# Lynch v. REM Community Options, LLC

> District Court, S.D. West Virginia · March 1, 2018

URL: https://www.frixlaw.com/law-library/cases/10727286

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 1, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10727286. Public record. Not legal advice.