Timberline Mountain Operations, LLC v. The County Commission of Tucker County

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMBERLINE MOUNTAIN OPERATIONS, LLC,
TIMBERLINE PROPERTY MANAGEMENT, LLC, and
VALLEY SCENIC VIEW, LLC,
Plaintiffs,
v. 	CIVIL NO. 2:25-CV-19
(KLEEH)
THE COUNTY COMMISSION OF
TUCKER COUNTY,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO DISMISS [ECF NO. 5]
Pending before the Court is a motion to dismiss filed by the
Defendant, 	the 	County 	Commission 	of 	Tucker 	County, 	West 	Virginia
(“TCC”). 	For the reasons discussed below, the motion is DENIED.
I. 	INTRODUCTION AND PROCEDURAL HISTORY
The 	Plaintiffs, 	Timberline 	Mountain 	Operations, 	LLC,
Timberline 	Property 	Management, 	LLC, 	and 	Valley 	Scenic 	View, 	LLC
(together, 	“Plaintiffs”), 	filed 	their 	original 	complaint 	for
declaratory judgment against TCC on August 13, 2025. 	See ECF No.
1. 	They 	filed 	an 	amended 	complaint 	on 	August 	14, 	2025. 	See 	ECF
No. 	3. 	In 	the 	amended 	complaint, 	Plaintiffs 	ask 	the 	Court 	to
invalidate all or part of Tucker County’s emergency ambulance fee
ordinance (the “Ordinance”).
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In 	the 	amended 	complaint, 	Plaintiffs 	assert 	the 	following
claims:
(1) 	In Count One, that TCC’s additional
2% hotel/lodging ad valorem tax exceeds the
6% maximum under state code; 1
(2) 	In 	Count 	Two, 	that 	the 	Ordinance
violates 	the 	Commerce 	Clause 	of 	the 	United
States Constitution; and
(3) 	In 	Count 	Three, 	that 	the 	Ordinance
does 	not 	comply 	with 	the 	Emergency
Ambulance Act.
On September 16, 2025, TCC filed a motion to dismiss. 	See ECF No.
5. 	It 	is 	fully 	briefed 	and 	ripe 	for 	review. 	The 	Court 	held 	a
hearing on the motion on January 7, 2026.
II. 	STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does 	not 	“state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.” 	In
ruling 	on 	a 	12(b)(6) 	motion 	to 	dismiss, 	a 	court 	“must 	accept 	as
true 	all 	of 	the 	factual 	allegations 	contained 	in 	the 	complaint.”
Anderson 	v. 	Sara 	Lee 	Corp., 	508 	F.3d 	181, 	188 	(4th 	Cir. 	2007)
(citations 	omitted). 	A 	court 	is 	“not 	bound 	to 	accept 	as 	true 	a
legal 	conclusion 	couched 	as 	a 	factual 	allegation.” 	Papasan 	v.
Allain, 478 U.S. 265, 286 (1986) (citation omitted).
1 	Plaintiffs 	assert 	that 	Tucker 	County 	has 	already 	imposed 	the 	maximum 	6%
occupancy tax on hotels. 	See Am. Compl., ECF No. 3, at 3.
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A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“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).
Factual allegations must be sufficient “to raise a right to relief
above 	the 	speculative 	level 	on 	the 	assumption 	that 	all 	of 	the
complaint’s 	allegations 	are 	true.” 	Id. 	at 	545. 	Plausibility
exists “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). 	A motion to dismiss “does not resolve
contests 	surrounding 	the 	facts, 	the 	merits 	of 	a 	claim, 	or 	the
applicability 	of 	defenses.” 	Republican 	Party 	of 	N.C. 	v. 	Martin,
980 	F.2d 	943, 	952 	(4th 	Cir. 	1992) 	(citation 	omitted). 	Dismissal
is 	appropriate 	only 	if 	“it 	appears 	to 	a 	certainty 	that 	the
plaintiff would be entitled to no relief under any state of facts
which 	could 	be 	proved 	in 	support 	of 	its 	claim.” 	Johnson 	v.
Mueller, 415 F.2d 354, 355 (4th Cir. 1969) (citation omitted).
III. BACKGROUND
Emergency Ambulance Service Act of 1975
In 	West 	Virginia, 	“[c]ounty 	commissions 	have 	no 	inherent
authority 	to 	levy 	taxes 	and 	have 	only 	that 	authority 	expressly
granted to them by the Legislature.” 	W. Va. Code § 7-22-9(a). 	In
1975, 	the 	West 	Virginia 	Legislature 	(the 	“Legislature”) 	enacted
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the Emergency Ambulance Service Act of 1975, which empowered county
commissions to “impose upon and collect from the users of emergency
ambulance 	service 	within 	the 	county 	a 	special 	service 	fee, 	which
shall be known as the ‘special emergency ambulance service fee.’”
Id. § 7-15-17.
West Virginia Hotel Occupancy Tax
In 	1985, 	the 	Legislature 	empowered 	counties 	and
municipalities 	to 	“impose 	and 	collect 	a 	privilege 	tax 	upon 	the
occupancy 	of 	hotel 	rooms 	located 	within 	[their] 	taxing
jurisdiction[s].” 	Id. § 7-18-1(a). 2 	Since 2007, the maximum rate
for a hotel tax by a county has been 6%. 	See id. § 7-18-2(b).
The 2024 Tucker County Ambulance Fee Ordinance
The 	Ordinance 	became 	effective 	on 	January 	31, 	2025. 	See
Ordinance, 	ECF 	No. 	3-1, 	at 	8. 	Article 	Two 	of 	the 	Ordinance
establishes the Special Emergency Ambulance Service Fee:
Each 	Special 	Emergency 	Ambulance 	Service 	Fee
imposed 	under 	this 	Ordinance 	shall 	be 	for
Tucker County emergency ambulance services for
a fiscal year beginning July 1st through June
30th.
The 	Special 	Emergency 	Ambulance 	Service 	Fee
shall 	be 	two 	percent 	(2%), 	imposed 	on 	all
2 	“Hotel” 	is 	defined 	as 	“any 	facility, 	building, 	or 	buildings, 	publicly 	or
privately owned (including a facility located in a state, county, or municipal
park), 	in 	which 	the 	public 	may, 	for 	a 	consideration, 	obtain 	sleeping
accommodations. 	The term includes, but is not limited to, boarding houses,
hotels, motels, inns, courts, condominiums, lodges, cabins, and tourist homes.
The term ‘hotel’ includes state, county, and city parks offering accommodations
as herein set forth.” 	W. Va. Code § 7-18-3(c).
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sales, 	short-term 	rentals, 	admissions, 	fees
and covers as described [in Article One] paid
by any individual user to be collected by all
individuals or businesses within Tucker County
as 	specified 	in 	the 	determination 	of 	Special
Emergency 	Ambulance 	Service 	Fee, 	less
exemptions.
Id. 	at 	5. 	In 	Article 	One, 	the 	Ordinance 	defines 	the 	“Special
Emergency Ambulance Fee” as follows:
A two percent (2%) fee to be collected by any
business 	or 	individual 	located 	within 	Tucker
County 	from 	any 	individual 	user 	that 	engages
in 	any 	one 	or 	more 	of 	the 	following 	types 	of
amusement, 	entertainment 	and/or 	recreational
activities 	as 	previously 	defined. 	The
activities 	include, 	but 	are 	not 	limited 	to,
the following:
1. 	All 	recreational 	and 	amusement
activities 	including 	the 	rental 	of
equipment in use of said activities,
whether indoor or outdoor such as:
 	Short-term 	rentals 	such 	as:
hotel/motel, 	cabin,
condominium, 	AirBnb, 	VRBO 	or
private rentals;
 	RV or tent camping;
 	Boat, 	paddle 	boat, 	kayak,
canoe, floating tube rental;
 	ATV, 	UTV, 	motorcycle, 	bicycle
rental;
 	Bus excursions, charters;
 	Downhill 	ski
equipment/clothing rental, ski
lift fees;
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 	Cross-country 	ski
equipment/clothing 	rental,
fees;
 	Sledding, tubing, ice skating;
 	Snowboarding 	fees, 	lift
tickets, 	equipment/clothing
rental;
 	Scenic chair lift rides;
 	Swimming, 	tennis, 	pickleball,
court and equipment rentals;
 	Guided 	hunting 	or 	fishing
excursions 	and
clothing/equipment rental;
 	Zip 	line, 	rock 	climbing,
paddle 	boarding, 	horseback
riding, 	skeet 	shooting,
paintball 	and 	other 	similar
outdoor 	adventure 	activities
and 	clothing/equipment 	rental
for the same;
 	Virtual 	Reality 	and/or 	AI
gaming fees;
 	Putt-putt golf;
 	Golfing 	and 	golf 	cart 	rental
fees; and
2. 	Any 	and 	all 	admission 	charges 	or
cover 	fees 	including, 	but 	not
limited 	to, 	music 	events 	and/or
concerts, 	comics, 	movies, 	plays,
professional 	sports 	or 	gaming
events; 	mud 	bogs 	or
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motorcycle/ATV/4-wheel drive racing
or trail riding.
Id. at 3–4. 	In Article One, the Ordinance also lists the following
exemptions:
Registered 	non-profit 	organizations 	are
exempted 	from 	this 	Ordinance; 	more
specifically 	exempted 	are 	volunteer 	fire
departments, 	schools, 	churches, 	senior
centers, Tucker County Fair, Tucker County 4H,
and Tucker County Animal Shelter.
Id. at 5.
According to data from the Tucker County Ambulance Authority,
there were a total of 1,346 emergency ambulance unit responses in
2024. 	Am. 	Compl., 	ECF 	No. 	3, 	at 	6. 	During 	that 	period, 	the
largest 	hotels 	and 	recreational 	centers (Timberline 	Mountain,
Canaan Valley Lodge, and Blackwater Lodge) were responsible for a
combined total of 70 emergency ambulance unit responses. 	Id. at
6-7. 	On 	the 	other 	hand, 	a 	single 	senior 	center 	in 	Tucker 	County
accounted 	for 	at 	least 	213 	emergency 	ambulance 	unit 	responses.
Id. 	at 	7. 	Various 	medical 	facilities 	accounted 	for 	94 	ambulance
unit 	responses, 	and 	three 	other 	senior 	apartment 	complexes
collectively accounted for 75 ambulance unit responses. 	Id. 	There
were 17 ambulance unit responses to the Tucker County High School
football field, and nearly 24 private residences were responsible
for over 10 ambulance unit responses. 	Id.
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IV. 	DISCUSSION
In 	the 	motion 	to 	dismiss, 	TCC 	argues 	that 	Count 	Two, 	the
dormant 	Commerce 	Clause 	claim, 	is 	insufficiently 	pled 	under 	Rule
12(b)(6). 	TCC argues that the Court should dismiss Count Two and
choose 	not 	to 	exercise 	supplemental 	jurisdiction 	over 	the
remaining state law claims. 	For the reasons discussed below, the
Court 	finds 	that 	Count 	Two 	is 	sufficiently 	pled, 	and 	the 	Court
will exercise supplemental jurisdiction over the remaining claims.
A. 	Dormant Commerce Clause (Count Two)
TCC 	argues 	that 	the 	Ordinance 	does 	not 	violate 	the 	dormant
Commerce Clause because it applies solely to activities engaged in
by individuals within a single county in a single state. 	It also
argues 	that 	the 	Ordinance 	requires 	only 	local 	enterprises 	to
collect 	the 	emergency 	ambulance 	fee 	from 	their 	customers. 	In
response, 	Plaintiffs 	argue 	that 	the 	Ordinance 	is 	not 	exclusively
local, 	and 	even 	if 	it 	were, 	exclusively 	local 	or 	intrastate
activity can be subject to Commerce Clause scrutiny.
The 	Commerce 	Clause 	of 	the 	United 	States 	Constitution
provides that “[t]he Congress shall have Power . . . [t]o regulate
Commerce . . . among the several States[.]” 	U.S. Const., Art. I,
§ 	8, 	cl. 	3. 	“Though 	phrased 	as 	a 	grant 	of 	regulatory 	power 	to
Congress, the Clause has long been understood to have a ‘negative’
aspect 	that 	denies 	the 	States 	the 	power 	unjustifiably 	to
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discriminate against or burden the interstate flow of articles of
commerce.” 	Oregon 	Waste 	Sys., 	Inc. 	v. 	Dep’t 	of 	Env’t 	Quality 	of
State of Or., 511 U.S. 93, 98 (1994) (citations omitted).
“The 	dormant 	Commerce 	Clause 	restrains 	‘the 	several 	States’
by 	limiting 	‘the 	power 	of 	the 	States 	to 	erect 	barriers 	against
interstate 	trade.’” 	McBurney 	v. 	Young, 	667 	F.3d 	454, 	468 	(4th
Cir. 	2012) 	(citation 	omitted). 	It 	“is 	exclusively 	designed 	to
address 	the 	‘differential 	treatment 	of 	in-state 	and 	out-of-state
economic 	interests 	that 	benefits 	the 	former 	and 	burdens 	the
latter.’” 	Colon Health Ctrs. of Am., LLC v. Hazel, 813 F.3d 145,
154 	(4th 	Cir. 	2015) 	(citation 	omitted). 	“The 	[Supreme] 	Court
has . . . rejected 	any 	suggestion 	that 	a 	state 	tax 	or 	regulation
affecting 	interstate 	commerce 	is 	immune 	from 	Commerce 	Clause
scrutiny 	because 	it 	attaches 	only 	to 	a 	‘local’ 	or 	intrastate
activity.” 	Commonwealth Edison Co. v. Montana, 453 U.S. 609, 615
(1981) (citations omitted).
The 	“first 	step 	in 	analyzing 	any 	law 	subject 	to 	judicial
scrutiny under the negative Commerce Clause is to determine whether
it 	regulates 	evenhandedly 	with 	only 	incidental 	effects 	on
interstate 	commerce, 	or 	discriminates 	against 	interstate
commerce.” 	Oregon 	Waste, 	511 	U.S. 	at 	99 	(citations 	and 	internal
quotation 	marks 	omitted). 	“[D]iscrimination” 	in 	this 	context
“means 	differential 	treatment 	of 	in-state 	and 	out-of-state
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economic 	interests 	that 	benefits 	the 	former 	and 	burdens 	the
latter.” 	Id. 	“If a restriction on commerce is discriminatory, it
is 	virtually 	per 	se 	invalid.” 	Id. 	(citations 	omitted). 	“By
contrast, nondiscriminatory regulations that have only incidental
effects on interstate commerce are valid unless ‘the burden imposed
on such commerce is clearly excessive in relation to the putative
local 	benefits.’” 	Id. 	(citing 	Pike 	v. 	Bruce 	Church, 	Inc., 	397
U.S. 	137, 	142 	(1970)). 	“[A] 	state 	law 	is 	not 	discriminatory
because 	it 	will 	apply 	most 	often 	to 	out-of-state 	entities 	in 	a
market 	that 	has 	more 	out-of-state 	than 	in-state 	participants.”
Just Puppies, Inc. v. Brown, 123 F.4th 652, 667 n.9 (4th Cir. 2024)
(citations and internal quotation marks omitted).
“[O]ne 	of 	the 	central 	purposes 	of 	the 	[dormant 	Commerce]
Clause was to prevent States from ‘exacting more than a just share’
from 	interstate 	commerce.” 	Oregon 	Waste, 	511 	U.S. 	at 	102
(citations omitted). 	“It is well established . . . that a law is
discriminatory if it taxes a transaction or incident more heavily
when 	it 	crosses 	state 	lines 	than 	when 	it 	occurs 	entirely 	within
the State.” 	Id. (citations and internal punctuation omitted). 	A
State may not “impose a tax which discriminates against interstate
commerce either by providing a direct commercial advantage to local
business, . . . or by subjecting interstate commerce to the burden
of multiple taxation[.]” 	Northwestern States Portland Cement Co.
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v. 	Minnesota, 	358 	U.S. 	450, 	458 	(1959) 	(citations 	and 	internal
quotation marks omitted). 	“For over 150 years,” the Supreme Court
has “concluded that the imposition of a differential burden on any
part 	of 	the 	stream 	of 	commerce — from 	wholesaler 	to 	retailer 	to
consumer — is 	invalid[.]” 	Camps 	Newfound/Owatonna, 	Inc. 	v. 	Town
of Harrison, 520 U.S. 564, 580 (1997) (citation omitted).
In Camps Newfound, Maine enacted a statute creating a general
exemption 	from 	real 	estate 	and 	personal 	property 	taxes 	for
“benevolent 	and 	charitable 	institutions” 	incorporated 	in 	Maine.
Id. 	at 	568. 	The 	statute, 	however, 	provided 	that 	institutions
“conducted or operated principally for the benefit of persons who
are not residents of Maine” qualified only for a more limited tax
benefit. 	Id. 	The 	operator 	of 	a 	church 	camp 	serving 	primarily
out-of-state 	residents 	(95% 	out-of-state) 	challenged 	the
constitutionality of the statute. 	Id. at 568–69, 573. 	The statute
failed 	scrutiny 	under 	the 	Commerce 	Clause. 	Id. 	at 	580-81. 	The
Supreme 	Court 	recognized 	that 	the 	tax 	burden 	was 	“imposed 	on 	the
out-of-state 	customer 	indirectly 	by 	means 	of 	a 	tax 	on 	the 	entity
transacting 	business 	with 	the 	non-Maine 	customer.” 	Id. 	at 	580.
It 	wrote 	that 	the 	burden 	was 	“felt 	almost 	entirely 	by 	out-of-
staters, 	deterring 	them 	from 	enjoying 	the 	benefits 	of 	camping 	in
Maine.” 	Id. 	at 	581. 	The 	Court 	found 	that 	such 	prohibitions 	on
out-of-state 	access 	to 	in-state 	resources 	encourage 	economic
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isolationism 	and 	“serve 	the 	very 	evil 	that 	the 	dormant 	Commerce
Clause 	was 	designed 	to 	prevent.” 	Id. 	at 	578. 	It 	wrote, 	“As 	a
practical 	matter, 	the 	statute 	encourages 	affected 	entities 	to
limit their out-of-state clientele, and penalizes the principally
nonresident 	customers 	of 	businesses 	catering 	to 	a 	primarily
interstate 	market.” 	Id. 	at 	576. 	The 	Camps 	Newfound 	Court 	also
wrote,
Summer 	camps 	are 	comparable 	to 	hotels 	that
offer their guests goods and services that are
consumed locally. 	In Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 13 L. Ed.
2d 	258, 	85 	S. 	Ct. 	348 	(1964), 	we 	recognized
that 	interstate 	commerce 	is 	substantially
affected 	by 	the 	activities 	of 	a 	hotel 	that
“solicits patronage from outside the State of
Georgia 	through 	various 	national 	advertising
media, 	including 	magazines 	of 	national
circulation.” 	Id., at 243. 	In that case, we
held that commerce was substantially affected
by 	private 	race 	discrimination 	that 	limited
access 	to 	the 	hotel, 	and 	thereby 	impeded
interstate 	commerce 	in 	the 	form 	of 	travel.
Id., at 244, 258.
Id. at 573.
Here, 	Timberline 	has 	proffered 	that 	75% 	of 	those 	who 	engage
in 	recreational 	activities 	at 	Timberline 	are 	from 	out 	of 	state.
Am. 	Compl., 	ECF 	No. 	3, 	at 	¶ 	9. 	The 	Ordinance 	also 	explicitly
excludes 	a 	number 	of 	local 	organizations 	from 	its 	application.
See Ordinance, ECF No. 3-1, at 5. 	If, for example, Tucker County
4H wanted to host a recreational activity, which would presumably
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be 	primarily 	attended 	by 	Tucker 	County 	residents, 	the 	tax 	would
not 	apply. 	If 	Timberline, 	Canaan, 	or 	Blackwater 	Falls 	wanted 	to
host 	a 	recreational 	activity, 	which 	would 	presumably 	be 	attended
by 	out-of-state 	tourists, 	the 	tax 	would 	apply. 	Timberline 	has
pled 	that 	most 	of 	its 	customers 	“buy 	digital 	ski 	lift 	passes,
equipment 	rentals, 	and 	hotel 	reservations 	before 	traveling 	to
Tucker County.” 	Am. Compl., ECF No. 3, at ¶ 9.
This 	case, 	as 	pled, 	is 	similar 	to 	Camps 	Newfound, 	in 	which
Maine 	engaged 	in 	discriminatory 	taxation 	of 	Maine 	charities
operating 	primarily 	to 	serve 	out-of-state 	residents. 	The 	tax
burden is “imposed on the out-of-state customer indirectly by means
of 	a 	tax 	on 	the 	entity 	transacting 	business 	with 	the 	non-[West
Virginia] customer.” 	Camps Newfound, 520 U.S. at 580. 	The burden
is 	“felt 	almost 	entirely 	by 	out-of-staters, 	deterring 	them 	from
enjoying 	the 	benefits 	of” 	recreating 	in 	Tucker 	County, 	West
Virginia. 	Id. at 581. 	This amounts to a discouragement of “out-
of-state 	access 	to 	in-state 	resources” 	and 	the 	same 	type 	of
economic 	isolationism 	that 	was 	found 	invalid 	in 	Camps 	Newfound.
Id. 	at 	578. 	As 	pled, 	to 	quote 	from 	Plaintiffs’ 	brief, 	the
Ordinance 	“confer[s] 	the 	benefits 	of 	an 	emergency 	ambulance
service 	upon 	residents 	and 	visitors 	alike, 	but 	plac[es]
the . . . burden of an emergency ambulance service user fee almost
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MEMORANDUM OPINION AND ORDER
DENYING MOTION TO DISMISS [ECF NO. 5]
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entirely 	upon 	the 	visitors 	by 	selectively 	taxing 	the 	very
activities that draw them to visit.” 	Resp., ECF No. 8, at 10.
TCC 	asserts 	that 	this 	case 	is 	similar 	to 	American 	Trucking
Associations, 	Inc. 	v. 	Michigan 	Public 	Service 	Commission 	et 	al.
because 	the 	tax 	applies 	evenhandedly. 	The 	Court 	disagrees. 	In
American 	Trucking, 	the 	State 	of 	Michigan 	imposed 	a 	flat 	fee 	upon
trucks 	undertaking 	point-to-point 	hauls 	between 	Michigan 	cities.
545 U.S. 429, 431 (2005). 	The petitioners argued that the statute
discriminated 	against 	interstate 	carriers 	and 	imposed 	an
unconstitutional 	burden 	upon 	interstate 	trade. 	Id. 	at 	432. 	The
Supreme 	Court 	wrote 	found 	that 	the 	“neutral” 	flat 	assessment 	did
not 	unfairly 	discriminate 	against 	interstate 	truckers. 	Id. 	at
434–35. 	The Ordinance at issue here is distinctly different. 	The
Ordinance’s 	definition 	of 	“users” 	is 	not 	neutral 	and 	is 	not
connected 	to 	a 	population 	who 	actually 	uses 	ambulance 	services.
The 	Ordinance, 	rather, 	focus 	on 	tourism-based 	activities 	and 	the
exempts activities presumably attended by Tucker County residents.
The Ordinance excludes senior centers from its application, which
is 	evidence 	of 	discrimination, 	given 	the 	amount 	of 	ambulance
services 	used 	by 	their 	residents. 	Moreover, 	to 	the 	extent 	TCC
argues that the taxed activities are all recreational, hotels are
unrelated 	to 	recreation, 	and 	their 	inclusion 	in 	the 	tax 	is, 	at
least arguably, evidence of discrimination as well. 	In short, the
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Ordinance 	defines 	“users” 	of 	ambulance 	services 	in 	a 	way 	that
disproportionately 	imposes 	the 	tax 	on 	out-of-state 	individuals.
The 	factual 	allegations 	here 	have 	raised 	Plaintiffs’ 	right 	to
relief above the speculative level. 	See Twombly, 550 U.S. at 545.
For these reasons, the Court finds that Count Two is sufficiently
pled.
B. 	Supplemental Jurisdiction
Where 	“the 	district 	courts 	have 	original 	jurisdiction, 	the
district 	courts 	shall 	have 	supplemental 	jurisdiction 	over 	all
other 	claims 	that 	are 	so 	related 	to 	claims 	in 	the 	action 	within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
28 	U.S.C. 	§ 	1367(a). 	Because 	the 	Court 	has 	denied 	the 	motion 	to
dismiss 	Count 	Two, 	the 	motion 	is 	also 	denied 	with 	respect 	to 	the
remaining claims.
V. 	CONCLUSION
For 	the 	reasons 	discussed 	above, 	the 	motion 	to 	dismiss 	is
DENIED 	[ECF 	No. 	5]. 	The 	motion 	to 	stay 	discovery 	is 	DENIED 	AS
MOOT [ECF No. 21].
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
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DENYING MOTION TO DISMISS [ECF NO. 5]
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DATED: March 17, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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