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Hales v. Newport News — pleading opinion, Doc. 17

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5 punitive damages against all Defendants, jointly an d severally, with interest, and demands a trial by jury. The City Defendants, with the consent of Gayle and Briggs, removed the matter to this Court on February 2, 201 1, invoking this Court‘s subject -matter jurisdiction over Plaintiff‘s constitutional and civil-rights claims pursuant to 28 U.S.C. § 1441.3 The City Defendants filed their motion to dismiss on that same day, and Sergeant Gayle filed his motion to di smiss on February 3, 2011. Officer Briggs filed his motion to dismiss, along with an answer, on February 21, 2011. 4 Plaintiff filed responses in opposition to the dismissal motions, a nd all such motions are now ripe for review. III. STANDARD OF REVIEW A. Rule 12(b)(6) Rule 12(b)(6) permits a defendant to move for dismi ssal if the plaintiff has failed to state a claim upon whic h relief can be granted. Fed. R. Civ. P. 12(b)(6). In assessin g such a motion, a district court must ―assume the truth of all facts 3 The City Defendants‘ notice of removal alleges that ―[u]pon information and belief, Officer Darryl J. Johnson h as not been served and the return of service came back ‗Not Fou nd.‘‖ (Removal Notice ¶ 1, Dkt. No. 1). Officer Johnson has made no appearance in this matter since its removal. 4 Since Officer Briggs filed an answer contemporaneously with his motion, the motion is properly regarded not as a mo tion to dismiss pursuant to Rule 12(b)(6), but instead as a motion for judgment on the pleadings pursuant to Rule 12(c). See Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009).
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