Burgess et al v. Corporation of Shepherdstown et al
Filing
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ORDER Granting 5 Motion to Remand and Stay. This Court finds it appropriate to remand the state claims in this case, both under 28 U.S.C. § 1367 and Burford. Accordingly, Counts I though VI of the petition are REMANDED to the Circuit Court of Jefferson County, West Virginia. Petitioners claim under 42 U.S.C. § 1983 (Count VII) is hereby STAYED pending resolution of petitionersother causes in state court. Signed by Chief Judge John Preston Bailey on 2/28/2012. Copy to Jefferson County Circuit Court along with certified copy of docket sheet. (cmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Martinsburg
DONALD R. BURGESS and
PATRICIA E. BURGESS,
Petitioners,
v.
Civil Action No. 3:11-CV-109
Judge Bailey
CORPORATION OF
SHEPHERDSTOWN, a
municipal corporation,
JIM AUXER, Mayor, in his
individual and official capacity,
and JOHN DOE I-X,
Respondents.
ORDER GRANTING MOTION TO REMAND AND STAY
Pending before this Court is petitioners’ Motion to Remand, filed January 4, 2012
(Doc. 5). The Motion has been fully briefed and is ripe for decision. In the Motion, the
petitioners seek to have this action remanded to state court, or, in the alternative, the state
law claims remanded and the remaining claims stayed. For the reasons hereinafter stated,
the Motion will be granted.
This action was filed in the Circuit Court of Jefferson County, West Virginia, on
November 7, 2011.
The action seeks various forms of relief for alleged improper
enactment and enforcement of the building code of the Corporation of Shepherdstown.
The petition contains seven counts, as follows: Count I seeks a writ of mandamus
compelling the respondents to allow the petitioners to complete renovations on property
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within the corporate boundary, to remove a section from the Codified Ordinances, and
compelling the Corporation of Shepherdstown to revoke any authority to administer a
section of the building code. Count II seeks a writ of mandamus compelling the issuance
of a building permit. Count III seeks a writ of mandamus compelling the Corporation of
Shepherdstown to issue written confirmation that the subject property is exempt from the
business license requirement. Count IV seeks a writ of mandamus compelling issuance
of a business license. Count V seeks a writ of prohibition prohibiting the Corporation of
Shepherdstown from enforcing the zoning ordinance on the basis that the same was
improperly adopted. Count VI seeks an injunction and a writ of mandamus requiring the
Corporation of Shepherdstown to prohibit the destruction or deletion of e-mails, require
disclosure of certain e-mails, and require compliance with a state law freedom of
information act request. Count VII contains a claim under 42 U.S.C. § 1983, and is the only
claim for which a jury trial is demanded.
Based upon the inclusion of a claim under § 1983, on December 14, 2011, the
respondents removed the case to this Court (Doc. 1). The petitioners now move to remand
on the basis that the § 1983 claim is “wholly dependent” on a finding in their favor on the
state law counts, that this Court should exercise its discretion and remand the state law
claims under 28 U.S.C. § 1367(c), and should abstain under Burford v. Sun Oil Co., 319
U.S. 315 (1943).
28 U.S.C. § 1367(c) provides:
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if-(1) the claim raises a novel or complex issue of State law,
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(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction,
or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
Section 1367 was enacted in 1990 to codify the holding in United Mine Workers v.
Gibbs, 383 U.S. 715 (1966). In Gibbs, the Supreme Court stated:
It has consistently been recognized that pendent jurisdiction is a doctrine of
discretion, not of plaintiff's right. Its justification lies in considerations of
judicial economy, convenience and fairness to litigants; if these are not
present a federal court should hesitate to exercise jurisdiction over state
claims, even though bound to apply state law to them, Erie R. Co. v.
Tompkins, 304 U.S. 64. Needless decisions of state law should be avoided
both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law. . . . [I]f it appears
that the state issues substantially predominate, whether in terms of proof, of
the scope of the issues raised, or of the comprehensiveness of the remedy
sought, the state claims may be dismissed without prejudice and left for
resolution to state tribunals.
383 U.S. at 726-727.
A review of the pleadings demonstrates that the state law issues clearly predominate
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over the federal § 1983 claim, which is wholly dependent upon a favorable ruling on the
state law claims. Unlike the claim in McNeese v. Bd. of Ed. for Community Unit Sch.
Dist. 187, 373 U.S. 668, 678 (1964), the federal claim in this case is “entangled in a skein
of state law that must be untangled before the federal case can proceed.”
In discussing its own cases that involve state or local zoning or land use laws, the
Fourth Circuit, in an en banc decision, stated that “[v]irtually all of these cases, when
stripped of the cloak of their federal constitutional claims, are state law cases. The federal
claims are really state law claims because it is either the zoning or land use decisions,
decisional processes, or laws that are the bases for the plaintiffs' federal claims.”
Pomponio v. Fauquier Cty. Bd. of Sup’rs, 21 F.3d 1319, 1326 (4th Cir.)(en banc), cert.
denied, 513 U.S. 870 (1994), overruled on other grounds, Quackenbush v. Allstate Ins.
Co., 517 U.S. 706 (1996).
“In determining whether a state claim predominates ... the district court, when
exercising its discretion, is invoking the abstention doctrine and must address federalism
concerns about avoiding federal overreaching into highly specialized state enforcement or
remedial schemes. See Burford v. Sun Oil Co., 319 U.S. 315, 326-34 (1943).” White v.
County of Newberry, 985 F.2d 168, 172 (4th Cir. 1993).
In Pomponio, the Fourth Circuit found these cases to be particularly amenable to
abstention under Burford (“We also have reiterated that state and local zoning and land
use law is particularly the province of the State and that federal courts should be wary of
intervening in that area in the ordinary case.”).
A federal court has discretion to abstain from exercising its jurisdiction in order to
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show deference to important state interests. Burford. Specifically, the doctrine of Burford
abstention allows a federal court to refrain from interfering with complex state regulatory
schemes where state-court review is available if a case “[1] presents difficult questions of
state law bearing on policy problems of substantial public import whose importance
transcends the result then at bar, or [2] if its adjudication in a federal forum would be
disruptive of state efforts to establish a coherent policy with respect to a matter of
substantial public concern.” Quackenbush, 517 U.S. at 726-27 (quoting New Orleans
Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. at 361). Cases involving questions
of state land use and zoning law are “classic example[s] of situations where Burford should
apply,” and “federal courts should not leave their indelible print on local and state land use
and zoning laws by entertaining these cases and . . . sitting as a zoning board of appeals.”
MLC Automotive, LLC v. Town of S. Pines, 532 F.3d 269, 282-83 (4th Cir. 2008) (quoting
Pomponio) (internal quotations omitted)). The Fourth Circuit has held that:
[I]n cases in which plaintiffs’ federal claims stem solely from construction of
state and local land use or zoning law, not involving constitutional validity of
the same and absent exceptional circumstances . . . the district courts should
abstain under the Burford doctrine to avoid interference with a State’s or
locality’s land use policy.
Id. (quoting Pomponio, 21 F.3d at 1328). There is no specific formula for applying
Burford abstention; despite the doctrine’s “many different forks and prongs, [its] central
idea has always been one of simple comity.” MLC Automotive, 532 F.3d at 280 (quoting
Johnson v. Collins Entm’t Co., 199 F.3d 710, 710 (4th Cir.1999)).
Although abstention under Burford is “almost never appropriate when a case
involves the presence of a genuine and independent federal claim,” Fourth Quarter Props.
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IV, Inc. v. City of Concord, 127 Fed.App’x 648, 654 (4th Cir. 2005) (quoting Pomponio,
21 F.3d at 1324), Burford abstention is appropriate when a Plaintiffs’ constitutional claims
are, at their core, issues of “state law in federal law clothing.” MLC Automotive, 532 F.3d
at 282 (quoting Johnson, 199 F.3d at 721 (4th Cir. 1999) (cataloging cases)).
This Court finds it appropriate to remand the state claims in this case, both under
28 U.S.C. § 1367 and Burford. Accordingly, Counts I though VI of the petition are
REMANDED to the Circuit Court of Jefferson County, West Virginia. Petitioners’ claim
under 42 U.S.C. § 1983 (Count VII) is hereby STAYED pending resolution of petitioners’
other causes in state court.
It is so ORDERED.
The Clerk of the Court is directed to provide a copy of this Order to all counsel of
record herein and to the Clerk of the Circuit Court of Jefferson County, West Virginia.
DATED: February 28, 2012.
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