Carter v. The Marion County Coal Company et al

Filing 28

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS 22 MOTIONS TO STRIKE AND GRANTING PLAINTIFFS 16 MOTIONS TO REMAND. Court REMANDS case to the Circuit Court; and DENIED the plaintiffs requests for the imposition ofa ttorneys fees and costs under 28 U.S.C. § 1447(c). It is so ORDERED. Signed by District Judge Irene M. Keeley on 8/10/2017. (copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES L. ALDRIDGE, GARY BARNETT,
KEVIN B. CARTER, DAVID L. CHAPMAN,
CHARLES D. GLASPELL, WILLIAM F. GOSS,
JOHN KELLAWAY, JEFFREY D. WATSON,
and THOMAS S. ZAPACH,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:17CV79
Consolidated with 1:17CV80,
1:17CV81, 1:17CV82, 1:17CV83,
1:17CV84, 1:17CV85, 1:17CV86,
and 1:17CV87
(Judge Keeley)

THE MARION COUNTY COAL CO.;
MURRAY AMERICAN ENERGY, INC.;
ROBERT E. MURRAY; PAUL B. PICCOLINI;
PAMELA S. LAYTON; BRIAN FREDERICKSON;
MATTHEW C. EFAW; and THOMAS H.
SIMPSON, a/k/a “Pete,”
Defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
On March 14, 2017, nine individual plaintiffs filed separate
employment discrimination complaints in the Circuit Court of Marion
County, West Virginia (“Circuit Court”), against the defendants,
The Marion County Coal Co. (“TMCC”), Murray American Energy, Inc.,
Robert E. Murray (“Murray”), Paul B. Piccolini, Pamela S. Layton
(“Layton”), Brian Frederickson, Matthew C. Efaw (“Efaw”), and
Thomas H. Simpson, a/k/a “Pete” (“Simpson”). On May 15, 2017, the
defendants removed each case, invoking diversity jurisdiction based

ALDRIDGE V. THE MARION COUNTY COAL CO., ET AL.

1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
on the allegation that Layton and Simpson, both West Virginia
residents, had been fraudulently joined to defeat diversity.
At a combined scheduling conference held on July 24, 2017, the
Court heard argument on the pending motions. With the consent of
the parties, it consolidated the nine cases prior to ruling on the
pending motions, and designated as lead case the complaint filed by
the plaintiff, James L. Aldridge (“Aldridge”).1 For the reasons
stated on the record during the scheduling conference and those
that follow, the Court DENIED the defendants’ motions to strike,
GRANTED the plaintiffs’ motions to remand, and REMANDED these cases
to the Circuit Court of Marion County.
I. BACKGROUND
The plaintiffs’ allegations arise primarily out of three
reductions in force that took place at TMCC mines in May 2015,
December 2015, and April 2016. On March 14, 2017, each of the
plaintiffs

filed

a

complaint

in

the

Circuit

Court,

alleging

violations of the West Virginia Human Rights Act (“WVHRA”) and
public policy. All nine were employed by TMCC and allege that the
decision

to

terminate

their

employment,

1

or

to

engage

in

a

Unless otherwise noted, docket entries in this memorandum
opinion and order refer to Aldridge’s case, Civil Action No.
1:17cv79.
2

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
discriminatory course of conduct that caused them to resign, was
improperly based on each plaintiff’s age or disability.
With

few

exceptions,

Aldridge’s

complaint

is

a

fair

representation of those filed in each of the removed cases.
Aldridge

named

three

allegedly

non-diverse

defendants.

Those

include Layton, who is the TMCC Human Resources Supervisor, Efaw,
who is is a TMCC mine manager,2 and Simpson, who is TMCC’s Vice
President (Dkt. No. 1-1 at 7). According to Aldridge, he was
employed by the defendants as a safety inspector from December 5,
2013, until May 29, 2015, when he was terminated after being
provided a letter announcing a reduction-in-force due to adverse
market conditions. Id. at 8.
In his first claim for relief, Aldridge alleges that his
“termination . . . was based, in whole or in part, upon [his] age,
in violation of the West Virginia Human Rights Act, West Virginia

2

Efaw executed an affidavit stating that, in September 2016,
he returned to Illinois where he is employed, maintains a bank
account, is attempting to purchase his rented residence, has
purchased land upon which he considers constructing a home, and
intends to remain indefinitely. See Sun Printing & Publ’g Ass’n v.
Edwards, 194 U.S. 377, 383 (1904) (noting that domicile is governed
by residence and the intention to remain). Because the plaintiffs
have not provided any contrary evidence, the Court will assume that
Efaw is not a West Virginia resident.
3

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
Code § 5-11-9(1).”3 He asserts damages based on “the defendants’
actions.”
Defendants

Id.

Aldridge’s

refused

accommodation,”

and

to
that

second

provide
such

claim
the

contends

Plaintiff

“[d]iscrimination

that
a

“[t]he

reasonable

based

upon

a

disability violates the West Virginia Human Rights Act, W. Va. Code
§ 5-11-1 et seq.” Although he claims that age discrimination led to
his

termination,

Aldridge

also

alleges

that

disability

discrimination led to his constructive discharge.4 In his third and
fourth claims, Aldridge alleges that the defendants violated the
WVHRA, conferring jurisdiction on the Circuit Court pursuant to W.
Va. Code § 55-7-9, and that they violated West Virginia public
policy. Id. at 9-10. For relief, he seeks “lost wages and benefits,
back pay, front pay, damages for indignity, embarrassment and
humiliation, and punitive damages.” Id. at 11.
When the defendants removed the cases to this Court on May 15,
2017, they alleged fraudulent joinder. To rebut that, Layton and
Simpson each executed an affidavit averring that they “did not have
input into, and participated in no way in” TMCC’s decision to

3

Plaintiffs
Glaspell
and
Kellaway
base
discrimination claims on constructive discharge.
4

their

age

Plaintiffs Barnett, Watson, and Zapach do not make claims
for disability discrimination.
4

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
terminate the plaintiffs (Dkt. Nos. 1; 1-2; 1-4). They argued that
the plaintiffs therefore could not possibly establish a cause of
action against them under the WVHRA (Dkt. No. 1 at 4). The next
day, the defendants all filed three motions seeking to dismiss each
complaint (Dkt. Nos. 5; 7; 9).
On May 24, 2017, each plaintiff filed an amended complaint as
of right (Dkt. No. 13), a motion to remand (Dkt. No. 16), and a
motion to stay rulings on the pending motions to dismiss until
after

the

Court

ruled

on

the

motion

to

remand

or,

in

the

alternative, to deny the motions to dismiss as moot (Dkt. No. 14).
On June 2, 2017, the Court denied the defendants’ motions to
dismiss as moot (Dkt. No. 18). After briefing the motions to
remand, the defendants moved to strike as untimely the plaintiffs’
reply briefs or, in the alternative, their corresponding affidavits
(Dkt. No. 22).
II. STANDARDS OF REVIEW
A.

Removal and Remand
Title 28 U.S.C. § 1441(a) provides that “any civil action

brought in a state court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant
or the defendants.” See also King v. Marriott Int’l, Inc., 337 F.3d

5

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
421, 424 (4th Cir. 2003). Nonetheless, “federal courts, unlike
state courts, are courts of limited jurisdiction, created by
Congress

with

specified

jurisdictional

requirements

and

limitations,” Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th
Cir. 2008), and federalism counsels that removal jurisdiction
should be strictly construed. Palisades Collections LLC v. Shorts,
552 F.3d 327, 334 (4th Cir. 2008) (citing Md. Stadium Auth. v.
Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005)).
“The burden of establishing federal jurisdiction is placed
upon the party seeking the removal.” Mulcahey v. Columbia Organic
Chems., Inc., 29 F.3d 148, 151 (4th Cir. 1994). “All doubts about
the propriety of removal should be resolved in favor of retaining
state court jurisdiction,” and thus remanding a case to state
court. Vitatoe v. Mylan Pharm., Inc., 2008 WL 3540462, at *2
(N.D.W. Va. Aug. 13, 2008) (citing Hartley v. CSX Transp., Inc.,
187 F.3d 422, 425 (4th Cir. 1999)).
B.

Fraudulent Joinder
“The district courts have original jurisdiction of all civil

actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between citizens
of different states . . . .” 28 U.S.C. § 1332(a). This provision

6

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
has been consistently interpreted “to require complete diversity of
citizenship of each plaintiff from each defendant.” Rosmer v.
Pfizer Inc., 263 F.3d 110 (4th Cir. 2001) (Motz, J., dissenting)
(citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)).
Naming a non-diverse defendant does not necessarily defeat
diversity

jurisdiction.

“effectively

permits

the

The

doctrine

district

of

court

fraudulent
to

joinder

disregard,

for

jurisdictional purposes, the citizenship of certain nondiverse
defendants, assume jurisdiction over a case, dismiss the nondiverse
defendants, and thereby retain jurisdiction.” Mayes v. Rapoport,
198 F.3d 457, 461 (4th Cir. 1999). In the Fourth Circuit, “[t]he
party alleging fraudulent joinder bears a heavy burden-it must show
that the plaintiff cannot establish a claim even after resolving
all issues of law and fact in the plaintiff's favor.” Johnson v.
Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015) (quoting
Hartley, 187 F.3d at 424).
“The removing party must show either outright fraud in the
plaintiff's pleading of jurisdictional facts or that there is no
possibility that the plaintiff would be able to establish a cause
of action against the in-state defendant in state court.” Id.
(internal quotation and citation omitted). When a removing party
contends that there is “no possibility” of establishing a cause of
7

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
action, “a plaintiff’s claim against a non-diverse defendant ‘need
not ultimately succeed to defeat removal; only a possibility of a
right to relief need be asserted.’” Id. (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229, 233 (4th Cir. 1993)).
A mere “glimmer of hope” suffices, a standard “even more
favorable to the plaintiff than the standard for ruling on a motion
to dismiss under Fed. R. Civ. P. 12(b)(6).” Mayes, 198 F.3d at 466
(quoting Hartley, 187 F.3d at 424). “[T]he court is not bound by
the allegations of the pleadings, but may instead ‘consider the
entire record, and determine the basis of joinder by any means
available.’” AIDS Counseling & Testing Ctrs. v. Grp. W Television,
Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (quoting Dodd v. Fawcett
Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir. 1964)).
III. APPLICABLE LAW
The WVHRA makes it an “unlawful discriminatory practice . . .
[f]or any employer to discriminate against an individual with
respect

to

compensation,

hire,

tenure,

terms,

conditions

or

privileges of employment if the individual is able and competent to
perform the services required.” W. Va. Code § 5-11-9(1). An
“employer” is “any person employing twelve or more persons within
the state.” Id. § 5-11-3(d).

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
In addition, the WVHRA imposes liability on individuals. It is
an “unlawful discriminatory practice . . . [f]or any person to”:
(A)

Engage in any form of threats or reprisal, or to
engage in, or hire, or conspire with others to
commit acts or activities of any nature, the
purpose of which is to harass, degrade, embarrass
or cause physical harm or economic loss or to aid,
abet, incite, compel or coerce any person to engage
in any of the unlawful discriminatory practices
defined in this section[.]

Id. § 5-11-9(7).
“The term ‘person,’ as defined and utilized within the context
of the West Virginia Human Rights Act, includes both employees and
employers. Any contrary interpretation, which might have the effect
of barring suits by employees against their supervisors, would be
counter to the plain meaning of the statutory language and contrary
to the very spirit and purpose of this particular legislation.”
Syl. Pt. 3, Holstein v. Norandex, Inc., 461 S.E.2d 473 (W. Va.
1995); see also W. Va. Code § 5-11-3(a). “A cause of action may be
maintained by a plaintiff employee as against another employee
under the West Virginia Human Rights Act. Further, the cause of
action may properly be based upon an allegation that the defendant
employee

aided

or

abetted

an

employer

engaging

in

unlawful

discriminatory practices.” Holstein, 461 S.E.2d 473, Syl. Pt. 4.

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1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
IV. DISCUSSION
A.

Motion to Strike
The Court first must consider the defendants’ motions to

strike as untimely the plaintiffs’ reply briefs or, alternatively,
their corresponding affidavits (Dkt. No. 22).
1.

Untimely Filing

After the defendants responded to their motions to remand on
June 7, 2017, the plaintiffs filed reply memoranda two days late,
on

June

16,

2017.

The

defendants

argue

that,

because

the

plaintiffs’ reply memoranda were not filed within seven days, they
must be stricken as untimely (Dkt. No. 23 at 2-3). The plaintiffs
note that the Local Rules of General Procedure (“Local Rules”)
permit three additional days to reply when service of a response is
by electronic means, and that the Court should excuse their
misinterpretation of the rules (Dkt. No. 24 at 4-5).
The initial question presented is whether the rules provided
seven or ten days in which the plaintiffs could file their reply
memoranda. Prior to 2016, Fed. R. Civ. P. 6(d) added three days to
a seven-day reply period if service of a response had been made by
electronic means. That provision is no longer in effect, but
unamended Local Rule 5.06(b) continues to equate electronic service

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
with service by first class mail, and Local Rule 5.06(g) provides
that, “[p]ursuant to Fed. R. Civ. P. 6(d) . . . service by
electronic means is treated the same as service by mail for
purposes of adding three (3) days to the prescribed period to
respond.”
The

Local

Rules

also

state

that

they

“supplement

and

complement the Federal Rules of Civil Procedure . . . and are
applied, construed, and enforced to avoid inconsistency with those
controlling statutes and other rules.” Critically, Local Rule 5.09
specifically directs the application of revised Fed. R. Civ. P. 6,
and the Court’s electronic filing website reminds attorneys that
the revision “make[s] the 3-day mailing rule no longer applicable
to electronic filers and those who have consented to electronic
service.” There thus is no doubt that the plaintiffs had only seven
days in which to file their replies.
Although the plaintiffs’ filings were two days late, Fed. R.
Civ. P. 6(b) gives the Court discretion to extend a deadline after
its passage upon a showing of “excusable neglect.”
Under the law of the United States Court of Appeals of
the Fourth Circuit, “ ‘[e]xcusable neglect’ is not easily
demonstrated, nor was it intended to be . . . ‘the burden
of demonstrating excusability lies with the party seeking
the extension and a mere concession of palpable oversight
or administrative failure generally has been held to fall
short of the necessary showing . . .’” Thompson v. E.I.
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir.1995)
(quoting In re O.P.M. Leasing Serv., Inc., 769 F.2d 911,
917 (2d Cir. 1985)). A finding of excusable neglect
ultimately comes down to a balance of the equities, and
the decision whether or not to grant an extension
“remains committed to the discretion of the district
court.” Id. at 532 n.2; see also United States v.
Borromeo, 945 F.2d 750, 754 (4th Cir. 1991).
. . .
The Supreme Court has developed guidelines of factors
that courts should consider when determining whether a
moving party has established excusable neglect. The
elements for consideration are: (1) “the danger of
prejudice to [the non-moving party],” (2) “the length of
the delay and its potential impact on judicial
proceedings,” (3) “the reason for the delay, including
whether it was in the reasonable control of the movant,
and” (4) “whether the movant acted in good faith.”
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
Quite obviously, the most important of these factors in
deciding whether the “neglect” was “excusable” is the
proffered reason for it. Thompson, 76 F.3d at 534.
Anderson v. Spencer, No. 5:09CV117, 2011 WL 6748827, at *2-*3
(N.D.W. Va. Dec. 21, 2011).
Here, the Court agrees with the defendants that the “most
important” factor, the proffered reason for the neglect, weighs
against the plaintiffs: Fed. R. Civ. P. 6 controls and no longer
permits three additional days to reply when service of a response
is accomplished by electronic means. See Thompson, 76 F.3d at 533
(“[I]nadvertence, ignorance of the rules, or mistakes construing

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
the rules do not usually constitute ‘excusable neglect’ . . . .”).
Nevertheless, the plaintiffs’ misinterpretation is mitigated by the
fact that the Local Rules of this District have not been updated to
reflect amendments to Fed. R. Civ. P. 6. Moreover, the remaining
three factors weigh decidedly in favor of extending the deadline
due to excusable neglect.
First, there is no danger of prejudice to the defendants. They
have, in fact, not identified any prejudice aside from the Court’s
consideration of the plaintiffs’ arguments. Second, the period of
delay at issue is brief; the plaintiffs erroneously filed their
replies only two days after the proper seven-day deadline had
passed. These two days did not affect the parties’ briefing or the
Court’s consideration of the motion to remand. Indeed, regardless
of when the plaintiffs’ reply briefs were filed, the defendants
would not have had an opportunity to respond to them. Finally, the
defendants do not allege that the plaintiffs acted in bad faith by
misconstruing the applicable rules. Therefore, the relevant factors
indicate excusable neglect, and the defendants’ motions to strike
the reply briefs as untimely are DENIED.

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
2.

Attached Affidavits

In the alternative, the defendants argue that the affidavits
attached to the plaintiffs’ reply memoranda should be stricken as
improper (Dkt. No. 23 at 3). This argument has merit. Fed. R. Civ.
P. 6(c)(2) provides that “[a]ny affidavit supporting a motion must
be served with the motion.” The Court has discretion to consider
late-filed affidavits if it chooses to do so on the basis of good
cause or excusable neglect. See Orsi v. Kirkwood, 999 F.2d 86, 91
(4th Cir. 1993) (finding a delay inexcusable partially because the
documents

in

question

were

available

well

before

the

filing

deadline). In addition, Rule 6(c)(2) “does not preclude affidavits
supporting a reply brief when they respond to evidence supporting
an opposition brief.” Robinson v. Empire Equity Grp., Inc., No.
WDQ-09-1603, 2009 WL 4018560, at *2 & n.14 (D. Md. Nov. 18, 2009).
In other words, affidavits may accompany a reply brief if they
support the reply rather than the original motion. See Peters v.
Lincoln Elec. Co., 285 F.3d 456, 476 (6th Cir. 2002); see also
McGinnis v. Se. Anesthesia Assocs., P.A., 161 F.R.D. 41, 42
(W.D.N.C. 1995) (“[A] party may not file a motion unsupported by
any evidence only to spring the evidence on the opposing party on
a later date.”). Reply affidavits should not present new issues to

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
which the opposing party will not have an opportunity to respond.
See

Omega

Cable

&

Commc’n,

Inc.

v.

Time

Warner,

Inc.,

No.

5:05CV1780, 2008 WL 163613, at *1 (N.D. Ohio Jan. 16, 2008).
Here, the non-diverse defendants, Layton and Simpson, attached
affidavits to their notices of removal, averring that they had not
participated in TMCC’s decision to select the plaintiffs for
discharge (Dkt. Nos. 1-2; 1-3; 1-4). In support of their motions to
remand, the plaintiffs argued that their complaints sufficiently
alleged involvement by the non-diverse defendants. However, they
failed to submit timely counter-affidavits to refute the affidavits
of Layton and Simpson (Dkt. No. 17 at 7-10). The defendants
therefore have argued that the plaintiffs have failed to make a
sufficient showing to overcome the undisputed averments in the
affidavits of Layton and Simpson (Dkt. No. 20 at 10).
When the plaintiffs filed their reply briefs, they attached a
number of contrary affidavits stating that several of them had been
called

“old

timers,”

had

been

informed

that

management

was

targeting older employees for termination, and had been advised by
non-diverse defendants that “we have decided to terminate you.”
There is no doubt that the plaintiffs could have filed these
affidavits

when

they

filed

their

motion

to

remand,

as

the

affidavits contain no new information and support the plaintiffs’
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
contention that non-diverse defendants were involved. See Orsi, 999
F.2d at 91. Nonetheless, two factors counsel against striking the
affidavits as improper under Rule 6(c)(2).
First, in support of their motions to remand, the plaintiffs
argued that, despite the non-diverse defendants’ affidavits, the
allegations in their complaints are sufficient to warrant remand
because

“this

Court

must

accept

as

true

all

well-pleaded

allegations and must construe the factual allegations in the light
most favorable to the plaintiff” (Dkt. No. 17 at 9). Only after the
defendants argued that the plaintiffs must proffer evidence did
they seek to provide additional factual support for the allegations
(Dkt. Nos. 20 at 9-10; 21 at 9). Therefore, the plaintiffs’
affidavits

permissibly

respond

to

evidence

presented

by

the

defendants. Robinson, No. WDQ-09-1603, 2009 WL 4018560, at *2 &
n.14.
Second, the plaintiffs’ reply affidavits did not raise a new
issue to which the defendants will not have an opportunity to
respond. See Omega Cable, No. 5:05CV1780, 2008 WL 163613, at *1.
The defendants initially raised this issue themselves by presenting
relevant

affidavit

evidence

from

each

non-diverse

defendant.

Moreover, even if the defendants could create a further factual
dispute with additional evidence, at this stage, the dispute would
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
still be resolved in favor of the plaintiffs. See Johnson, 781 F.3d
at 704. The defendants’ motions to strike the plaintiffs’ reply
affidavits therefore are DENIED.
B.

Motions to Remand
The defendants argue that the plaintiffs’ cannot establish a

cause of action against the non-diverse defendants (Dkt. No. 1 at
4). Because the plaintiffs have a possible right to relief based on
age-discrimination, the defendants have not carried their burden.
1.

Analogous Cases

The defendants rely principally on Pack v. S&S Firestone,
Inc., No. 5:14-cv-17286, 2014 WL 12625463 (S.D.W. Va. Aug. 27,
2014), in support of their argument. In Pack, the plaintiff was
employed by the defendant corporation as a tire technician. Shortly
after having surgery, the plaintiff was let go, allegedly due to
“cut backs”; eventually, however, the defendant replaced him with
a much younger individual. As a result, he filed suit against the
corporation and his supervisor for age discrimination in violation
of the WVHRA. Id. at *1. The tire corporation removed the case,
arguing that the supervisor was not an “employer” within the
meaning of the WVHRA, that the plaintiff could not establish a
cause of action against him, and he thus had been fraudulently

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
joined. Id. at *3. The plaintiff moved to remand, arguing he had
alleged

that

the

defendants

-

including

his

supervisor

-

collectively discriminated against him in violation of W. Va. Code
§ 5-11-9, which includes “persons” such as supervisors. Id. at *4.
Although the plaintiff’s complaint contained references to W.
Va. Code § 5-11-9 as a whole, the court found it significant that
the plaintiff had only specifically alleged a violation of § 5-119(1), not § 5–11-9(7), and concluded:
Unfortunately for the Plaintiff, here, his complaint does
not contain a claim for violating W. Va. Code
§ 5-11-9(7), nor does it allege that White aided,
abetted, incited, compelled or coerced the alleged
discrimination. Accordingly, there is no cause of action
against White, a fellow employee and the Plaintiff's
supervisor, under W. Va. Code § 5-11-9(1), as currently
pled. The Defendants have successfully met their burden
of demonstrating that the Plaintiff could not possibly
establish a cause of action against White for violating
. . . W. Va. Code § 5-11-9(1). Therefore, White must be
dismissed as fraudulently joined, and, consequently, this
Court enjoys subject matter jurisdiction over the
remaining Defendants.
Id. at *7.
Other cases, however, have found a possibility of relief under
the WVHRA in similar circumstances. For example, in Simmons v. Taco
Bell of America, Inc., the plaintiff filed suit in the Circuit
Court of Kanawha County alleging that she had been terminated from
her employment at Taco Bell on the basis of her age. The plaintiff
18

ALDRIDGE V. THE MARION COUNTY COAL CO., ET AL.

1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
also named her manager, a non-diverse defendant, whom she alleged
had authority over her. Taco Bell removed the case, claiming that
the manager had been fraudulently joined because she was not an
“employer” and “exercised no authority which adversely impacted the
Plaintiff.” No. 2:11-cv-00125, 2011 WL 2076413, at *1 (S.D.W. Va.
May 25, 2011).
The district court rejected Taco Bell’s first argument, noting
simply that the WVHRA permits individuals to be held liable for
discrimination.

Id.

at

*2.

The

court

also

found

a

“slight

possibility of a right to relief” even though “[t]he only specific
allegations against [the manager] in the bare-bones pleadings
[were] that he [was] a West Virginia resident who was a management
employee of Taco Bell during the relevant time period.” Although
this may have been insufficient to state a claim, the court found
it was sufficient to establish a possibility of relief. Id. at *3.
Moreover, despite Taco Bell’s contention that the manager had
not participated in the decision to terminate her, the plaintiff
presented contrary evidence indicating that the manager had been
her “de facto” supervisor. Resolving this factual dispute in favor
of the plaintiff, the district court remanded the case to state
court. Id. at *3; see also Mills v. Blackhawk Mining, LLC, No.
2:15-cv-13338,

2015

WL

6511316
19

(S.D.W.

Va.

Oct.

28,

2015)

ALDRIDGE V. THE MARION COUNTY COAL CO., ET AL.

1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
(reasoning

that,

although

a

manager

denied

involvement,

“the

plaintiff ha[d] adequately alleged that [the manager] participated
in the decision to terminate his employment”); Hannah v. GC Servs.
Ltd. P’ship, No. 3:14-24866, 2015 WL 400620 (S.D.W. Va. Jan. 28,
2015) (remanding because the plaintiff had alleged that non-diverse
employees “were managers and made significant decisions and had
substantial input into the decision regarding” her employment, such
that she believed they “had input in the decision to fire”).
This Court adopted a similar approach in Cain v. CVS Pharmacy,
Inc., No. 5:07CV117, 2007 WL 3228115 (N.D.W. Va. Oct. 30, 2007). In
Cain, the plaintiff filed suit under the WVHRA against her employer
and a non-diverse “co-worker who purportedly was involved in the
unlawful decision to discharge her” based on her pregnancy. Id. at
*1. The plaintiff alleged that the coworker had “participated in”
the alleged acts of discrimination. The defendants removed the
case, arguing that the co-worker had been fraudulently joined. The
Court disagreed.
Examining West Virginia law in the light most favorable
to Cain, it is clear that a cause of action exists in
West Virginia against individuals under the Human Rights
Act. See, e.g., Syl. Pt. 4, Holstein v. Normandex, Inc.,
461 S.E.2d 473 (W. Va. 1995). Moreover, any person,
whether or not that person has decision-making or
supervisory authority, can be liable under the West
Virginia Human Rights Act if that person “aid[s],
abet[s], incite[s], compel[s], or coerce[s] any person to
20

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1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
engage in any of the unlawful discriminatory practices
defined in [the Act].” W. Va. Code § 5-11-9. Therefore,
viewing the law in the light most favorable to Cain, she
has asserted a viable cause of action against Young.
. . .
An examination of the defendants' assertions and a review
of the entirety of the record in the light most favorable
to Cain establishes that the defendants have failed to
carry their heavy burden to show that there is no
“glimmer of hope” that Cain could prove any set of facts
to support her claims against Young.
Id. at *2. Because the co-worker had not been fraudulently joined,
the Court remanded the case. Id.
2.

Application

The question presented by the plaintiffs’ motions to remand is
whether they have asserted a possible right to relief against
Layton and Simpson under the WVHRA. To make this determination, the
Court must review the entire record “and resolv[e] all issues of
law and fact in the plaintiff’s favor.” Johnson, 781 F.3d at 704.
Upon careful review, the Court concludes that the defendants cannot
meet

their

heavy

burden

to

establish

that

the

law

or

facts

completely foreclose from the plaintiffs the relief sought from
Layton and Simpson.
First, there is no doubt that the WVHRA provides a cause of
action

for

age

and

disability

21

discrimination

perpetrated

by

ALDRIDGE V. THE MARION COUNTY COAL CO., ET AL.

1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
individuals, including fellow employees. See W. Va. Code § 5-119(7); Holstein v. Norandex, Inc., 461 S.E.2d 473 (W. Va. 1995).
“Accordingly, the plaintiff[s] can, as a matter of law, bring a
claim against” Layton and Simpson. Simmons, No. 2:11-cv-00125, 2011
WL 2076413, at *2.
Second, the plaintiffs’ complaints establish a possible right
to relief pursuant to those provisions of the WVHRA. Although the
defendants

contend

that

the

plaintiffs’

failure

to

cite

the

specific code section regarding individual WVHRA liability or to
use statutory language such as “aiding and abetting,” see W. Va.
Code § 5-11-9(7), is fatal, that failure is not determinative; the
plaintiffs need not state a claim for relief in order to defeat an
assertion of fraudulent joinder. Mayes, 198 F.3d at 466.
The complaints specifically allege that Layton is TMCC’s Human
Resources Director and that Simpson is a TMCC Vice President. See
Simmons, No. 2:11-cv-00125, 2011 WL 2076413, at *3. The plaintiffs
further allege that “the defendants’ actions” resulted in damage,
which arises either from constructive discharge or “termination
from . . . employment . . . based, in whole or in part, upon
plaintiff’s age, in violation of the West Virginia Human Rights
Act, West Virginia Code § 5-11-9(1)” (Dkt. No. 1-1 at 8). The
complaints thus plainly allege that “the defendants,” including
22

ALDRIDGE V. THE MARION COUNTY COAL CO., ET AL.

1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
non-diverse

management

employees,

terminated

the

plaintiffs’

employment based on their age. Such individual participation,
although thinly pleaded, could subject Layton and Simpson to
“aiding and abetting” liability under § 5-11-9(7).
No doubt, the allegations of the complaint and the non-diverse
defendants’ affidavits are “limited and contradictory.” Simmons,
No. 2:11-cv-00125, 2011 WL 2076413, at *3. But resolving this
factual dispute in favor of the plaintiffs, as the Court must,
leads to the conclusion that their “bare bones” allegations of
discrimination are sufficient to establish a “possibility of a
right to relief” against Layton and Simpson under the WVHRA. Cf.
Mills, No. 2:15-cv-13338, 2015 WL 6511316. But see Pack, No. 5:14cv-17286,

2014

WL

12625463,

at

*7.5

Therefore,

because

the

plaintiffs have a “glimmer of hope” for obtaining relief against

5

Moreover, although not necessary to the Court’s conclusion,
the plaintiffs’ reply affidavits provide further evidence of the
existing factual dispute. Each of the plaintiffs submitted two
affidavits that implicate Layton and Simpson in the reduction-inforce decision-making. Plaintiff Chapman recounts that Murray
advised he was being demoted because he was “old and set in [his]
ways,” and Chapman was later informed of his termination during a
meeting with Simpson and Layton at which they said “we have decided
to terminate you” (Dkt. No. 21-4). Likewise, Aldridge was informed
of his termination during a meeting with Simpson and Layton at
which they said “we have decided to terminate you from your
employment” (Dkt. No. 21-2).
23

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1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
the non-diverse defendants, the Court GRANTED the motions to
remand.6
V. CONCLUSION
In conclusion, for the reasons discussed, the Court:
1)

DENIED the defendants’ motions to strike (1:17cv79, Dkt.
No. 22; 1:17cv80, Dkt. No. 22; 1:17cv81, Dkt. No. 22;
1:17cv82, Dkt. No. 22; 1:17cv83, Dkt. No. 23; 1:17cv84,
Dkt. No. 22; 1:17cv85, Dkt. No. 22; 1:17cv86, Dkt. No.
22; 1:17cv87, Dkt. No. 22);

2)

GRANTED the plaintiffs’ motions to remand (1:17cv79, Dkt.
No. 16; 1:17cv80, Dkt. No. 16; 1:17cv81, Dkt. No. 16;
1:17cv82, Dkt. No. 16; 1:17cv83, Dkt. No. 17; 1:17cv84,
Dkt. No. 16; 1:17cv85, Dkt. No. 16; 1:17cv86, Dkt. No.
16; 1:17cv87, Dkt. No. 16);

3)

REMANDED these cases to the Circuit Court; and

4)

DENIED the plaintiffs’ requests for the imposition of
attorneys’ fees and costs under 28 U.S.C. § 1447(c),

6

Had the Court declined to remand their original complaints,
the plaintiffs argued that it should remand based on their amended
complaints (Dkt. No. 17 at 11). Although the Court need not reach
this issue, it notes that such an approach likely would be improper
here. See Dotson v. Elite Oil Field Servs., Inc., 91 F. Supp. 3d
865, 870 (N.D.W. Va. 2015); Gum v. Gen. Elec. Co., 5 F. Supp. 2d
412 (S.D.W. Va. 1998).
24

ALDRIDGE V. THE MARION COUNTY COAL CO., ET AL.

1:17CV79

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS
TO STRIKE AND GRANTING PLAINTIFFS’ MOTIONS TO REMAND
finding

an

“objectively

reasonable

defendants’ removal existed. See

basis”

for

the

Martin v. Franklin

Capital Corp., 546 U.S. 132, 141 (2005).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: August 10, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

25