Archived Story

Attorney opposes motion to dismiss

Published 11:10pm Wednesday, January 30, 2013

The attorney for Jimmy Davis, a former Washington fire chief who is suing the City of Washington and others over his termination, said the lawsuit should move forward despite a motion by the defendants to dismiss the lawsuit.
The lawsuit, filed last year, contains 14 claims against the defendants, which also include Mayor Archie Jennings, former City Manager Jim Smith and City Attorney Franz Holscher.
The defendants want the lawsuit dismissed. The motion asks that all 14 complaints in Davis’ lawsuit be dismissed under Rule 12b6 of North Carolina’s civil procedures. Basically, that rule means that even if it’s assumed all allegations are true, the claim should be dismissed because the complaint itself cannot be maintained or fails to properly allege a claim.
“We’re basically saying, ‘Look, Your Honor, if you read through this complaint and look at everything he’s complaining about. There’s nothing here,’” The defendants’ attorney Ann Smith said Tuesday.
Brian Jones, the attorney representing Davis, contends Davis’ lawsuit has merit.
“The City says ‘if you read through the complaint and look at everything he’s complaining about. There’s nothing there.’ We disagree. We’re saying that Davis was fired for reasons which are sufficiently set out in detail. Firing an employee for those reasons violates the public policy of North Carolina, and the complaint sets out in detail the public policies and laws which have been violated. We believe the allegations are sufficient to state claims for relief that may be granted under the legal theories set forth in the complaint,” Jones wrote in an email.
The lawsuit contends Davis’ termination from his position as fire chief is illegal.
The complaint alleges several instances “in which the city attempted to undermine the plaintiff.” The complaint includes Davis’ allegations against the defendants for violating city personnel policies and ordinances. The complaint also contends the defendants accused Davis of violating city policies and ordinances.
The complaint is rife with claims and counter-claims between Davis and the defendants. Davis contends the defendants conspired to deprive him of his employment with the city, deprive him of a meaningful grievance hearing and make false allegations against him.
As part of a hearing Monday, Superior Court Judge Rusty Duke took the motion to dismiss under advisement. The city’s attorney also filed a motion to strike a specific part of Davis’ lawsuit, with that motion contending it did not belong in the lawsuit.
A hearing on the motion to strike has been tentatively set for 11 a.m. today.

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