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No. 18-0653 – Newton v. Morgantown Machine & Hydraulics of WV, Inc..

HUTCHISON, Justice, dissenting, joined by WORKMAN, Justice:

“The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of 

Civil Procedure is to test the formal sufficiency of the complaint.” John W. Lodge Distrib.

Co., Inc. v. Texaco, Inc, 161 W.Va. 603, 604-05, 245 S.E.2d 157, 158 (1978). In 

considering a 12(b)(6) motion, it is well-established that the complaint is to be construed 

in the light most favorable to the plaintiff and the allegations are to be taken as true. Id. at 

605, 245 S.E.2d at 158. “[I]f the complaint states a claim upon which relief can be granted 

under any legal theory, a motion under Rule 12(b)(6) must be denied.” Id. at 605, 245 

S.E.2d at 159. While the majority pays lip service to these basic precepts in its decision, it 

proceeds to ignore all of them and conclude that the circuit court properly dismissed the 

petitioner’s complaint. Had the majority actually taken the time to read the complaint, it 

would have determined, as I did, that the petitioner satisfied his burden of stating a claim 

upon which relief could be granted. Because the majority turned a blind eye to our law, as 

well as the allegations set forth in the petitioner’s complaint, I dissent. 

“Complaints are to be read liberally as required by the notice pleading theory 

underlying the West Virginia Rules of Civil Procedure.” State ex rel. McGraw v. Scott 

Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995). As this 

Court has explained, Rule 8 of the West Virginia Rules of Civil Procedure, which sets forth 

FILED

November 19, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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the general rules for pleading, “requires clarity but not detail.” Id. Indeed, 

“Rule 8(a)(2) requires a ‘short and plain statement of the claim showing that the pleader is 

entitled to relief[.]’” Id. Therefore, “the plaintiff’s burden in resisting a motion to dismiss 

is a relatively light one.” John W. Lodge Distrib., 161 W.Va. at 606, 245 S.E.2d at 159. 

In order to defeat a 12(b)(6) motion, “[a]ll that the pleader is required to do is to set forth 

sufficient information to outline the elements of his claim or to permit inferences to be 

drawn that these elements exist.” Id. at 605, 245 S.E.2d at 159.

Here, the petitioner filed suit pursuant to Harless v. First Nat’l Bank, 162 

W.Va. 116, 246 S.E.2d 270 (1978), claiming that he was wrongfully discharged from his 

employment because he exercised his right of self-defense when his was physically 

attacked by a co-worker. Under Harless, an employer “may be liable to an employee for 

damages occasioned by th[e] discharge” if the motivation for the discharge “contravene[s]

some substantial public policy principal.” Id. at 116, 246 S.E.2d at 271, syl. pt. 1. In 

Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001), this Court recognized 

that in certain circumstances, the right of self-defense constitutes a substantial public policy 

exception to the at-will employment doctrine as allowed by Harless. 

A review of the petitioner’s complaint shows that he set forth sufficient 

information to outline the elements of a Harless claim. Under the clearly delineated section 

of his complaint titled “Cause of Action: Wrongful Discharge Under Harless,” the 

petitioner alleged: 
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25. This cause of action is asserted against both 

Defendants under West Virginia’s common law claim for 

wrongful discharge under Harless v. First National Bank of 

Fairmont, 162 W.Va. 116, 246 S.E.2d 270, 275 (1978). 

26. Mr. Newton was physically attacked and assaulted 

on March 15, 2016 by another employee, the truck driver.

27. The attack by the truck driver created a dangerous 

situation where Mr. Newton reasonably feared serious bodily 

injury or even death.

28. The truck driver was the aggressor and sole cause 

of the physical contact between the truck driver and Mr. 

Newton.

29. Mr. Newton used only absolutely necessary force 

to defend himself. 

30. Mr. Newton did not harm the truck driver who 

attacked Mr. Newton. 

31. Morgantown Machine understood that the truck 

driver was the sole aggressor, and that Mr. Newton was acting 

only in self defense. 

32. The right of self-defense is a substantial West 

Virginia public policy, and the right of self-defense in based on 

statues and the common law of West Virginia. 

33. The substantial West Virginia public policy is 

clearly intended to protect the public welfare and the public 

good by attempting to ensure that persons facing the risk of 

bodily injury and harm may apply necessary force to defend 

themselves. 

34. Defendants violated, thwarted, and jeopardized this 

substantial West Virginia public policy by suspending and 

firing Mr. Newton over the use of self-defense. Such conduct 

in disciplining and terminating employees under these 

circumstances would threaten and intimidate employees away 

from using self-defense, thereby unnecessarily subjecting 
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employees and the public to the threat of violence in the 

workplace. 

35. Mr. Newton was fired on March 16, 2015, because 

he used self-defense in preventing further harm to Mr. Newton 

from the truck driver. 

36. Defendants fully understood that Mr. Newton had 

applied only necessary force in self-defense. 

These allegations clearly satisfy the notice pleading standard of Rule 8.

It is obvious that the majority went beyond the four corners of the complaint,

considered the merits of the petitioner’s claim, and determined that he could not possibly 

prevail. Indeed, the majority opinion expressly upholds the circuit court’s finding that “the 

right of self-defense exception to the at-will employment doctrine does not apply [because] 

Plaintiff was engaged in an altercation with a coworker that did not involve weapons, 

dangerous circumstances, or a threat of lethal imminent danger.” Slip op. at 9-10. 

However, whether or not the altercation between the petitioner and coworker involved “an 

actual threat of lethal imminent danger” is a question of fact, not the issue to be decided at 

this stage of the litigation. In other words, it “is a matter properly determined on the basis 

of proof and not merely on the pleadings.” John W. Lodge Distrib., 161 W.Va. at 605-06, 

245 S.E.2d at 159. Moreover, the petitioner’s allegation that he “feared . . . even death” 

must be taken as true for purposes of a motion to dismiss under Rule 12(b)(6). 

I am dismayed that the majority has chosen to adjudicate the merits of the 

petitioner’s claim rather than afford him his day in court. Our jurisprudence favors the 
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determination of actions on their merits. To that end, this Court has previously declared 

that “the motion to dismiss for failure to state a claim should be viewed with disfavor and 

rarely granted.” Id. at 606, 245 S.E.2d at 159. Moreover, this Court has made clear that

“[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, 

should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove 

no set of facts in support of his claim which would entitle him to relief.” Syl. Pt. 3, 

Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977), quoting 

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Murphy 

v. Smallridge, 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996) (stating dismissal under Rule 

12(b)(6) only proper where “it is clear that no relief could be granted under any set of facts 

that could be proved consistent with the allegations” (additional citation omitted)). That is 

simply not the case here. The petitioner set forth sufficient allegations in his complaint 

and, therefore, should have been permitted to pursue his claim for relief. 

Accordingly, for the reasons set forth above, I dissent to the majority’s 

decision in this case. I am authorized to state that Justice Workman joins in this dissent.