Board of Supervisors Of Alleghany County v. Kern

Filing 6

Order to Remand Case to Alleghany County Circuit Court. Signed by Judge Thomas T. Cullen on 9/3/2021. (Order mailed to Pro Se Party via US Mail)(aab)

Case 7:21-cv-00448-TTC Document 6 Filed 09/07/21 Page 1 of 3 Pageid#: 418

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
BOARD OF SUPERVISORS OF
ALLEGHANY COUNTY,
Plaintiff,
v.
DONNIE T.A.M. KERN,
Defendant.

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Civil Action No. 7:21-cv-00448
ORDER
By:

Hon. Thomas T. Cullen
United States District Judge

On December 2, 2020, Plaintiff Board of Supervisors of Alleghany County (“the
Board”) filed a petition in the Circuit Court of Alleghany County, pursuant to Virginia Code
§ 24.2-234, to remove Defendant Donnie T.A.M. Kern as a member of the Alleghany County
School Board. On December 3, the circuit court ordered Kern to show cause at a hearing
scheduled on December 14, 2020, why he should not be removed from office. Kern thereafter
demanded a jury trial, which the circuit court set for August 25–26, 2021. On August 10, Kern
moved for continuance and terminated his counsel. He now proceeds pro se.
On August 24, 2021, Kern filed a notice of removal in this court. In that filing Kern
alleges that the Board’s petition for his removal violated “Section 504 of the Rehabilitation
Act, Title VI of the Civil Rights Act of 1964, U.S. Constitution Amendment I, U.S.
Constitution Amendment VIII, Constitution Amendment XIV, 42 U.S.C. § 1983 [and]
§ 1985.” (ECF No. 2, at 2.)
“A defendant may remove any action from a state court to a federal court if the action
could have originally been brought in federal court.” Yarnevic v. Brink’s, Inc., 102 F.3d 753, 754

Case 7:21-cv-00448-TTC Document 6 Filed 09/07/21 Page 2 of 3 Pageid#: 419

(4th Cir. 1996) (citing 28 U.S.C. § 1441). “If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). To determine whether a court can exercise federal question jurisdiction, a court
must look at “the face of the plaintiff’s properly pleaded complaint.” Verizon Md., Inc. v. Global
NAPS, Inc., 377 F.3d 355, 363 (4th Cir. 2004); see 28 U.S.C. § 1331. The Board’s petition in
the circuit court was filed under Virginia Code § 24.2-234 and arises solely under state, not
federal, law. A defendant cannot create federal question jurisdiction to remove a case to federal
court simply by raising a federal counterclaim or defense. See Holmes Grp., Inc. v. Vornado Air
Circulation Sys., 535 U.S. 826, 831 (2002) (“[A] counterclaim—which appears as part of the
defendant’s answer, not as part of the plaintiff’s complaint—cannot serve as the basis for
‘arising under’ jurisdiction.”)
The court also could not properly exercise diversity jurisdiction over the original claim.
Diversity jurisdiction requires that the amount in controversy exceeds $75,000 and the dispute
is “between citizens of different states.” See 28 U.S.C. § 1332. Kern is a citizen of Alleghany
County, Virginia, and the Board sits in Covington, Virginia. Both are Virginia citizens and this
court cannot exercise diversity jurisdiction over the claim. See Appling v. Alleghany Cnty., No.
5:12cv37, 2013 WL 1319460, at *5 (W.D.N.C. Mar. 28, 2013) (treating local government
entities seated in North Carolina as a citizens of North Carolina); Worsley v. Wake Cnty., No.
5:09cv498, 2010 WL 883015, at *4 (E.D.N.C. Mar. 8, 2010) (“The complaint alleges that the
Wake County local government is in Raleigh, North Carolina and that the plaintiff also resides
in Raleigh, North Carolina. Because both parties appear to reside in North Carolina, the
requisite diversity of citizenship does not exist.”).
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Case 7:21-cv-00448-TTC Document 6 Filed 09/07/21 Page 3 of 3 Pageid#: 420

For these reasons, the court finds that it lacks subject matter jurisdiction, and must
remand the case. See 28 U.S.C. § 1447(c). It is hereby ORDERED that this matter is
REMANDED to the Circuit Court of Alleghany County for all future proceedings. The Clerk
is directed to forward a copy of this Order to all counsel of record.
ENTERED this 3rd day of September, 2021.

/s/ Thomas T. Cullen
________________________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE

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