required specific allegations of

false statements underlying his claims; and (3) plaintiff Miller

has failed to allege the required elements of his claims against

defendant James and therefore has no cognizable claims against

defendant James. Id. at 4-14. Moreover, Ashton and Neuman contend

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that defendant James’ filing of an answer has no effect on whether

federal jurisdiction is proper in this civil action for the

following reasons: (1) a fraudulently joined defendant does not

need to consent in order for other defendants to remove a civil

action; (2) the propriety of removal must be analyzed on the basis

of the state court complaint at the time of removal; and (3) the

doctrine of fraudulent joinder allows a district court to

disregard, for jurisdictional purposes, the citizenship of

non-diverse defendants, assume jurisdiction over a case, and

dismiss the non-diverse defendants. Id. Defendants Ashton and

Neuman further note that in his answer, defendant James has

asserted that plaintiff Miller has failed to state a claim against

him. Id. at 15. Lastly, defendants Ashton and Neuman contend that

plaintiff Miller has failed to join his claims against defendant

James in a pending lawsuit against defendant James captioned as

Joshua D. Miller, individually and as potential heir of Nancy K.

Miller v. James D. Miller, Jr., individually and as Power of

Attorney for Nancy K. Miller, 18-C-76; and therefore, he is

precluded from raising such issues in this instant action. Id.

Plaintiff Miller then filed a reply. ECF No. 14. First,

plaintiff Miller states that diversity jurisdiction does not exist

since defendant James was not fraudulently joined. Id. at 1.

Second, plaintiff Miller asserts that any alleged motive in filing

this civil action is not relevant to the jurisdictional issue. Id.

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Third, in addressing defendants Ashton and Neuman’s contentions

pertaining to the applicability of certain statutes of limitations,

plaintiff Miller states that: (1) the defendants’ collective

actions constitute a continuous tort; (2) the statute of

limitations has not run for the malicious prosecution claims

because the underlying action was resolved less than one year ago;

and (3) the statute of limitations for fraud is two years. Id. at

1-2. Moreover, plaintiff Miller asserts that whether a claim is

barred by a statute of limitations is not relevant for deciding

jurisdiction. Id. at 2. Fourth, plaintiff Miller alleges that the

pending case Joshua D. Miller, individually and as potential heir

of Nancy K. Miller v. James D. Miller, Jr., individually and as

Power of Attorney for Nancy K. Miller, 18-C-76, involves different

issues than the issues presented in this instant civil action. Id.

B. Defendants Ashton and Neuman’s Motion to Dismiss

Prior to plaintiff Miller’s filing of a motion to remand (ECF

No. 8), defendants Ashton and Neuman filed a motion to dismiss the

plaintiff’s complaint (ECF No. 4) and a memorandum in support of

the motion (ECF No. 5). In support of the motion to dismiss,

defendants Ashton and Neuman first assert that the Court of Common

Pleas rejected the same arguments that are raised by plaintiff

Miller in this instant complaint. ECF No. 5 at 6. Specifically,

defendants Ashton and Neuman state that a jury found in favor of

Nancy and against plaintiff, on claims based on violations of West

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Virginia and Ohio law related to theft and financial exploitation

of an elderly person, and that Nancy was awarded damages, including

attorneys’ fees and costs. Id. Second, defendants Ashton and

Neuman contend that they are immune from plaintiff Miller’s claims

due to the absolute litigation privilege. Id. at 7-10. Third,

defendants Ashton and Neuman assert that there can be no finding of

fraud in the prosecution of the Ohio action since the allegations

in that action have been found legally sufficient as a matter of

law by a court of competent jurisdiction, and a jury rendered

verdicts against plaintiff Miller, finding him liable to Nancy for

conversion, breach of fiduciary duty, violating West Virginia Code

§ 61-2-29b, violating Ohio Revised Code § 2913.21, acting in bad

faith in violating Ohio Revised Code § 2913.21; and unjust

enrichment. Id. at 11-12. Moreover, defendants Ashton and Neuman

contend that plaintiff Miller fails to plead a fraud claim with the

required particularity. Id. at 12. Fourth, defendants Ashton and

Neuman state that plaintiff Miller has failed to state a claim for

malicious prosecution due to his failure to allege any of the three

elements required for such a claim. Id. at 14. Fifth, defendants

Ashton and Neuman assert that plaintiff Miller has failed to state

a claim for abuse of process because he does not allege an

“improper use” of the Ohio court’s process. Id. at 15. Sixth,

defendants Ashton and Neuman contend that plaintiff Miller has

failed to state a claim for defamation since the Court of Common

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Pleas and a jury of that court concluded that the claims asserted

in the Ohio action were meritorious. Id. at 16. Seventh,

defendants Ashton and Neuman state that they are entitled to

dismissal based on lack of personal jurisdiction since plaintiff

cannot establish specific jurisdiction. Id. at 16-23.

Plaintiff Miller filed a response in opposition to defendants

Ashton and Neuman’s motion to dismiss. ECF No. 7. First,

plaintiff states that defendants Ashton and Neuman are not entitled

to the absolute litigation privilege due to the fraud exception,

which also applies to allegations of malicious prosecution. Id. at

2-3. Second, plaintiff contends that he has sufficiently pled a

claim for fraud, which is based on the allegation that defendants

Ashton and Neuman relied on defendant James’ representation of

facts pertaining to the Ohio action and in light of Nancy’s alleged

testimony that she did not know about the lawsuit or participate in

selecting defendants Ashton and Neuman in representing her. Id. at

3-4. Third, plaintiff Miller asserts that dismissal of his claims

based on abuse of process and defamation is not warranted because

“[t]he malice of Defendants here is their desire to pursue a claim

to harm Miller while being definitely disproven by the open

testimony of the alleged ‘victim’ of Miller.” Id. at 5. Moreover,

plaintiff Miller states “malice can also be found in the defamation

claim in Count Four of the Complaint[,]” stating that defendants

Ashton and Neuman continued to pursue their claims in the Ohio

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action despite Nancy’s statements, and “other additional facts.”

Id. at 5-6. Fourth, plaintiff Miller contends that this Court has

personal jurisdiction over defendants Ashton and Neuman since: (1)

the defendants transact business in West Virginia; (2) Nancy signed

pertinent documents in West Virginia; and (3) the defendants took

a deposition in West Virginia. Id. at 7-8. Therefore, plaintiff

concludes, defendants Ashton and Neuman “purposefully availed

themselves to the state of West Virginia for the purpose of

profiting from their legal business. This deliberate conduct

combined with the actions taken in West Virginia in continuing

their lawsuit created a substantial connection with the forum state

of West Virginia and therefore personal jurisdiction over

Defendants is warranted.” Id. at 8.

Defendants Ashton and Neuman filed a reply to plaintiff

Miller’s response in opposition to the defendants’ motion to

dismiss. ECF No. 10. First, defendants Ashton and Neuman assert

that plaintiff Miller has failed to meet the required pleading

standard since most of the complaint contains “nothing more than

family history and conclusory allegations.” Id. at 2-4. Second,

defendants Ashton and Neuman state that plaintiff Miller has failed

to state a claim for fraud since he fails to plead fraud with

specificity, does not meet all the elements required for such a

claim, and does not explain why the absolute litigation privilege

would not apply. Id. at 4-6. Third, defendants Ashton and Neuman

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assert that plaintiff Miller has failed to state a claim for

malicious prosecution, noting that Nancy testified in support of

the claims asserted in the Ohio action, and that the jury in the

Ohio action rendered verdicts against the plaintiff. Id. at 6-8.

Fourth, defendants Ashton and Neuman contend that plaintiff Miller

has failed to state a claim for abuse of process, because he does

not make an allegation of provable fact as to how they improperly

used the process issued by the Court of Common Pleas of Belmont

County, Ohio. Id. at 8-9. Fifth, defendants Ashton and Neuman

state that plaintiff Miller has failed to state a claim for

defamation since he has failed to allege the essential elements of

the claim, and because the defendants are protected by the absolute

litigation privilege. Id. at 9-10. Sixth, with respect to

personal jurisdiction, defendants Ashton and Neuman maintain that

even if plaintiff Miller’s allegations are true, the plaintiff has

not provided authority to counter their point that such activity is

insufficient to assert specific personal jurisdiction. Id.

at 11-12.

II. Applicable Law

A. Motion to Remand

A defendant may remove a case from state court to federal

court in instances where the federal court is able to exercise

original jurisdiction over the matter. 28 U.S.C. § 1441. Federal

courts have original jurisdiction over primarily two types of

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cases: (1) those involving federal questions under 28 U.S.C.

§ 1331; and (2) those involving citizens of different states where

the amount in controversy exceeds $75,000.00, exclusive of interest

and costs pursuant to 28 U.S.C. § 1332(a). However, if federal

jurisdiction arises only by virtue of the parties’ diverse

citizenship, such an action “shall be removable only if none of the

. . . defendants is a citizen of the State in which such action is

brought.” Tomlin v. Office of Law Enforcement Tech.

Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W.

Va. May 7, 2007). The party seeking removal bears the burden of

establishing federal jurisdiction. See In re Blackwater Security

Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v.

Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.

1994). Removal jurisdiction is strictly construed, and if federal

jurisdiction is doubtful, the federal court must remand. Hartley

v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29

F.3d at 151.

Further, the court is limited to a consideration of facts on

the record at the time of removal. See Lowrey v. Alabama Power

Co., 483 F.3d 1184, 1213–15 (11th Cir. 2007) (“In assessing whether

removal was proper . . . the district court has before it only the

limited universe of evidence available when the motion to remand is

filed.”); O’Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL

2551163 (N.D. W. Va. June 27, 2011); Marshall v. Kimble, 5:10CV127,

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2011 WL 43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The defendant’s

removal cannot be based on speculation; rather, it must be based on

facts as they exist at the time of removal.”).

B. Defendants Ashton and Neuman’s Motion to Dismiss Pursuant to

Federal Rule of Civil Procedure 12(b)(2) for Lack of Personal

Jurisdiction

When a court’s power to exercise personal jurisdiction over a

nonresident defendant is challenged by a motion under Rule 12(b)(2)

of the Federal Rules of Civil Procedure, the plaintiff bears the

burden of proving the existence of the grounds for jurisdiction by

a preponderance of the evidence. Owens-Illinois, Inc. v. Rapid Am.

Corp., (In re The Celotex Corp.), 124 F.3d 619, 628 (4th Cir. 1997)

(citing Combs v. Bakkar, 886 F.2d 673, 676 (4th Cir. 1989)).

Under a “long-arm” statute, such as West Virginia Code

§ 56-3-33, a state may enable its courts to exercise personal

jurisdiction over nonresidents that commit certain acts within the

state, or certain acts outside of the state, that have caused

injury within the state. See Lozinski v. Lozinski, 408 S.E.2d 310,

315 (W. Va. 1991) (“The intent and benefit of any long-arm statute

is to permit the secretary of state to accept process on behalf of

a nonresident and to view such substituted acceptance as conferring

personal jurisdiction over the nonresident.”). Because the West

Virginia long-arm statute is coextensive with the full reach of the

Due Process Clause of the United States Constitution, it is

unnecessary to go through the normal two-step formula for

13

determining the existence of personal jurisdiction. In re Celotex

Corp., 124 F.3d 619, 627-28 (4th Cir. 1997). Instead, the

“statutory inquiry merges with the Constitutional inquiry,” and

this Court must determine whether exercising personal jurisdiction

is consistent with the Due Process Clause. Id. at 628; see World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).

Due process requires that a defendant receive adequate notice

of the suit and be subject to the personal jurisdiction of the

court. Id. (citations omitted). The exercise of personal

jurisdiction over a nonresident defendant is proper only so long as

“minimum contacts” exist between the defendant and the forum state,

“such that maintenance of the suit does not offend ‘traditional

notions of fair play and substantial justice.” Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,

311 U.S. 457, 463 (1940)).

If the defendant’s contacts within the forum state provide the

basis for the suit, those conducts may establish “specific

jurisdiction.” Carefirst of Md., Inc. v. Carefirst Pregnancy

Centers, Inc., 334 F.3d 390, 397 (4th Cir. 2003). To determine

whether specific jurisdiction exists, this Court considers: “(1)

the extent to which the defendant has purposefully availed itself

of the privilege of conducting activities in the state; (2) whether

the plaintiffs’ claims arise out of those activities directed at

the state; and (3) whether the exercise of personal jurisdiction

14

would be constitutionally ‘reasonable.’” Id. (quoting ALS Scan,

Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th

Cir. 2002)).

If the defendant’s contacts with the state are not the basis

for the suit, however, then jurisdiction “must arise from the

defendant’s general, more persistent, but unrelated contacts with

the state.” Id. A plaintiff establishes general jurisdiction by

showing that the defendant’s activities in the state have been

“continuous and systematic.” Id. (citing Helicopteros Nacionales

de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n.9 (1984)).

C. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(6) for Failure to State a Claim

In assessing a motion to dismiss for failure to state a claim

under Rule 12(b)(6), a court must accept all well-pled facts

contained in the complaint as true. Nemet Chevrolet, Ltd v.

Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).

However, “legal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement fail to

constitute well-pled facts for Rule 12(b)(6) purposes.” Id.

(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). This

Court also declines to consider “unwarranted inferences,

unreasonable conclusions, or arguments.” Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

The purpose of a motion under Rule 12(b)(6) is to test the

formal sufficiency of the statement of the claim for relief; it is

15

not a procedure for resolving a contest about the facts or the

merits of the case. 5B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule

12(b)(6) motion also must be distinguished from a motion for

summary judgment under Federal Rule of Civil Procedure 56, which

goes to the merits of the claim and is designed to test whether

there is a genuine issue of material fact. Id. For purposes of

the motion to dismiss, the complaint is construed in the light most

favorable to the party making the claim and essentially the court’s

inquiry is directed to whether the allegations constitute a

statement of a claim under Federal Rule of Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough

facts to state a claim to relief that is plausible on its face.’”

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial

plausibility is established once the factual content of a complaint

‘allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Nemet Chevrolet,

591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949). Detailed

factual allegations are not required, but the facts alleged must be

sufficient “to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

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III. Discussion

Where, as here, a motion to remand and a Rule 12(b)(6) motion

to dismiss are both made, it is ordinarily improper to resolve the

Rule 12(b)(6) motion before deciding the motion to remand.

Therefore, this Court will first address plaintiff Miller’s motion

to remand (ECF No. 8) and will then address defendants Ashton and

Neuman’s motion to dismiss (ECF No. 4).

A. Motion to Remand

There is no dispute as to the amount in controversy

requirement under 28 U.S.C. § 1332(a). The only issue is whether

defendant James was fraudulently joined by plaintiff Miller.

A defendant is fraudulently joined if a court finds that

either “no cause of action is stated against the nondiverse

defendant, or in fact no cause of action exists.” AIDS Counseling

and Testing Centers v. Group W. Television, Inc., 903 F.2d 1000,

1003 (4th Cir. 1990); see also Hartley, 187 F.3d at 424 (“To show

fraudulent joinder, the removing party must demonstrate either

outright fraud in the plaintiff’s pleading of jurisdictional facts

or that there is no possibility that the plaintiff would be able to

establish a cause of action against the in-state defendant in state

court.”). If defendant James was fraudulently joined to the claims

then total diversity of citizenship exists between the parties, and

this Court has jurisdiction. Accordingly, the case could not be

remanded to state court. Alternatively, if defendant James was not

17

fraudulently joined as a defendant, the case must be remanded to

state court. If there is “clear and convincing evidence” of “a

real possibility that the plaintiff has stated a cause of action”

against defendant James “after resolving all issues of fact and law

in the plaintiff’s favor[,]” then this Court would not find that

defendant James was fraudulently joined. Hartley, 187 F.3d 422,

424 (4th Cir. 1999) (quoting Marshall v. Manville Sales Corp.,

6 F.3d 229, 232 (4th Cir. 1993)). “A claim need not ultimately

succeed to defeat removal; only a possibility of a right to relief

need be asserted.” Marshall, 6 F.3d at 232-33 (citations omitted).

“Once the court identifies this glimmer of hope for the plaintiff,

the jurisdictional inquiry ends.” Hartley, 187 F.3d at 426. A

claim of fraudulent joinder places a heavy burden on a defendant.

See Marshall, 6 F.3d at 232.

As discussed below, this Court finds that defendant James was

fraudulently joined. Therefore, plaintiff Miller’s motion to

remand must be denied.

1. Count One — Fraud

In order to plead a claim for fraud, a plaintiff must allege

the following:

(1) that the act claimed to be fraudulent was the act of

the defendant or induced by him; (2) that it was material

and false; (3) that plaintiff relied on it and was

justified under the circumstances in relying upon it; and

(4) that he was damaged because he relied on it.

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Syl. Pt. 5, Folio v. City of Clarksburg, 221 W. Va. 397, 399 (2007)

(quotation and citation omitted).

Under this standard, plaintiff Miller fails to adequately

establish any fraud claim in this action. Specifically, plaintiff

Miller has failed to plead in his complaint sufficient facts that

indicate that he relied on any representations made by defendants

Ashton and Neuman, and that he was damaged because of such

reliance.

2. Count Two – Malicious Prosecution

Under West Virginia law, “[a]n action for malicious

prosecution must be brought within one year of the termination of

the action alleged to have been maliciously prosecuted.” Syl Pt.

1, McCammon v. Oldaker, 205 W. Va. 24, 26 (W. Va. 1999) (emphasis

added). Termination is defined as “the trial court’s entry of its

final order which terminates litigation between the parties and

leaves nothing to be done but to enforce the execution of what has

been determined.” Id. at 32. The Ohio action was filed on

December 20, 2017 (ECF No. 1-4; ECF No. 1-5) and plaintiff Miller

was served on December 22, 2017 (ECF No. 1-4 at 3). The verdict in

the Ohio action was entered on June 28, 2019 (ECF No. 1-4 at

18-19). Plaintiff Miller then filed this instant action in the

Circuit Court of Ohio County on June 18, 2019 (ECF No. 1-1), which

was later removed to this Court on July 5, 2019 (ECF No. 1).

Indeed, defendants Ashton and Neuman indicate that “[a]t the time

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[the plaintiff] filed [this instant complaint], June 18, 2019, the

Belmont County action had not yet been submitted to the jury and no

verdict rendered.” ECF No. 11 at 10. Therefore, the statute of

limitations does not prevent plaintiff Miller from asserting a

malicious prosecution claim.

However, this Court believes that plaintiff Miller’s claim for

malicious prosecution fails to meet the pleading standards of

Federal Rule of Civil Procedure 8(a)(2). Under West Virginia law,

to maintain an action for malicious prosecution it is essential to

prove (1) that the prosecution was malicious, (2) that it was

without reasonable or probable cause, and (3) that it terminated

favorably to plaintiff.” Syl. Pt. 1, Preiser v. MacQueen, 177 W.

Va. 273 (W. Va. 1985) (citing Lyons v. Davy-Pocahontas Coal Co., 75

W. Va. 739 (W. Va. 1915)). Here, plaintiff Miller did not allege

sufficient facts that demonstrate that the filing of the Ohio

action was malicious. Further, probable cause seems to have

existed for the filing of the Ohio action, as the jury found that

plaintiff Miller committed conversion, a breach of a fiduciary

duty, violated West Virginia Code § 61-2-29b, violated R.C.

§ 2913.21, and that he was unjustly enriched. ECF No. 1-4 at

18-19. Accordingly, this Court finds that plaintiff Miller has

failed to adequately establish a malicious prosecution claim.

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3. Count Three — Abuse of Process

Similarly, an action for abuse of process must be brought

within one year from the termination of the acts which constitute

the abuse complained of. Syl. Pt. 3, Preiser, 177 W. Va. at 273.

However, “[u]nlike an action for malicious prosecution where a

legal termination of the prosecution complained of is essential, in

an action for abuse of process it is not necessary.” Id. at 280.

“A cause of action for abuse of process has been generally held to

accrue, and the statute of limitations to commence to run, from the

termination of the acts which constitute the abuse complained of,

and not the completion of the action in which the process issued.”

Id.

As stated above, the verdict of the Ohio action was entered

June 28, 2019 (ECF No. 1-4 at 18-19), and the plaintiff filed this

instant action in the Circuit Court of Ohio County on June 18, 2019

(ECF No. 1-1), which was later removed to this Court on July 5,

2019 (ECF No. 1). The plaintiff alleges that the claims in the

Ohio action are alleged to be crimes of dishonesty and that those

claims have been “definitively disproven and disavowed by the [Ohio

action] plaintiff herself.” ECF No. 1-1 at 14. The plaintiff

states that the defendants had an opportunity to dismiss those

claims but have not done so, continuing to abuse process against

plaintiff Miller.

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Given these allegations, the plaintiff’s abuse of process

claim is not barred by the statute of limitations. See Ali v.

Raleigh County, 5:17-cv-03386, 2018 WL 1582722, at *11 (S.D. W. Va.

Mar. 29, 2018) (finding a plaintiff’s abuse of process claim is not

barred by the statute of limitations since the plaintiff alleged

that the defendants wrongfully arrested the plaintiff, and

continued to do so as they conspired to coordinate their

testimonies and failed to disclose exculpatory evidence).

However, like this Court’s finding as to plaintiff Miller’s

malicious prosecution claim, this Court believes that the

plaintiff’s claim for abuse of process fails to meet the pleading

standards of Federal Rule of Civil Procedure 8(a)(2).

“Generally, abuse of process consists of the willful or

malicious misuse or misapplication of lawfully issued process to

accomplish some purpose not intended or warranted by that process.”

Syl. Pt. 3, Williamson v. Harden, 214 W. Va. 77, 78 (W. Va. 2003)

(quoting Preiser, 177 W. Va. at 279; Syl. Pt. 2, Wayne County Bank

v. Hodges, 175 W. Va. 723, 724 (W. Va. 1985)).

The Preiser court differentiated an abuse of process claim

from a malicious prosecution claim, stating:

Abuse of process differs from malicious prosecution in

that the gist of the tort is not commencing an action or

causing process to issue without justification, but

misusing, or misapplying process justified in itself for

an end other than that which it was designed to

accomplish. The purpose for which the process is used,

once it is issued, is the only thing of importance.

Consequently in an action for abuse of process it is

22

unnecessary for the plaintiff to prove that the

proceeding has terminated in his favor, or that the

process was obtained without probable cause or in the

course of a proceeding begun without probable cause

. . .

The essential elements of abuse of process, as the tort

has developed, have been stated to be: first, an ulterior

purpose, and second, wilful act in the use of the process

not proper in the regular conduct of the proceeding. Some

definite act or threat not authorized by the process, or

aimed at an objective not legitimate in the use of the

process, is required; and there is no liability where the

defendant has done nothing more than carry out the

process to its authorized conclusion, even though with

bad intentions. The improper purpose usually takes the

form of coercion to obtain a collateral advantage, not

properly involved in the proceeding itself, such as the

surrender of property or the payment of money, but the

use of the process as the threat or club. There is, in

other words, a form of extortion, and it is what is done

in the course of negotiation, rather than the issuance or

any formal use of the process itself, which constitutes

the tort.

Preiser, 177 W. Va. at 278, n. 8 (quoting W. Prosser, Handbook of

the Law of Torts § 121 (1971) (emphasis added); see also Southern

States Cooperative Inc. v. I.S.P. Co., Inc., 198 F. Supp. 2d 807,

816 (finding that payment of attorney fees and other expenses

associated with the litigation do not prevent dismissal of an abuse

of process counterclaim).

Here, plaintiff Miller has failed to allege sufficient facts

indicating that any of the defendants willfully abused the process

after the filing of the Ohio action. Specifically, plaintiff

Miller has failed to allege facts that indicate that any of the

defendants engaged in “forms of extortion” that West Virginia law

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requires. Therefore, plaintiff Miller has failed to allege an

abuse of process claim upon which relief can be granted.

4. Count Four — Defamation

Under West Virginia law, “[a]n action for defamation is

subject to a one-year statute of limitations.” Garrison v. Herbert

J. Thomas Mem’l Hosp. Ass’n, 190 W. Va. 214, 221 (W. Va. 1993)

(citations omitted). “[I]n defamation actions, the period of the

statute of limitations begins to run when the fact of the

defamation becomes known, or reasonably should have become known,

to the plaintiff.” Padon v. Sears, Roebuck & Co., 186 W. Va. 102,

105 (W. Va. 1991).

The Ohio action complaint was filed on December 20, 2017. See

ECF No. 1-4; ECF No. 1-5. Plaintiff Miller was served with the

Ohio action complaint on December 22, 2017 (see ECF No. 1-4 at 3)

and filed the instant action on June 18, 2019. ECF No. 1-1.

Plaintiff Miller asserts that the defendants’ collective

actions constitute a collective tort. The concept of continuing

tort requires a showing of repetitious, wrongful, conduct.

However, even if this Court were to assume without deciding

that plaintiff Miller’s defamation claim is not time-barred and

that the continuous tort theory applies, his defamation claim

should be dismissed because the plaintiff fails to meet the

pleading standards of Federal Rule of Civil Procedure 8(a)(2).

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Under West Virginia law, a plaintiff seeking to prove a

defamation action must establish the following elements: “(1)

defamatory statements; (2) a nonprivileged communication to a third

party; (3) falsity; (4) reference to the plaintiff; (5) at least

negligence on the part of the publisher; and (6) resulting injury.”

Crump v. Beckley Newspapers, Inc., 173 W. Va. 699 (W. Va. 1984).

Therefore, in order to survive a motion seeking to dismiss his

defamation claim, plaintiff Miller must have pled sufficient facts

as to each of the elements such that the Court can find his claim

plausible on its face.

As to the first element of his claim, plaintiff Miller must

allege that defamatory statements were made against him. “A

statement may be described as defamatory ‘if it tends so to harm

the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing

with him.’” Crump, 173 W. Va. at 706 (citing Restatement (Second)

of Torts § 559 (1977)). Moreover, “[d]irect defamatory statements

are not an absolute prerequisite to recovery, [] because defamation

may also be accomplished through inference, implication, innuendo,

or insinuation.” Id.

Here, plaintiff Miller alleges that defendant James pressured

Nancy to file the Ohio action. ECF No. 1-1 at 8. Without

specifying particular statements made in the Ohio action, plaintiff

Miller states that the Ohio action complaint “contains numerous

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false statements which were against any and all evidence presented

during the prosecution of the [Ohio action] lawsuit.” ECF No. 1-1

at 9. Because defamatory statements do not need to be direct, the

allegations asserted in the Ohio action could defame plaintiff

Miller. Specifically, the Ohio action complaint asserted that

plaintiff Miller: (1) fraudulently misappropriated tens of

thousands of dollars from his father’s trucking company; (2)

fraudulently used a credit card in his mother’s name and defaulted

on the credit card agreement; and (3) defrauded his mother into

transferring real estate to him. ECF No. 1-5 at 5-7. Plaintiff

Miller’s esteem in the community could decline based on such

allegations; trust in him could dwindle so that others may not want

to associate with him. Therefore, although a close question due to

the brevity of facts alleged in the complaint, plaintiff Miller has

sufficiently alleged the first element of his defamation claim.

The second element of a defamation claim requires that the

defamatory statements be a nonprivileged communication to a third

party. There are absolute privileges and qualified privileges.

“Absolute privilege[s] [are] limited to those situations ‘where

there is an obvious policy in favor of permitting complete freedom

of expression, without any inquiry as to the defendant’s motives.’”

Crump, 173 W. Va. at 706 (citing W. Prosser, The Law of Torts § 796

(1964)). “With a few exceptions . . . absolutely privileged

communications are limited to legislative, judicial and quasi-

26

judicial proceedings and other acts of the State.” Parker v.

Appalachian Electric Power Co., 126 W. Va. 666, 672 (W. Va. 1944).

The privilege “protects a party to a private litigation . . . from

liability for defamation irrespective of his purpose in publishing

the defamatory matter, of his belief in its truth or even his

knowledge of its falsity.” Collins v. Red Roof Inns., Inc., 566

S.E.2d 595, 599 (2002) (citing Restatement (Second) of Torts § 587,

cmt. a).

Plaintiff Miller seems to allege that defendant James used

defendants Ashton and Neuman to spread defamatory statements

against the plaintiff “in the Complaint and continue[d] to be made

in further pleadings in the [Ohio action].” ECF No. 1-1 at 15.

However, based on the law set forth above, any potentially

defamatory statements made by defendants Ashton and Neuman during

the Ohio action cannot be considered nonprivileged communications.

Therefore, plaintiff Miller has failed to allege sufficient factual

matter to state a plausible claim for relief on this element of his

defamation claim.

This Court notes that plaintiff Miller has also failed to show

that certain defamatory statements are false as the jury in the

Ohio action found that plaintiff Miller was liable to Nancy for

conversion, breach of fiduciary duty, violating West Virginia Code

§ 61-2-29b, violating Ohio Revised Code § 2913.21, acting in bad

27

faith in violating Ohio Revised Code § 2913.21; and unjust

enrichment. ECF No. 1-4 at 18-19.

Thus, because plaintiff Miller has failed to sufficiently

allege claims based on fraud, malicious prosecution, abuse of

process, or defamation, this Court finds that there is no

possibility that the plaintiff would be able to establish a cause

of action against the in-state defendant James. Therefore, this

Court finds that defendant James was fraudulently joined, and the

plaintiff’s motion to remand must be denied. This Court dismisses

non-diverse defendant James as a defendant and retains jurisdiction

over this civil action. See Johnson v. American Towers, LLC, 781

F.3d 693, 704 (4th Cir. 2015) (“[T]he fraudulent joinder doctrine

‘effectively permits a district court to disregard, for

jurisdictional purposes, the citizenship of certain nondiverse

defendants, assume jurisdiction over a case, dismiss the nondiverse

defendants, and thereby retain jurisdiction.’”) (citing Mayes v.

Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).

B. Defendants Ashton and Neuman’s Motion to Dismiss Pursuant to

Federal Rule of Civil Procedure 12(b)(2) for Lack of Personal

Jurisdiction

In support of exercising personal jurisdiction, plaintiff

Miller alleges that defendants Ashton and Neuman performed work and

services in West Virginia throughout the time period the Ohio

action was pending, providing legal services in West Virginia. ECF

No. 7 at 7. Specifically, plaintiff Miller indicates that Nancy

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signed pertinent documents related to the Ohio action in West

Virginia, and that defendants Ashton and Neuman took depositions in

West Virginia. Id. at 7-8.

Defendants Ashton and Neuman mainly assert that their actions

in West Virginia were created by plaintiff Miller and not the

defendants, citing case law pertaining to personal jurisdiction

over out-of-state defendants who have represented clients in forum

states. ECF No. 5 at 16-18; ECF No. 10 at 12.

There is ample support in case law that “providing out-of-

state representation is not enough to subject an out-of-state

lawyer or law firm to the personal jurisdiction of the state in

which a client resides.” Capital Markets Corp., v. Raymer LLC,

2:10-cv-00116, 2011 WL 1259053, at *3 (S.D. W. Va. Mar. 30, 2011)

(quoting Cape v. von Maur, 932 F. Supp. 124, 128 (D. Md. 1996)).

Moreover, “[w]hen a case involves legal representation by an out-

of-state law firm, courts emphasize the importance of . . . who

initiated the contact.” Masselli & Lane, P.C. v. Miller & Schuh,

P.A., 215 F.3d 1320, at *2 (4th Cir. 2000) (unpublished table

decision). However, a defendant who reaches out to the forum state

may still lack the necessary connection to establish personal

jurisdiction. Stover v. O’Connell Associates, Inc., 84 F.3d 132

(4th Cir. 1996) (finding that a defendant could not reasonably have

anticipated being haled into court by occasionally telephoning

investigation firms within the forum state and where no employees

29

were present in the forum state); see also Cape v. von Maur, 932 F.

Supp. at 928 (holding that out-of-state attorney-defendants did not

direct their actions at the forum state when their contact resulted

from the plaintiff’s residency in the forum state). “Th[e] inquiry

is directed at addressing the Supreme Court’s instruction to

consider whether the defendant has purposefully directed activities

toward the forum state ‘in more than a random, fortuitous, or

attenuated way.’” City Capital Markets Corp., 2011 WL 1259053, at

*4 (citing Allen v. James, 381 F. Supp. 2d 495, 497 (E.D. Va. 2005)

(finding that telephone calls and other forms of correspondence

directed at the forum state were sufficient to confer personal

jurisdiction when the attorney-defendants agreed to represent the

plaintiffs in litigation involving an accident that occurred within

the forum state)). Case law has emphasized the importance of where

the out-of-state attorneys perform their work. See Clark v. Milam,

830 F. Supp. 316, 323 (S.D. W. Va. 1993) (emphasizing that the

subject law firms were to perform legal work connected with

proceedings in their own states — not the forum state).

Here, defendants Ashton and Neuman entered into a contract to

perform certain services for a resident of West Virginia. However,

the underlying action occurred in Ohio and much of the services

provided by defendants Ashton and Neuman seem to have occurred in

Ohio, with the final resolution of the action in Ohio. Although

plaintiff Miller names an occurrence where defendants Ashton and

30

Neuman traveled to West Virginia, the defendants clarify that they

traveled to the office of plaintiff Miller’s counsel in order to

conduct a deposition pertaining to the Ohio action. As defendants

Ashton and Neuman correctly indicate in their reply to their motion

to dismiss (ECF No. 10), this link to West Virginia was created by

plaintiff Miller. This Court finds that plaintiff Miller has not

met his burden of proving the existence of grounds for personal

jurisdiction by a preponderance of the evidence. This Court agrees

with the majority of precedent that “providing out-of-state legal

representation is not enough to subject an out-of-state lawyer or

law firm to the personal jurisdiction of the state in which the

client resides.” Cape v. von Maur, 932 F. Supp. at 128 (citations

omitted).

C. Defendants Ashton and Neuman’s Motion to Dismiss Pursuant to

Federal Rule of Civil Procedure 12(b)(6) for Failure to State a

Claim

However, even if this Court were to assume that it has

personal jurisdiction over defendants Ashton and Neuman, this Court

finds that defendants Ashton and Neuman’s motion to dismiss should

be granted. In addressing their motion, this Court extends the

analysis set forth above with respect to the fraudulent joinder

issue. Specifically, this Court finds that plaintiff Miller has

failed to allege claims based on fraud, malicious prosecution,

abuse of process, and defamation upon which relief can be granted.

31

Furthermore, this Court finds that defendants Ashton and

Neuman are entitled to absolute immunity with respect to plaintiff

Miller’s defamation and abuse of process claims due to the

litigation privilege.

The litigation privilege is generally applicable to bar a

civil litigant’s claim for civil damages against an opposing

party’s attorney if the alleged act of the attorney occurs in the

course of the attorney’s representation of an opposing party and is

conduct related to the civil action.” Clark v. Druckman, 218 W.

Va. 427, 434 (W. Va. 2005). “Further, the litigation privilege

generally operates to preclude actions for civil damages arising

from an attorney’s conduct in the litigation process.” Id. at 435.

“[The litigation privilege] extends to all statements or

communications in connection with the judicial proceeding . . . as

long as the communications are related to the prospective judicial

action.” Collins, 211 W. Va. at 462 (quoting Hawkins v. Harris,

141 N.J. 207, 216 (N.J. 1995). Importantly, “the litigation

privilege extends beyond claims of defamation to claims of abuse of

process.” Barefield v. DPIC Companies, Inc., 215 W. Va. 544, 560

(W. Va. 2004).

In this civil action, defendants Ashton’s and Neuman’s actions

and communications at issue with respect to the defamation and

abuse of process claims were performed in their role as attorneys

for Nancy in the Ohio action, and plaintiff Miller has not

32

presented sufficient evidence to the contrary. In fact, plaintiff

Miller’s complaint attaches and refers to the actions of defendants

Ashton and Neuman as they relate to the underlying Ohio action.

However, this Court notes that defendants Ashton and Neuman

are not entitled to absolute immunity with respect to plaintiff

Miller’s fraud and malicious prosecution claims. See Clark, 218 W.

Va. at 434 (“[A] fraud claim against a lawyer is no different from

a fraud claim against anyone else . . . [T]he fact [a lawyer]

committed fraud in the capacity of attorney for a client does not

relieve him of liability.”); Barber v. Sedgwick Claims Management

Services Inc., 3:14-27349, 2017 WL 1027593, at *3 (S.D. W. Va. Mar.

16, 2017) (“[The] absolute litigation privilege does not extend to

acts of fraud or malicious prosecution.”). However, as explained

above, since plaintiff Miller has failed to sufficiently plead his

claims of fraud and malicious prosecution, those claims are

dismissed as well.

Accordingly, this Court grants the motion to dismiss of

defendants Ashton and Neuman (ECF No. 4).

IV. Conclusion

For the above reasons, this Court finds that defendant James

Donald Miller, Jr. was fraudulently joined, and therefore, must be

DISMISSED from the above-styled action. Consequently, this Court

finds that it has subject matter jurisdiction in this civil action

under 28 U.S.C. § 1332(a). Accordingly, the motion to remand of

33

plaintiff Joshua D. Miller (ECF No. 8) is DENIED. Moreover, the

motion to dismiss of defendants Rick L. Ashton and Todd Neuman (ECF

No. 4) is GRANTED.

It is further ORDERED that this civil action be DISMISSED and

STRICKEN from the active docket of this Court.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein. Pursuant to Federal

Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment

on this matter.

DATED: October 21, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

34