Supinger v. Commonwealth Of Virginia et al
Filing
53
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on December 1, 2015. (sfc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
ROBERT E. LEE SUPINGER, JR.,
CASE NO. 6:15-cv-00017
Plaintiff,
v.
MEMORANDUM OPINION
COMMONWEALTH OF VIRGINIA, ET AL.,
Defendants.
JUDGE NORMAN K. MOON
This matter is before the Court upon Plaintiff’s motion to remand to state court. For the
following reasons, Plaintiff’s motion will be denied.
I.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed this lawsuit in the Circuit Court for the City of Lynchburg. Defendants,
pursuant to 28 U.S.C. § 1441, removed the action to this Court. Plaintiff now seeks to have the
entire case remanded to state court.
Plaintiff’s lawsuit contains thirteen causes of action against multiple defendants.1 Eight
arise under the United States Constitution or federal statute: two claims of discrimination under
Title VII of the Civil Rights Act of 1964 (“Title VII”); one claim of retaliation under Title VII; a
claim of First Amendment retaliation; a claim of deprivation of constitutional Due Process; a
claim of supervisory liability for constitutional violations under 42 U.S.C. § 1983; a claim of
racial discrimination under 42 U.S.C. §§ 1981 and 1983; and a claim under the Driver’s Privacy
Protection Act, 18 U.S.C. § 2721 et seq. Five claims arise under Virginia state law: a claim under
the Government Data Collection and Dissemination Practices Act, Va. Code § 2.2-3800 et seq.; a
1
Plaintiff asserts various claims against the Commonwealth of Virginia; the Virginia Department of Motor
Vehicles; and against Richard Holcomb, Joseph Hill, Donald Boswell, Jeannie Thorpe, William Anderson, and Tom
Penny, both in their individual and official capacities.
claim under the Fraud and Abuse Whistle Blower Protection Act, Va. Code § 2.2-3009; a claim
under Va. Code § 40.1-51.2:1; a claim under Va. Code §§ 18.2-152.4–152.5; and a claim of
tortious interference with employment.2
On November 5, 2015, the Court ordered the parties to submit supplemental briefing
answering whether, inter alia, the Defendants intended to waive Eleventh Amendment
immunity. See Docket No. 45.
II.
STANDARD OF REVIEW
Any civil action brought in state court may be removed by a defendant to federal district
court if the federal district court had original jurisdiction over the matter. 28 U.S.C. § 1441(a). 28
U.S.C. § 1367(a), which allows district courts to exercise supplemental jurisdiction over
accompanying state law claims “that are so related . . . that they form part of the same case or
controversy” “applies with equal force to cases removed to federal court as initially filed
there . . . .” See City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 165 (1997). District
courts may therefore exercise supplemental jurisdiction over state law claims if it has original
jurisdiction over related claims.
The exercise of supplemental jurisdiction is, however, discretionary, and federal district
courts may decline to exercise supplemental jurisdiction over state law claims if, inter alia, “the
claim raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c)(1). “Whether a
particular legal issue is ‘novel or complex’ is a fact-intensive inquiry . . . [I]ssues that have not
been addressed by any state court (is a case of first impression), or are currently before a state
2
Plaintiff initially asserted a claim under Va. Code § 2.2-2902.1 but has subsequently withdrawn that claim in its
entirety. See Docket No. 35, at 42; see also Docket No. 47, at 5 n.3. Plaintiff has also withdrawn his First
Amendment retaliation claim, his deprivation of Due Process Claim, and his claim under Virginia’s Fraud and
Abuse Whistle Blower Protection Act as to the Commonwealth of Virginia and the DMV. Plaintiff continues to
assert those three claims against other Defendants.
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appellate court are appropriately remanded.” Winingear v. City of Norfolk, C.A. No. 2:12cv560,
2013 WL 5672668, at *1 (E.D. Va. Oct. 16, 2013).
Where a claim that gives rise to federal question jurisdiction3 is joined with “a claim not
within the original or supplemental jurisdiction of the district court or a claim that has been made
nonremovable by statute[,]” 28 U.S.C. § 1441(c)(1)(B), “the district court shall sever from the
action all claims [over which the court lacks jurisdiction] and shall remand the severed claims to
the State court from which the action was removed.” 28 U.S.C. § 1441(c)(2). Similarly, if a
district court declines to exercise supplemental jurisdiction over state law claims pursuant to 28
U.S.C. § 1367(c), it may remand those state law claims to state court. See, e.g., Shah v. Hyatt
Corp., No. 10–1492, 2011 WL 1570598, at *4 (3d Cir. April 27, 2011) (finding no error where
district court remanded state law claims over which it declined to exercise supplemental
jurisdiction under 28 U.S.C. § 1367(c)); see also Borough of West Mifflin v. Lancaster, 45 F.3d
780, 788 (3d Cir. 1995) (“[I]n a case that has been removed from a state court, a remand to that
court is a viable alternative to a dismissal without prejudice [under § 1367(c)].”).
Where, as here, a plaintiff seeks to remand a removed case to state court, defendants have
“the burden of demonstrating the existence of federal jurisdiction.” Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008); see also Mulcahey v. Columbia Organic
Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
III.
DISCUSSION
A. The Eleventh Amendment Does Not Require a Remand to State Court
Plaintiff argues that this Court is barred by the Eleventh Amendment from hearing some
of Plaintiff’s claims. According to Plaintiff, because the Eleventh Amendment serves as a
3
Federal question jurisdiction exists under 28 U.S.C. § 1331 if a plaintiff’s claims are ones “arising under the
Constitution, laws, or treaties of the United States. “28 U.S.C. § 1331.
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jurisdictional bar, this Court should remand those immunity-barred claims to state court under
either 28 U.S.C. §§ 1441 or 1447.4
The Eleventh Amendment provides that “[t]he judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another state . . . .” In particular, the Amendment provides that
“an unconsenting state is immune from suit filed in federal court by a citizen of another state.”
Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir. 2005).
Defendants correctly emphasize that “[t]he Eleventh Amendment . . . does not
automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a
legal power to assert a sovereign immunity defense should it choose to do so. The State can
waive the defense.” Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (emphasis added).
Here, Defendants make clear that they have chosen not to invoke and instead waive any
Eleventh Amendment sovereign immunity defense with regard to Plaintiff’s state-law claims.
See Docket No.48, at 4 (“Defendants cannot and do not raise Eleventh Amendment immunity for
Plaintiff’s state-law claims . . . .”); see also Docket No. 50, at 3–4 (emphasizing that Defendants
decline to invoke any Eleventh Amendment sovereign immunity defense). With regard to
Plaintiff’s federal claims, Congress has abrogated Eleventh Amendment immunity for Title VII
claims, see Fitzpatrick v. Bitzer, 427 U.S. 445, 456–57 (1976), and the Eleventh Amendment
does not extend to constitutional claims against state officials sued in their individual capacities
under 42 U.S.C. § 1983. See Hafer v. Melo, 502 U.S. 21, 31 (1991).5
4
There is some Fourth Circuit precedent to support Plaintiff’s position. In Roach v. West Virginia Reg’l Jail Corr.
Facility Auth., 74 F.3d 46 (4th Cir. 1996), the Fourth Circuit held that, where the Eleventh Amendment prevented a
district court from exercising jurisdiction over plaintiff’s removed claims, the district court was required to remand
those claims to state court pursuant to 18 U.S.C. 1447(c). Id. at 49. Thus, if the Eleventh Amendment bars this Court
from exercising jurisdiction over Plaintiff’s claims, a remand to state court may be appropriate under Roach.
5
Defendants Holcomb and Hill do not invoke and instead waive Eleventh Amendment immunity with regard to
Plaintiff’s Driver’s Privacy Protection Act, 18 U.S.C. § 2721.
-4-
If Defendant invoked Eleventh Amendment immunity, then a remand of those immunitybarred claims may have been appropriate under Roach. Defendant has, however, either waived
Eleventh Amendment immunity, or such immunity does not attach, to all of Plaintiff’s claims.
The Court therefore retains jurisdiction as far as the Eleventh Amendment is concerned, and a
remand to state court on those grounds is not warranted.
B. The Exercise of Supplemental Jurisdiction over Plaintiff’s Related State Law
Claims is Appropriate
Plaintiff argues that this Court should, pursuant to 28 U.S.C. § 1367(c)(1), decline
supplemental jurisdiction over his claim under Virginia Code § 18.2-152.5,6 because that claim
“raises a novel or complex issue of State law.” Plaintiff urges the Court to accordingly remand
that claim to state court.7
Virginia Code § 18.2-152.5 provides that:
A person is guilty of the crime of computer invasion of privacy when he uses a
computer or computer network and intentionally examines without authority any
employment, salary, credit or any other financial or identifying information . . .
Va. Code § 18.2-152.5. The statute provides a private right of action by “[a]ny person whose
property or person is injured” by violation of the statute, and allows an injured party to
“sue . . . and recover any damages sustained and the costs of the suit.” Va. Code § 18.2-152.12.
Plaintiff argues that whether Virginia Code § 18.2-152.5 allows for punitive damages is a
novel issue of Virginia state law. Plaintiff acknowledges that a Virginia circuit court has
addressed whether punitive damages are available under § 18.2-152.5. See McGladrey & Pullen,
6
Plaintiff initially argued that the Court should decline to exercise supplemental jurisdiction over his claim under
Va. Code § 2.2-2902.1. As discussed, infra, Plaintiff has withdrawn that claim and thus his argument is moot.
7
Plaintiff also argues that, should the Court decline supplemental jurisdiction over any of Plaintiff’s state law
claims, it must decline jurisdiction over all of Plaintiff’s state law claims. This argument is a misreading of 28
U.S.C. § 1367(c)(1) and is easily rejected. This Court may, however, remand to state court any claims over which it
declines to exercise supplemental jurisdiction. See, e.g., Shah v. Hyatt Corp., No. 10–1492, 2011 WL 1570598, at *4
(3d Cir. April 27, 2011).
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L.L.P. v. Sharder, 62 Va. Cir. 401, 411 (Va. Cir. Ct. 2003) (holding that punitive damages are
not available under § 18.2-152.5). Plaintiff, however, “disagrees with the reasoning of
McGladery [sic]” and argues that the case is only “nominal persuasive authority from the lowest
court of record in Virginia.” Docket No. 20, at 11–12.
Plaintiff’s Section 18.2-152.5 claim does not present a novel issue of state law within the
meaning of 28 U.S.C. § 1367(c)(1). Although only one Virginia circuit court has addressed
whether punitive damages are available under the statute, that seems to be all that is required.
Accord Winingear, 2013 WL 5672668, at *1 (“[I]ssues that have not been addressed by any state
court (is a case of first impression) . . . are appropriately remanded.”) (emphasis added). In this
case, a state court has addressed the issue. Moreover, as Defendants have pointed out, courts in
the Eastern and Western Districts of Virginia routinely exercise supplemental jurisdiction over
claims under Section 18.2-15.5. See, e.g., Stultz v. Virginia Dept. of Motor Vehicles, C.A. No.
7:13CV00589, 2015 WL 4648001 (W.D. Va. Aug. 5, 2015); Global Policy Partners, LLC v.
Yessin, 686 F. Supp. 2d 631 (E.D. Va. 2009).
Finally, Plaintiff does not seriously dispute that his state law claims are insufficiently
related to his federal claims. Plaintiff’s state law claims share a common nucleus of operative
facts with his federal claims. Supplemental jurisdiction therefore exists.
For the above reasons, Plaintiff’s motion to remand to state court will be denied.
1st
Entered this ________ day of December , 2015.
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