Lynch v. REM Community Options, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JASON SCOTT LYNCH,

Plaintiff,

v. Civil Action No. 2:17-cv-04310

REM COMMUNITY OPTIONS, LLC,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is REM Community Options, LLC’s (“REM”) motion

to dismiss or, alternatively, for a more definite statement,

filed November 17, 2017.

I. Factual and Procedural Background

Jason Scott Lynch (“Mr. Lynch”) is a West Virginia

resident. (Compl. ¶ 1.) REM is a West Virginia limited

liability company with its principal place of business in

Boston, Massachusetts.1 (Id. ¶ 2.) REM employed Mr. Lynch for

1 The complaint does not identify the exact services that REM

provides. As discussed more fully herein, the parties cite as

pertinent to Mr. Lynch’s claims against REM regulations under

title 64, series 11 of the West Virginia Code of State Rules,

titled “Behavioral Health Centers Licensure.” Presumably, then,

REM is a “center” under that series, which is defined as an

“entity that provides” “inpatient, residential or outpatient

service[s] for the care and treatment of persons with mental

nineteen years, most recently as one of its regional directors,

before terminating Mr. Lynch’s employment on May 9, 2017. (See

id. ¶¶ 3, 7.)

Before his termination, “[Mr. Lynch] made numerous

complaints about [REM’s] lack of direct service and nursing

staff and [REM’s] failure to follow treatment plans as a result

of the lack of these staffing.” (Id. ¶ 4.) Specifically, Mr.

Lynch complained to REM that the lack of staffing “resulted in

lack of nurses to monitor care of clients served by [REM], staff

working excessive hours to provide client care, lack of training

of staff members, [and] failure to administer medication as

required.” (Id. ¶ 5.) These problems caused Mr. Lynch “to

operate with uncertified staff passing medications due to lack

of nurses.” (Id. ¶ 6.)

Audits by KEPRO, an agency “under contract with the

West Virginia Department of Health and Human Resources

[(“WVDHHR”)] to monitor compliance by [REM] and others with the

IDD [intellectual/developmental disabilities] waiver program,”

showed that “[Mr. Lynch’s] area was equal to or better than

other areas of [REM’s] operation” regarding deficiencies

identified by KEPRO. (Id. ¶¶ 8-9.) Nevertheless, REM issued to

illness, developmental disabilities or substance abuse.” W. Va.

Code R. §§ 64-11-3.6, 3.7 (West 2018).

Mr. Lynch a “plan of correction,” with which Mr. Lynch always

complied. (Id. ¶ 10.)

On May 4, 2017, REM notified Mr. Lynch of his

termination, stating that Mr. Lynch had failed to “communicat[e]

the number of nurses needed during a reduction in work force,

hav[e] an established medication pass schedule, get[] bed bug

eradication treatments done as needed and hav[e] []sufficient

certified staff to pass medications.” (Id. ¶ 7.) Mr. Lynch

alleges, to the contrary, that he

reported the additional staffing needed both verbally

and in writing but [REM] refused to provide additional

nurses. . . . The medication pass schedule was

established as requested but [REM’s] failure and

refusal to adequately staff the positions resulted in

inability to timely implement medication pass schedule

for clients of [REM]. Bed bug treatment was ongoing

and [Mr. Lynch] was in no worse condition regarding

the bed bug infestation than were other regional

directors who were not disciplined by [REM] over this

issue. [Mr. Lynch] did lack certified staff to pass

medications, but the same situation existed in all

West Virginia offices and other regional directors . .

. were not disciplined for [this reason].

Additionally, [Mr. Lynch] had requested additional

direct care workers, nurses and supervisors from [REM]

for approximately two years preceding his termination

and was refused.

(Id.)

Mr. Lynch initiated this action in the Circuit Court

of Wood County, West Virginia, on October 2, 2017. He claims

that REM violated a substantial West Virginia public policy when

REM fired him “in retaliati[on] . . . for requesting adequate

staffing to provide patient care.” (Id. ¶ 11; accord id. ¶ 12.)

Mr. Lynch seeks lost wages and benefits, damages for emotional

distress, punitive damages, costs and attorney’s fees, and

reinstatement. (Id. WHEREFORE Clause.)

REM removed the action to this court on November 10,

2017, invoking the court’s diversity jurisdiction. See 28

U.S.C.A. §§ 1332(a)(1), 1441 (West 2018). On November 17, 2017,

REM moved to dismiss the complaint or, alternatively, for a more

definite statement. REM argues that Mr. Lynch has failed to

“plausibly allege any substantial public policy implicated by

REM’s decision to terminate his employment.” (Mem. Supp. 3.)

Alternatively, REM insists that a more definite statement

regarding “the specific standard [Mr. Lynch] alleges implicates

a substantial public policy” is necessary for it to reasonably

prepare a response. (Id. 15.)

II. Motion to Dismiss Standard

Federal Rule of Civil Procedure 8(a)(2) requires that

a pleading “contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief.”

Correspondingly, Rule 12(b)(6) provides that a pleading may be

dismissed for a “failure to state a claim upon which relief can

be granted.”

To survive a motion to dismiss, a pleading must recite

“enough facts to state a claim to relief that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Monroe v. City of Charlottesville, 579 F.3d

380, 386 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008)). In other words, the “[f]actual

allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (citation

omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“A claim 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.”); Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)

(quoting Twombly, 550 U.S. at 555).

A district court’s evaluation of a motion to dismiss

is underlain by two principles. First, when considering a

motion to dismiss, the court “must accept as true all of the

factual allegations contained in the [pleading].” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citation omitted); see also

Twombly, 550 U.S. at 555 (“Factual allegations must be enough to

raise a right to relief above the speculative level, . . . on

the assumption that all the allegations in the complaint are

true (even if doubtful in fact).”) (citations omitted). In

doing so, factual allegations should be distinguished from “mere

conclusory statements,” which are not to be regarded as true.

Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions.”). Second, the court must

“draw[] all reasonable factual inferences . . . in the

[nonmovant’s] favor.” Edwards v. City of Goldsboro, 178 F.3d

231, 244 (4th Cir. 1999); see also Jenkins v. McKeithen, 395

U.S. 411, 421 (1969) (“[T]he complaint is to be liberally

construed in favor of plaintiff.”).

III. Discussion

Mr. Lynch presents a Harless retaliatory discharge

action, which is a common-law action named as a reference to the

case in which the action originated, Harless v. First National

Bank in Fairmont, 162 W. Va. 116 (1978). The Harless court held

that

[t]he rule that an employer has an absolute right to

discharge an at will employee must be tempered by the

principle that where the employer's motivation for the

discharge is to contravene some substantial public

policy principle, then the employer may be liable to

the employee for damages occasioned by this discharge.

Syl., id. at 116. The Supreme Court of Appeals of West Virginia

instructs that the State’s “constitution, legislative

enactments, legislatively approved regulations, and judicial

opinions” are the “sources of public policy for purposes of

determining whether a retaliatory discharge has occurred.” Syl.

Pt. 6, Williamson v. Greene, 200 W. Va. 421, 423 (2000) (quoting

Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs., Corp., 188 W.

Va. 371, 372 (1992)). Furthermore, to be considered

“substantial,” the source of the public policy must “provide

specific guidance to a reasonable person.” Syl. Pt. 7, id.

(quoting Syl. Pt. 3, Birthisel, 188 W. Va. at 377); see also

Feliciano v. 7-Eleven, Inc., 210 W. Va. 740, 745 (2001) (“[T]o

be substantial, a public policy must not just be recognizable as

such but must be so widely regarded as to be evident to

employers and employees alike.”). “A determination of the

existence of public policy in West Virginia is a question of law

. . . .” Syl. Pt. 1, Cordle v. Gen. Hugh Mercer Corp., 174 W.

Va. 321, 322 (1984).

Mr. Lynch alleges that REM fired him in retaliation

for his complaints that REM was failing to comply with WVDHHR

staffing regulations. (Id. ¶¶ 5-6, 11-12.) Although Mr. Lynch

neglects to list in the complaint any particular regulation,

both parties in their briefs cite the following two regulations

as pertinent to Mr. Lynch’s claims:

The Center shall provide an adequate number of

qualified personnel during all hours of operation to

support the functions of the Center and ensure the

provisions of quality care. W. Va. Code R. Ann. § 64-

11-5.6.a (West 2018).

Within programs, groupings [of consumers] shall occur

that[] . . . [p]rovide staff to consumer ratios for

adequate protection and supervision. Id. § 64-11-

6.7.a.2.

(See Mem. Supp. 10; Resp. Opp’n 2; Reply Supp. 1.) Review of

the following definitions is necessary to understand these brief

provisions:

“Center” is defined as “an entity that provides

behavioral health services.” W. Va. Code R. Ann. §

64-11-3.7.

“Service” is defined as “a functional division of a

program; the delivery of care.” Id. § 64-11-3.43.

“Staff” is defined as “personnel paid by the center to

provide services.” Id. § 64-11-3.44.

“Program” is defined as “a system of services designed

to address the treatment needs of consumers.” Id. §

64-11-3.34.

And “consumer” is defined as “an individual receiving

treatment or services in or from the Center.” Id. §

64-11-3.9.

For reasons explained below, the court concludes that Mr. Lynch

has failed to identify a substantial public policy sufficient to

sustain his Harless retaliatory discharge action.2

2 Mr. Lynch’s failure to identify the source of substantial

public policy may alone be grounds for dismissing his Harless

action. See Wiley v. Asplundh Tree Expert Co., 4 F. Supp. 3d

840, 845 (S.D. W. Va. 2014) (Johnston, J.); cf. Roth v.

DeFeliceCare, Inc., 226 W. Va. 214, 221 (2010) (citing Syl. Pt.

8, Page v. Columbia Nat. Res., 198 W. Va. 378 (1996)) (“The

burden is on the plaintiff to establish the existence of a

substantial public policy.”). Nevertheless, “[t]he [c]ourt will

REM argues that these regulations are too vague and

general to constitute substantial public policy. (See Mem.

Supp. 10; Reply Supp. 3.) Indeed, the Supreme Court of Appeals

of West Virginia holds that “[a]n employer should not be exposed

to liability where a public policy standard is too general to

provide any specific guidance or is so vague that it is subject

to different interpretations.” Birthisel, 188 W. Va. at 377.

“[T]he policy principle [must] be clearly recognize[able],” id.,

and courts “must exercise restraint” when ascertaining whether

stated public policy is substantial, Yoho v. Triangle PWC, Inc.,

175 W. Va. 556, 561 (1985). With these considerations in mind,

our court of appeals has “recognized . . . [that] West Virginia

courts have proceeded with ‘great caution’ in applying public

policy to wrongful discharge actions.” Washington v. Union

Carbide Corp., 870 F.2d 957, 962 (4th Cir. 1989).

In particular, REM contends that the WVDHHR

regulations establish only “general standards and procedures for

the licensure of behavioral health services and programs.”

(Mem. Supp. 10-11. (quoting W. Va. Code R. § 64-11-1.1)

(emphasis omitted).) REM points out that § 64-11-5.6.a requires

behavioral health centers to provide “‘qualified personnel’ to

assume for the sake of efficiency in this litigation that the

[c]omplaint properly identified” the two WVDHHR regulations

produced above. Wiley, 4 F. Supp. 3d at 845.

support its ‘functions’ and ensure ‘quality care,’” noting that

the WVDHHR regulations fail to define each quoted term. (Id.

11.) REM insists that the rule’s use of “adequate” further

compounds the issue since the rule lacks “specific guidelines .

. . as to what is ‘adequate’” in this respect. (Id.)

Similarly, regarding § 64-11-6.7.a.2, REM highlights the

corresponding use of “adequate” in describing the number of

staff necessary to ensure “protection and supervision” of

consumers. (Reply Supp. 4 n.5.)

Mr. Lynch minimizes the lack of specificity in the

WVDHHR regulations. (See Resp. Opp’n 2.) He responds that “he

has alleged that [REM] was not complying with a condition of its

licensure, that he raised this concern, and that he was

terminated for it.” (Id.) Thus, according to Mr. Lynch, he has

stated a plausible Harless retaliatory discharge action because

there was a basis for his complaints to REM. (See id.)

Although he does not expressly say so, Mr. Lynch’s

response generally tracks the four elements of a Harless

retaliatory discharge action. Under a Harless retaliatory

discharge action, a plaintiff must prove the following:

1. That a clear public policy existed and was

manifested in a state or federal constitution, statute

or administrative regulation, or in the common law

(the clarity element).

2. That dismissing employees under circumstances like

those involved in the plaintiff's dismissal would

jeopardize the public policy (the jeopardy element).

3. The plaintiff's dismissal was motivated by conduct

related to the public policy (the causation element).

4. The employer lacked overriding legitimate business

justification for the dismissal (the overriding

justification element).

Herbert J. Thomas Mem. Hosp. Ass’n v. Nutter, 238 W. Va. 375,

386 (2016) (emphases in original and footnote omitted). REM, on

the other hand, questions only whether Mr. Lynch has adequately

plead the clarity element, (see Mem. Supp. 9-12), and the court

constrains its analysis to that point.

Both parties rely upon Tudor v. Charleston Area Med.

Ctr., Inc., 203 W. Va. 111 (1997). In that case, the Supreme

Court of Appeals of West Virginia found that West Virginia Code

of State Rules section 64-12-14.2.4, which “is part of a

regulatory scheme governing the licensure of hospitals,”

manifested a substantial public policy. See id. at 123-25. The

court quoted the regulation, promulgated by the WVDHHR, as

follows:

14.2.4. There shall be an adequate number of licensed

registered professional nurses to meet the following

minimum staff requirements:

. . .

d. A registered professional nurse shall be on

duty and immediately available for bedside care

of any patient when needed on each shift, 24

hours per day and seven days a week.

e. Licensed practical nurses as needed to

supplement registered professional nurses in

appropriate ratio to professional nurses.

f. Auxiliary workers as needed to provide

physical care and assist with simple nursing and

clerical procedures not requiring professional

nurses.

Id. at 123 (omission in original).

The Supreme Court of Appeals emphasized that the rule

mandated an “‘adequate’ number of registered nurses be available

to meet ‘minimum’ staffing requirements.” Id. (quoting W. Va.

Code R. § 64-12-14.2.4). Additionally, the court found highly

persuasive that the rule mandated a nurse be “immediately

available for bedside care of any patient when needed.” Id.

(emphasis in original) (quoting W. Va. Code R. § 64-12-14.2.4).

Thus, the court decided that “it does not take an in-depth

analysis . . . to hold that [the rule] sets forth a specific

statement of a substantial public policy” of providing immediate

medical care, protecting against inadequate staffing, and

assuring the provision of medical care to those “who must depend

upon others to protect their medical interests and needs.” Id.

at 124. In a footnote, the court also noted the existence of

additional supporting evidence, pertinent to the particular

facts of that case, indicating consistent staffing deficiencies,

unsafe staffing practices, and violations of various internal

staffing policies at the defendant hospital. Id. at 123 n.28.

REM contrasts the two WVDHHR regulations relied upon

in this case with the Tudor regulation, generally stating that

the two WVDHHR regulations “apply to all staff and do not

include any baseline by which a behavioral health facility could

measure whether it employs an adequate number of staff,” whereas

the Tudor regulation delineated the “minimum” staffing

requirement targeted at assuring the “immediate[]

availab[ility]” of “professional nurses.” (Reply Supp. 6; see

Mem. Supp. 12-14.) Mr. Lynch reads Tudor broadly, arguing that

both Tudor and this action involve a regulation promulgated by

the WVDHHR directed towards “maintain[ing] proper staff levels

in a facility.” (Resp. Opp’n 3.) Thus, Mr. Lynch insists that,

by virtue of the staff-related nature of the two WVDHHR

regulations, he has identified a substantial public policy.

(See id. 2-3.)

At the outset, Mr. Lynch, in urging the court to find

the outcome of Tudor controlling in this action because it also

involved a staffing regulation promulgated by the WVDHHR,

overstates the weight and character of precedent in the Harless

lineage of case law. Instead, “the particular circumstances of

each case” drive the determination of whether a substantial

public policy exists. Cordle, 174 W. Va. at 325 (quoting Allen

v. Commercial Cas. Ins. Co., 37 A.2d 37, 39 (N.J. 1944)); see

also Mitchell v. Broadnax, 208 W. Va. 36, 45 (2000), superseded

by statute on other grounds, W. Va. Code Ann. § 33-6-30(c) (West

2018) (“[D]ecision of a public policy issue is a legal query,

but such a determination is made on a case-by-case basis . . .

.”). Consequently, the substantial public policy decision in

Tudor is limited to the particular regulation at issue there.

The court notes that the WVDHHR regulations at issue

in this action are facially general and vague. Assuming

arguendo that terms such as “qualified personnel,” “quality

care,” and “functions” are sufficiently specific to guide a

reasonable person, there is nothing against which to measure

these terms. “Adequate” is the only guidance available. See W.

Va. Code R. Ann. §§ 64-11-5.6.a, 64-11-6.7.a.2. Surely,

“adequate” staffing is anchored to the provision of “quality

care” and “protection and supervision,” but this leads to

circular reasoning. For example, an adequate staff is that

which can ensure quality care, while quality care is that which

is provided by an adequate staff.

Moreover, “adequate” as it is used here is not a

static concept. What is adequate one day does not account for

the vagaries of the “consumers” served by behavioral health

centers. See, e.g., W. Va. Code R. § 64-11-7.3 (describing the

individualized, case-by-case basis on which behavioral health

centers must assess treatment plans for each consumer). Thus,

the court – and surely employers – are left to guess whether and

when a behavioral health center has complied with the WVDHHR

regulations. In other words, the WVDHHR regulations, on their

own, fail to “provide specific guidance to a reasonable person.”

Syl. Pt. 7, Williamson, 200 W. Va. at 423.

Reference to Tudor is fairly unilluminating. The

Supreme Court of Appeals in Tudor acknowledged that it did not

discuss in any detail the substantial public policy issue. See

203 W. Va. at 124. Perhaps, then, it is most appropriate to

note the differences between the Tudor regulation and the WVDHHR

regulations at issue here. Most striking is the Tudor

regulation’s mandate that a nurse be “immediately available,”

while the WVDHHR regulations simply state in general terms that

“qualified personnel” be present in “adequate” numbers during

business hours and that the personnel-to-consumer ratio be such

that ensures “adequate protection and supervision.” Compare id.

at 123 with W. Va. Code. R. Ann. §§ 64-11-5.6.a, 64-11-6.7.a.2.

As REM points out, the Tudor regulation at least provides a

baseline – immediate availability of nurses - against which a

regulated entity could measure its practices.

Although the WVDHHR regulations do not, by themselves,

express a substantial public policy, the Supreme Court of

Appeals does not read statements of policy in a vacuum. In

Frohnapfel v. ArcelorMittal USA LLC, “the petitioners cited only

to the [West Virginia Water Pollution Control Act’s] express

declaration of policy” as proof of a substantial public policy

for their Harless action. 235 W. Va. 165, 171 (2015). In

deciding that the act pronounced a substantial public policy,

the court looked beyond the general provision cited by the

petitioners and noted that other provisions in the act made

unlawful the respondent’s underlying conduct and subjected

violators to both civil and criminal penalties. Id. at 173.

Similarly, in Birthisel, where the plaintiff failed to identify

a substantial public policy, the court considered not only the

“extremely general” “statute and regulations relied upon by the

plaintiff,” but also found that “the disciplinary grounds

contained in the social workers’ licensing statute” were not

targeted at the underlying conduct. 188 W. Va. at 379. Thus, a

relatively broad expression of public policy may still be

sufficiently substantial to maintain a Harless action where the

expression is part of a larger and more specific apparatus.

In the present action, the court is cognizant that the

WVDHHR regulations cited by the parties do not exist in a

vacuum. Title 64, series 11 of the West Virginia Code of State

Rules contains an abundance of regulations governing behavioral

health centers. Pertinently, it describes licensure, consumer

rights, and a complaint-filing process whereby employees can

report to the WVDHHR violations of the regulations by a

behavioral health center. See W. Va. Code R. §§ 64-11-4.1, 4.4,

8.1, 8.2 It also includes enforcement provisions through which

the WVDHHR can inspect and sanction behavioral health centers

that violate the law and place consumers at risk. See id. §§

64-11-4.3, 4.6, 10.1.c. Importantly, the WVDHHR can impose

“plans of correction” mandating specific operational changes in

response to practices that it deems as violative of the

regulations. See id. § 64-11-4.6.

Turning again to Frohnapfel, the Supreme Court of

Appeals observed the following:

[T]he case before us does not involve an employer

being forced to operate oblivious to the compliance

requirements of its permit. As the district court

recognized, permits issued under the Act's authority

contain the necessary specificity regarding the

permissible levels of various chemical waste

effluents. Moreover, it stands to reason that a

regulatory area which involves compliance with federal

clean water standards is necessarily so complex that

the exactitudes of the governing regulations will not

typically be delineated in the governing legislation.

235 W. Va. at 172 (footnotes omitted) (citing State ex rel. Ball

v. Cummings, 208 W. Va. 393, 397 (1999)).

Mr. Lynch alleges that REM was subject to a plan of

correction issued by the WVDHHR. (Compl. ¶ 10.) Perhaps

through some combination of that plan along with other

regulatory provisions, REM, like the employer in Frohnapfel, was

provided “the necessary specificity regarding” adequate levels

of staffing. However, the court cannot reasonably infer from

the allegations of the complaint that any such specificity

existed. Consequently, for that reason and reasons earlier

stated, the court cannot find that Mr. Lynch has identified a

substantial public policy, and his Harless retaliatory discharge

action fails. Mr. Lynch’s complaint must be dismissed, but

without prejudice to the prompt filing of an amended complaint

that sufficiently identifies a substantial public policy. In so

holding, the court is mindful that the Fourth Circuit commands

that it must be especially cautious in finding the existence of

a substantial public policy in West Virginia law where the

Supreme Court of Appeals of West Virginia has not yet opined.

See Washington, 870 F.2d at 962-63; see also Tritle v. Crown

Airways, Inc., 928 F.2d 81, 84-85 (4th Cir. 1990) (per curiam);

cf. Swears v. R.M. Roach & Sons, Inc., 225 W. Va. 699, 704

(2010) (quoting Tiernan v. Charleston Area Med. Ctr., Inc., 203

W. Va. 135, 141 (1998)) (“[C]ourts are to ‘proceed cautiously if

called upon to declare public policy absent some prior

legislative or judicial expression on the subject.’”); Yoho, 175

W. Va. at 561 (“The power to declare an action against public

policy is a broad power and one difficult to define. . . .

[D]espite the broad power vested in the courts to determine

public policy, we must exercise restraint when we use it.”).

On a final note, as an alternative to dismissal, REM

moves for a more definite statement under Federal Rule of Civil

Procedure 12(e). That rule states as follows, in pertinent

part:

A party may move for a more definite statement of a

pleading to which a responsive pleading is allowed but

which is so vague or ambiguous that the party cannot

reasonably prepare a response.

The Fourth Circuit instructs its courts to read Rule 12(e) in

conjunction with Federal Rule of Civil Procedure 8(a), Hodgson

v. Va. Baptist Hosp., Inc., 482 F.2d 821, 822 (4th Cir. 1973),

which requires that a complaint include

(1) a short and plain statement of the grounds for the

court's jurisdiction, unless the court already has

jurisdiction and the claim needs no new jurisdictional

support; (2) a short and plain statement of the claim

showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include

relief in the alternative or different types of

relief.

Fed. R. Civ. P. 8(a).

While REM’s request for a more definite statement is

mooted by the court’s dismissal of this action, the court notes

that Mr. Lynch has largely fulfilled his burden under Rule 8(a):

the court possesses diversity jurisdiction; Mr. Lynch states

that he complained to REM about its various practices and that

he was fired in retaliation but has failed to identify a

substantial public policy; and he makes a plain demand for

relief for, inter alia, damages and reinstatement. (See

generally Compl.) Inasmuch as the court orders dismissal

without prejudice, REM’s motion for a more definite statement is

denied.

IV. Conclusion

For the reasons stated above, the court ORDERS that

REM’s motion to dismiss for failing to state a claim upon which

relief can be granted be, and hereby is, granted without

prejudice to the filing within twenty days of an amended

complaint that aptly identifies a substantial policy. The court

further ORDERS that REM’s motion for a more definite statement

be, and hereby is, denied. In the absence of the timely filing

of an amended complaint as directed herein, this action will be

dismissed.

The Clerk is directed to forward copies of this order

to all counsel of record and to any unrepresented parties.

ENTER: March 1, 2018

LO ph TD =p —D

John T. Copenhaver, Jr.

United States District Judge

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