Turner v. Turner

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ELKINS

DAVID SHANE TURNER,

Plaintiff,

v. Civ. Action No. 2:20-CV-16

(Judge Kleeh)

NANCY A. TURNER,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

Pending before the Court is Defendant’s Motion to Dismiss for

Lack of Personal Jurisdiction and Improper Venue Or, in the

Alternative, To Transfer Venue to the Middle District of Florida

[ECF No. 5]. For the reasons discussed herein, the Motion is

GRANTED.

I. INTRODUCTION

On June 26, 2020, Plaintiff David Shane Turner (“Plaintiff”)

filed a Complaint against Defendant Nancy A. Turner (“Defendant”)

alleging six (6) causes of action. [ECF No. 1]. Plaintiff brings

claims of alleged breaches of Defendant’s trustee duties for two

revocable trusts, Phyllis J. Daugherty Revocable Trust and David

G. Daugherty Revocable Trust. [ECF No. 1, Compl.]. An affidavit of

service was returned executed, showing that Defendant was served

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

by substitute service under Rule 4 of the Federal Rules of Civil

Procedure on September 11, 2020. [ECF No. 4]. On October 1, 2020,

Defendant filed a Motion to Dismiss Plaintiff’s Complaint. [ECF

No. 5]. Plaintiff responded in opposition on October 15, 2020.

[ECF No. 6]. Defendant’s reply was filed on October 22, 2020. [ECF

No. 7]. Defendant’s Motion to Dismiss [ECF No. 5] is fully briefed

and is the subject of this Memorandum Opinion and Order.

II. FACTS

Plaintiff is the son of Defendant and the grandson of David

G. Daugherty, deceased, and Phyllis J. Daugherty, deceased.1 [ECF

No. 1, Compl. at ¶ 1]. Plaintiff is a resident of Buckhannon, West

Virginia. Id. Defendant is a resident of Bushnell, Florida. Id. at

¶ 2. The David G. Daugherty Revocable Trust dated January 24, 1994

(“David Daugherty Trust”) was executed by David Daugherty under

the laws of the State of Florida; therefore, the David Daugherty

Trust is a citizen of the State of Florida. Id. at ¶ 3. Similarly,

the Phyllis Daugherty Revocable Trust dated January 24, 1994

(“Phyllis Daugherty Trust”) was executed by Phyllis Daugherty

under the laws of the State of Florida; therefore, the Phyllis

1 The Court takes the facts from the complaint and construes them

in the light most favorable to Plaintiff Lane. See De’Lonta v.

Johnson, 708 F.3d 520, 524 (4th Cir. 2013).

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

Daugherty Trust is a citizen of the State of Florida. Id. at ¶ 4.

Plaintiff brings this action to the Northern District of West

Virginia under diversity jurisdiction and alleges, as a qualified

beneficiary, he is entitled to one half the value of the David

Daugherty Trust, overcoming the $75,000.00 threshold. Id. at ¶¶ 5,

46; 28 U.S.C. § 1332.

On the date both trusts were established, David Daugherty was

named as initial trustee of the David Daugherty Trust and Phyllis

Daugherty was named as initial trustee of the Phyllis Daugherty

Trust. Id. at ¶¶ 6-7. On October 31, 2006, David Daugherty died.

Id. ¶ at 8. Pursuant to the Last Will and Testament of David

Daugherty, after payment of debts and expenses, and distribution

of property, all other property was to be distributed as part of

the residue of his estate to the trustee of the David Daugherty

Trust. Id. ¶ at 9. David Daugherty appointed his wife, Phyllis

Daugherty as successor trustee, and Defendant as successor

trustee, or second alternative, in the event Phyllis Daugherty

would be unable or unwilling to act. Id. at ¶ 10.

On May 16, 2007, Phyllis Daugherty “resigned/waived her

ability to serve as executrix of David Daugherty’s Last Will and

Testament and Mrs. Turner accepted her subsequent appointment as

executrix of the Estate of David Daugherty’s Last Will and

Testament.” Id. at ¶ 11. On April 18, 2008, Phyllis Daugherty died

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

and left a Last Will and Testament of Phyllis J. Daugherty. Id. at

¶¶ 13-14. After the payment of debts and expenses, and distribution

of property, all other property was to be distributed as part of

the residue of her estate to the trustee of the Phyllis Daugherty

Trust. Id. ¶ at 14. Likewise to her role of executrix in the Estate

of David Daugherty, Defendant accepted her appointment as

executrix of the Estate of Phyllis Daugherty. Id. at ¶ 15.

Defendant closed Phyllis Daugherty’s estate on January 20, 2009,

without a final accounting. Id. at ¶ 16.

On January 5, 2007, Defendant was appointed as trustee of the

Phyllis Daugherty Trust, and on April 18, 2008, Defendant became

successor trustee of the David Daugherty Trust. Id. at ¶¶ 17-18.

Relevant to Plaintiff’s claims in the Complaint, Defendant

“served, or continues to serve, as (A) the executrix of the Estate

of David Daugherty; (B) the executrix of the Estate of Phyllis

Daugherty; (C) the sole trustee of the David Daugherty Trust, and

(D) the sole trustee of the Phyllis Daugherty Trust.” Id. at ¶ 19.

The David Daugherty Trust Agreement (“Trust Agreement”) requires

the application of the laws of Florida and granted each successor

trustee – pertinent here, Defendant - all of the rights,

privileges, and powers, both discretionary and ministerial,

granted to the original Trustee and shall incur all of the duties

and obligations imposed upon the said original Trustee,” which

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

are: “[to] keep and maintain adequate books and records reflecting

all income and principal transactions, which books and records

shall be open at all reasonable times to the inspection of the

Beneficiaries of this Trust and their duly authorized

representatives.” Id. at ¶¶ 20-23. After the deaths of David

Daugherty and Phyllis Daugherty, Defendant and Plaintiff are the

primary beneficiaries2 of the David Daugherty Trust. Id. at ¶ 24.

“[T]he assets held by the David Daugherty Trust had a value in

excess of $600,000.00 upon [Defendant] becoming the trustee.” Id.

at ¶ 3. Now, “the assets held by the David Daugherty Trust has a

current value in excess of $250,000.00.” Id. at ¶ 3.

Under the Florida Trust Code, a trustee’s duties include the

duty to administer the trust in good faith, duty of loyalty, duty

of impartiality, duty to administer as a prudent person would,

duty to incur only reasonable expenses, duty to protect trust

property, duty to clearly identify trust property and to keep

accurate records of its administration, duty to inform and account

to qualified beneficiaries, and duty to invest trust property in

accordance with the law and the prudent investor rule. Id. at ¶

28. Also under the code, “upon any reasonable request, the trustee

2 “Beneficiary” means a person who has a present or future

beneficial interest in a trust, vested or contingent, or who holds

a power of appointment over trust property in a capacity other

than that of trustee. FLA. STAT. § 736.0103(4) (2007).

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

shall[:] provide a qualified beneficiary with relevant information

about the assets and liabilities of the trust along with other

particulars about the trust’s administration”; “[provide] trust

accountings to qualified beneficiaries at least annually as well

as upon termination of a trust”; [and] maintain [clear, distinct,

and accurate] records of a trust’s administration.” Id. at ¶¶ 29-

31; Fla. Stat. § 736.0103(1).

Plaintiff received a full and accurate copy of the Trust

Agreement on June 8, 2020, for the first time, and was never

provided the Phyllis Daugherty Trust Agreement. Id. at ¶¶ 37-38.

Despite numerous requests by Plaintiff, Defendant has never

provided Plaintiff with an accounting of the David Daugherty Trust

or the Phyllis Daugherty Trust. Id. at ¶¶ 39-40.

On June 26, 2020, Plaintiff filed a Complaint alleging the

following causes of action:

1) Breach Duty to Inform and Account the David Daugherty

Trust

2) Breach Duty to Inform and Account the Phyllis Daugherty

Trust

3) Breach of Duty of Loyalty owed to the David Daugherty

Trust

4) Breach of Duty of Loyalty owed to the Phyllis Daugherty

Trust

5) Breach of Duty to Identify Trust Property and Keep

Accurate Records of the David Daugherty Trust, and

6) Breach of Duty to Identify Trust Property and Keep

Accurate Records of the Phyllis Daugherty Trust

Compl., ECF No. 1.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

III. LEGAL STANDARD

When a defendant files a Federal Rule of Civil Procedure

12(b)(2) motion to dismiss for lack of personal jurisdiction, the

plaintiff bears the ultimate burden of showing that jurisdiction

exists by a preponderance of the evidence. New Wellington Fin.

Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir.

2005). However, where a court makes a Rule 12(b)(2) determination

without a hearing and based only on the written record, as the

Court does here, the plaintiff need only put forth a prima facie

showing of jurisdiction “by pointing to affidavits or other

relevant evidence.” Henderson v. Metlife Bank, N.A., No. 3:11-cv-

20, 2011 WL 1897427, at *6 (N.D. W. Va. May 18, 2011); see also

New Wellington Fin. Corp., 416 F.3d at 294. The Court must then

“construe all relevant pleading allegations in the light most

favorable to the plaintiff, assume credibility, and draw the most

favorable inferences for the existence of jurisdiction.” New

Wellington Fin. Corp., 416 F.3d at 294; see also 5B Wright &

Miller, Federal Practice and Procedure § 1351 (3rd. ed.).

Under Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure,

a federal district court may exercise personal jurisdiction over

a defendant to the same degree that a counterpart state court could

do so. See Diamond Healthcare of Ohio, Inc. v. Humility of Mary

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

Health Partners, 229 F.3d 448, 450 (4th Cir. 2000). Importantly as

a result, for a district court to have jurisdiction over a

nonresident defendant, the exercise of jurisdiction (1) must be

authorized under the state’s long-arm statute, and (2) must comport

with the due process requirements of the Fourteenth Amendment.

Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334

F.3d 390, 396 (4th Cir. 2003) (citing Christian Sci. Bd. of Dirs.

of the First Church of Christ v. Nolan, 259 F.3d 209, 215 (4th

Cir. 2001)). As West Virginia’s long-arm statute provides

jurisdiction to the full extent allowable under the United States

Constitution, see W. Va. Code § 56-3-33, the Court need only

consider whether the exercise of personal jurisdiction would

comport with the Due Process Clause.

West Virginia’s long-arm statute provides jurisdiction in a

West Virginia court when a defendant is: (1) transacting business

in the State; (2) contracting to supply services or things in the

State; (3) causing injury by an act or omission in the State; (4)

regularly doing or soliciting business, engaging in a persistent

course of conduct, or deriving substantial revenue from goods used

or consumed or services rendered in the State; (5) causing injury

by breach of warranty expressly or impliedly made in the sale of

goods outside the State; (6) having an interest in, using, or

possessing real property in the state; or (7) contracting to insure

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

any person, property, or risk located within the State at the time

of contracting. W. Va. Code § 56-3-33(a)(1)-(7).

For a district court to assert jurisdiction over a nonresident

defendant within the confines of due process, the defendant must

have “minimum contacts” with the forum state such that it is

consistent with “fair play and substantial justice.” Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945). The Fourth Circuit,

following the United States Supreme Court, states that an out-of-

state defendant must have minimum contacts that are purposeful to

help “ensure that non-residents have fair warning that a particular

activity may subject them to litigation within the forum.” In re

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

Whether a defendant possesses such minimum contacts is

analyzed by looking to whether the plaintiff seeks to establish

“specific” or “general” jurisdiction. Specific jurisdiction occurs

when the defendant’s contacts with the forum state form the basis

of the suit. Carefirst, 334 F.3d at 397. In determining whether a

defendant’s contacts support the exercise of specific

jurisdiction, a district court considers the following: “(1) the

extent to which the defendant has purposefully availed itself of

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

the plaintiff’s claims arise out of those activities directed at

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

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

would be constitutionally ‘reasonable.’” Id. at 396.

Where the defendant’s contacts are unrelated to the basis of

the suit, a court must look to the requirements of general

jurisdiction. Id. at 397. The standard for finding the existence

of general jurisdiction is high: the defendant must have

“continuous and systematic” contacts with the forum state.

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

416(1984); see also ESAB Group, Inc. v. Centricut, 126 F.3d 617,

623 (4th Cir. 1997) (“[T]he threshold level of minimum contacts

sufficient to confer general jurisdiction is significantly higher

than for specific jurisdiction.”). The hallmark of general

jurisdiction is that the defendant’s contacts with the forum state

are so extensive that it should reasonably foresee being haled

into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980).

IV. DISCUSSION

Defendant filed a motion to dismiss [ECF No. 5] pursuant to

Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil

Procedure, arguing (1) the Court lacks general and specific

personal jurisdiction over Defendant thereby requiring a

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

dismissal, and in the alternative, (2) a transfer of this case to

the Middle District of Florida where Defendant lives would be

proper.3 [See ECF No. 9]. Plaintiff responded in opposition to the

motion maintaining Defendant is subject to personal jurisdiction

and the complaint survives dismissal because Defendant and/or her

authorized agent engaged in repeated direct communications,

transmitted documents, and other information about the Trust

within the State of West Virginia to the Plaintiff. [ECF No. 6].

Plaintiff falls short of his prima facie burden in the

personal jurisdiction inquiry; therefore, the Complaint must be

dismissed. Fed. R. Civ. P. 12(b)(2). Defendant persuasively argues

the Court does not have personal jurisdiction over Defendant

because there are insufficient minimum contacts with the forum

State to render the exercise of jurisdiction over the Defendant

constitutionally permissible. [See ECF No. 5]. Plaintiff alleges

that Defendant, a Florida resident, has sufficient contacts with

West Virginia such that she availed herself of this jurisdiction

and justifies the Court’s exercise of specific jurisdiction. [See

ECF No. 6]. Notable to the Court’s discussion regarding Defendant’s

contacts - or lack thereof – Plaintiff alleges that Defendant was

3 Because Plaintiff’s Complaint is dismissed for lack of personal

jurisdiction, the Court does not analyze Defendant’s second

argument for dismissal for improper venue under Rule 12(b)(3).

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

“put on notice” of this lawsuit being filed in West Virginia when

the parties were communicating about Plaintiff’s demand for an

accounting and additional Trust administration information. Id. It

appears these purported communications and document sharing

efforts purposefully availed Defendant of the forum state,

according to Plaintiff. Id.

However, the Court’s analysis here turns on these three

factors: “(1) the extent to which the defendant has purposefully

availed itself of the privilege of conducting activities in the

state; (2) whether the plaintiff’s claims arise out of those

activities directed at the state; and (3) whether the exercise of

personal jurisdiction would be constitutionally ‘reasonable.’”

Carefirst, 334 F.3d at 396. “The relationship [among the defendant,

the forum, and the litigation] must arise out of contacts that the

‘defendant himself’ creates with the forum State.” Walden v. Fiore,

571 U.S. 277 (2014) (citing Burger King Corp. v. Rudzewicz, 471 U.

S. 462, 475 (1985)). “Fairness is the touchstone of the

jurisdictional inquiry.” Universal Leather, LLC v. Koro AR, S.A.,

773 F.3d 553, 559 (4th Cir. 2014) (internal quotation and citation

omitted).

In the business context, the purposeful availment evaluation

is: (1) “whether the defendant maintains offices or agents in the

forum state;” (2) “whether the defendant owns property in the forum

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

state;” (3) “whether the defendant reached into the forum state to

solicit or initiate business;” (4) “whether the defendant

deliberately engaged in significant or long-term business

activities in the forum state;” (5) “whether the parties

contractually agreed that the law of the forum state would govern

disputes;” (6) “whether the defendant made in-person contact with

the resident of the forum in the forum state regarding the business

relationship;” (7) “the nature, quality and extent of the parties’

communications about the business being transacted;” and (8)

“whether the performance of contractual duties was to occur within

the forum.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553,

559 (4th Cir. 2014), (quoting Consulting Eng’rs Corp. v. Geometric

Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (citations omitted)). In

contrast, purposeful availment lacks in cases where “the locus of

the parties’ interaction was overwhelmingly abroad.” Tire Eng’g v.

Shandong Linglong Rubber Co., 682 F.3d 292, 302 (4th Cir. 2012).

“The residency of one or more trust beneficiaries or settlors

in a forum state alone has been found to be insufficient to find

that non-resident trustees meet the purposeful[] availment

standard.” Hoyt v. Groom, No. 2:18cv02800, 2020 WL 774380, *1, *4

(D.S.C. Feb. 18, 2020) (citing Hanson v. Denckla, 357 U.S. 235,

254 (1958)).

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

“[T]he trustee is an indispensable party over

whom the court must acquire jurisdiction

before it is empowered to enter judgment in a

proceeding affecting the validity of a trust.

It does not acquire that jurisdiction by being

the ‘center of gravity’ of the controversy, or

the most convenient location for litigation.

The issue is personal jurisdiction, not choice

of law. It is resolved . . . by considering

the acts of the trustee.”

Hanson v. Denckla, 357 U.S. 235, 254 (1958). In Hanson, the Supreme

Court held that a Florida court could not exercise personal

jurisdiction over an out-of-state trustee based solely on the

contacts of the trust’s settlor, who was a domiciliary of Florida

and had executed powers of appointment there, and the trustee had

remitted trust income to the settlor in that state. Id. at 252-

54. Therefore, when no trust assets have “been held or administered

in [the forum state], and the record discloses no solicitation of

business in that State either in person or by mail,” such evidence

weighs against a finding of sufficient contacts to exercise

personal jurisdiction. Id. at 251.

The question arises how Defendant Nancy Turner’s serving as

a trustee of a Florida trust and allegedly failing to administer

the trust in good faith and provide Plaintiff David Shane Turner

with an accounting of that trust amounts to Defendant’s

purposefully availing herself of the privileges of West Virginia

law. Even having only a prima facie burden, Plaintiff reaches here,

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

and ultimately fails. Plaintiff provided no evidence that

Defendant targets the forum state – West Virginia - with her

trustee duties or other activity. Defendant and both trusts are

residents of Florida, Defendant has not traveled to West Virginia

for over six (6) years, and has not directed any personal or

business activities to West Virginia since. ECF No. 5 at 13, ECF

No. 51, Def’s Dec., ¶ 7. Defendant has “never traveled to West

Virginia in her capacity as Trustee for either the D. Daugherty

Trust or the P. Daugherty Trust.” Def’s Dec., ¶ 7. Neither trust

owns real property in the State of West Virginia. Id. at ¶ 8. All

trust distributions occurred in the states of Florida and Ohio;

none in West Virginia. Id. at ¶ 14.

While Plaintiff points to two corporations owned in part by

Defendant, Interstate Amusement, Inc. and Daugherty - Gambill,

Inc., which operated and performed carnival and amusement-related

business during the summers in West Virginia from 1991 to 2018,

such evidence does not provide sufficient contacts of the Defendant

within the purview of this suit brought by Plaintiff. ECF No. 6-

1, Ex. A, Affidavit of David Shane Turner, ¶ 3. Plaintiff

effectively concedes the point in his response. “Thus, personal

jurisdiction over a defendant is warranted when a defendant has

“purposefully directed” his or her activities at residents of the

forum state and the litigation arises from and/or relates to the

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

defendant’s activities. Keeton v. Hustler Magazine, Inc., 465

U.S. 770, 774 (1984).” ECF No. 6 at 10-11 (emphasis added). “The

minimum contacts test requires the plaintiff to show that the

defendant ‘purposefully directed his activities at the residents

of the forum’ and that the plaintiff’s cause of action ‘arise[s]

out of’ those activities.” Burger King Corp. v. Rudzewicz, 471

U.S. 462, 473 (1985) (citation and quotations omitted).

Plaintiff goes on to list the five (5) letter correspondences

he or his attorneys have had with Defendant, which certainly does

not avail the defendant of this Court’s jurisdiction. Id. at ¶ 12.

The Court also cannot garner from the record – including all the

declarations, affidavits, and exhibits submitted - that Defendant

had fair warning that her trustee duties or other forum-related

activities would subject her to West Virginia’s jurisdiction.

There is no evidence relevant to the claims Plaintiff asserts here

that Defendant has contracts to be performed in the state, or

committed any tort in the state, or makes, sells, offers, or

supplies any products in the state. See Universal Leather, LLC v.

Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014); see also W. Va.

Code § 56-3-33. Any such contacts are wholly unrelated to

Defendant’s trustee obligations and performance. Absent some

effort to purposefully avail herself of this forum otherwise, it

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

would be constitutionally unreasonable to force Defendant to

defend herself here. See Carefirst, 334 F.3d at 396.

None of the recorded interactions with the forum state are

sufficient to support specific personal jurisdiction. General

jurisdiction, when a defendant is so “at home” in a forum state

that it is subjected to personal jurisdiction, is a harder burden

to meet and will not be discussed because Plaintiff failed to show

a prima facie case of specific jurisdiction. See ESAB Group, Inc.

v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997) (“the

threshold level of minimum contacts sufficient to confer general

jurisdiction is significantly higher than for specific

jurisdiction.”). Because Plaintiff falls short of his prima facie

burden in the personal jurisdiction inquiry, the Complaint must be

dismissed. Fed. R. Civ. P. 12(b)(2). The court declines to consider

Defendant’s alternative ground for dismissal under Rule 12(b)(3)

of the Federal Rules of Civil Procedure.

V. CONCLUSION

For the reasons discussed above, Plaintiff’s Complaint is

DISMISSED. The Motion to Dismiss is GRANTED [ECF No. 5].

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT NANCY A. TURNER’S MOTION TO DISMISS [ECF NO. 5]

DATED: September 29, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE