Burgess et al v. Corporation of Shepherdstown et al

Filing 16

ORDER DISMISSING CASE: granting 13 Motion to Dismiss. The Petitioners' §1983 claim (Count VII) is hereby DISMISSED WITH PREJUDICE. There being nothing further for the Court to consider, this case is hereby DISMISSED. Signed by District Judge Gina M. Groh on 12/21/2012. (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 GROH)

CORPORATION OF
SHEPHERDSTOWN, a municipal
corporation; JIM AUXER; Mayor,
in both his individual and official
capacities; and JOHN DOE I-X,
Respondents.

ORDER DISMISSING CASE
Pending before this Court is the Respondents’ Motion to Dismiss [Doc. 13], filed
October 2, 2012. This motion has been fully briefed and is ripe for adjudication. Having
reviewed and considered the arguments of the parties, the Court concludes that the
Respondents’ Motion must be GRANTED, and that this case must be DISMISSED.
BACKGROUND
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. Count I seeks a writ of mandamus compelling the
Respondents to permit the Petitioners to complete renovations on property within the
corporate boundary, to remove a section from the Codified Ordinances, and 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 the §1983 claim, the Respondents removed the case
to this Court on December 14, 2011 [Doc. 1]. On February 28, 2012, this Court, invoking
the doctrine of Burford abstention, remanded Counts I - VI to the Circuit Court of Jefferson
County, West Virginia [Doc. 10]. See Burford v. Sun Oil Co., 319 U.S. 315 (1943).
Specifically, this Court found that state law issues clearly predominate over the §1983
claim, which is wholly dependent upon a favorable ruling on the state law claims. See Doc.
10 at 4.
In accordance with this Court’s Order, the Circuit Court of Jefferson County, West
Virginia conducted an evidentiary hearing on the Petitioners’ state claims on June 15, 2012,
and June 22, 2012. At the close of evidence and argument, the Circuit Court denied the
relief requested and dismissed, with prejudice, Counts I - IV of the Petition. On August 9,
2012, the Petitioners filed a motion for a new trial, which was denied by the Circuit Court

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on September 18, 2012.
The Respondents now move to dismiss the remaining §1983 claim.
DISCUSSION
I.

Jurisdiction
This matter was removed to this Court on the basis of the Petitioners’ claim under

42 U.S.C. §1983, which unquestionably “aris[es] under the Constitution, laws, or treaties
of the United States.” 28 U.S.C. §1331.
Generally speaking, “federal courts have a strict duty to exercise the jurisdiction that
is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
716 (1996). However, “federal courts may decline to exercise their jurisdiction . . . where
denying a federal forum would clearly serve an important countervailing interest,” such as
where abstention is warranted by consideration of “proper constitutional adjudication,”
“regard for federal-state relations,” or “wise judicial administration.” Id. (citing Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)).
Pursuant to the doctrine of Burford abstention, a federal district court may, in its
discretion, decline to exercise its jurisdiction in certain circumstances if abstention is
necessary to show proper regard for a state government’s domestic policy. See Burford
v. Sun Oil Co., 319 U.S. 315 (1943); Alabama Public Service Commission v. Southern
Railway Co., 341 U.S. 341 (1951). Pursuant to the Burford doctrine, in cases where the
relief being sought is equitable in nature or otherwise discretionary, federal courts not only
have the power to stay the action based on abstention principles, but can also, in otherwise
appropriate circumstances, decline to exercise jurisdiction altogether by either dismissing

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the suit or remanding it to state court. Quackenbush, 517 U.S. at 721. By contrast,
actions for damages may be stayed, but may not be dismissed outright. Id.
State and local zoning and land use law is particularly the province of the State, and
for that reason, federal courts should be wary of intervening in that area in the ordinary
case. Pomponio v. Fauquier County Board of Supervisors, 21 F.3d 1319, 1327 (4th
Cir. 1994) (en banc), overruled in part on other grounds by Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 728-31 (1996). Therefore, “absent unusual circumstances, a district
court should abstain under the Burford doctrine from exercising its jurisdiction in cases
arising solely out of state or local zoning and land use law, despite attempts to disguise the
issues as federal claims.” Id. See also MLC Automotive, LLC v. Town of Southern
Pines, 532 F.3d 269, 282-83 (4th Cir. 2008) (“‘in cases in which plaintiffs’ federal claims
stem solely from construction of state or local zoning law, not involving the constitutional
validity of the same and absent exceptional circumstances . . . the district courts should
abstain under the Burford doctrine to avoid interference with the State’s or locality’s land
use policy’ . . . we have consistently found Burford abstention appropriate when the claim
is really ‘state law in federal law clothing.’”) (citing Pomponio, supra, at 1328; Johnson v.
Collins Entertainment Co., 199 F.3d 710, 721 (4th Cir. 1999)).
II.

Analysis
The Respondents argue that now that the state court has dismissed Counts I - VI

of the Petition, the Petitioners’ remaining §1983 claim should be dismissed, as well,
inasmuch as it was wholly dependent upon a favorable ruling on the state law claims for
its viability.

The Respondents assert that principles of collateral estoppel prohibit

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relitigating issues which were raised and litigated in the state court proceeding, warranting
dismissal of the Petitioners’ §1983 claim.
The Petitioners argue, first, that collateral estoppel is not applicable to this case
because the Petitioners have not filed a new case after receiving a judgment in a prior
case, which is the procedural situation to which preclusion rules would apply. The Court
finds this argument unpersuasive. The Petitioners’ §1983 claim is completely premised on
the Petitioners’ six state law claims. In Count VII of their Petition, the Petitioners allege that
“[p]ursuant to the Fifth and Fourteenth Amendments to the Constitution of the United
States, the Petitioners are entitled to due process before they can be deprived of
their . . . property interests, which due process they have been denied.” However, the
extent of the Petitioners’ property interests was determined by the state court, which
dismissed the Petitioners’ claims. Without a finding in the Petitioners’ favor on the issue
of property interests, the Petitioners cannot prevail on their federal due process claim.
There is simply no way for the Court to decide these matters without relitigating issues
already decided by the state court.
“The federal courts have traditionally adhered to the related doctrines of res judicata
and collateral estoppel.” Allen v. McCurry, 449 U.S. 90, 94 (1980). “Under res judicata,
a final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Id. (citing Cromwell
v. County of Sac, 94 U.S. 351, 352 (1876)). “Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its judgment, that decision may preclude
relitigation of the issue in a suit on a different cause of action involving a party to the first

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case.” Id. (citing Montana v. United States, 440 U.S. 147, 153 (1979)). “The federal
courts generally have also consistently accorded preclusive effect to issues decided by
state courts.” Id. (citing Montana v. United States, supra; Angel v. Bullington, 330 U.S.
183 (1947)). “Thus, res judicata and collateral estoppel not only reduce unnecessary
litigation and foster reliance on adjudication, but also promote the comity between state and
federal courts that has been recognized as a bulwark of the federal system.” Id. (citing
Younger v. Harris, 401 U.S. 37, 43-45 (1971)). Moreover, “Congress has specifically
required all federal courts to give preclusive effect to state court judgments whenever the
courts of the State from which the judgments emerged would do so.” Id. See 28 U.S.C.
§1738 (“[J]udicial proceedings [of any court of any State] shall have the same full faith and
credit in every court within the United States and its Territories and Possessions as they
have by law or usage in the courts of such State . . . .”).
“[N]othing in the language or legislative history of §1983 proves any congressional
intent to deny binding effect to a state-court judgment or decision when the state court,
acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate
federal claims, and thereby has shown itself willing and able to protect federal rights.”
Allen, 449 U.S. at 103-04. “There is, in short, no reason to believe that Congress intended
to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue
already decided in state court simply because the issue arose in a state proceeding . . . .”
Id. at 104. Therefore, the Court rejects the Petitioners’ argument that collateral estoppel
does not apply to this case.
The Petitioners next argue, citing Jordache Enterprises, Inc. v. National Union

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Fire Ins. Co. of Pittsburgh, PA, 513 S.E.2d 692 (W. Va. 1998), and Strahan v. Rowley,
2012 WL 1114350 (D. Mass. March 31, 2012), that the Court should continue the stay in
this matter pending the outcome of the Petitioners’ state court appeal, which is currently
pending before the Supreme Court of Appeals of West Virginia.
The Respondents argue that under West Virginia law, the Circuit Court’s order is a
final order for collateral estoppel purposes, and that the Court may therefore enter
judgment now against the Petitioners on their §1983 claim.
In parallel state-federal litigation, “[d]isposition of the federal action, once the statecourt adjudication is complete, [is] governed by preclusion law.” Exxon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U.S. 280, 282 (2005). Pursuant to 28 U.S.C. §1738,
a federal court must give the same preclusive effect to a state court judgment that another
court in that particular state would give it. Hence, this Court must look to the preclusion law
of West Virginia in order to determine the preclusive effect of the Circuit Court’s judgment.
In Jordache, the Supreme Court of Appeals of West Virginia considered what
preclusive effect to give to a New York State judgment in West Virginia’s courts. Reviewing
both West Virginia and New York law on the issue of whether or not a judgment under
appeal is final for res judicata or collateral estoppel purposes, the Court observed that
“[a]lthough this Court has never expressly held that a judgment pending appeal is not final
for res judicata and collateral estoppel purposes, it intimated as much in Flannagan v.
Gregory & Poole, Inc., 67 S.E.2d 865 (1951).”1 The Court did not need to take the West
1

In Flannagan, a defendant asserted that plaintiffs were estopped from bringing an action
where the plaintiffs had recovered in a first action which was still pending on a writ of error.
The Supreme Court of Appeals of West Virginia noted that if the first action was pending
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Virginia analysis any further, however, because it was evaluating the preclusive effect of
a New York judgment in a West Virginia court, and was thus obligated to determine what
the preclusive effect of that New York judgment would be in other New York courts.
Jordache, 513 S.E.2d at 703. Applying New York law, the West Virginia high court
determined that “[t]he rule in New York, unlike that in other jurisdictions, is that the mere
pendency of an appeal does not prevent the use of the challenged judgment as the basis
of collaterally estopping a party to that judgment in a second proceeding.” Id. at 704 (citing
Matter of Amica Mut. Ins. Co., 85 A.D.2d 727, 728 (1981)). Compare Jordache with
Caperton v. A.T. Massey Coal Co., Inc., 679 S.E.2d 223, 257 (W. Va. 2008), reversed
on other grounds, 556 U.S. 868 (2009) (applying Virginia law and determining that pursuant
thereto, “a judgment is not final for the purposes of res judicata . . . when it is being
appealed or when the time limits fixed for perfecting the appeal have not expired.”) (citing
Faison v. Hudson, 417 S.E.2d 302, 305 (Va. 1992)). Therefore, the West Virginia
Supreme Court’s speculation in Jordache as to finality of West Virginia judgments for res
judicata and collateral estoppel purposes was merely dicta.
In State ex rel. Richey v. Hill, 603 S.E.2d 177 (W. Va. 2004), decided six years
after Jordache, the West Virginia Supreme Court of Appeals held at Syllabus Point 4 that:
An adjudication by a court having jurisdiction of the subjectmatter and the parties is final and conclusive, not only as to the
matters actually determined, but as to every other matter which
the parties might have litigated as incident thereto and coming
within the legitimate purview of the subject-matter of the
action. It is not essential that the matter should have been

on a writ of error, “the judgment in the first action has no finality and would not estop
plaintiffs.” Flannagan, 67 S.E.2d at 873.
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formally put in issue in a former suit, but it is sufficient that the
status of the suit was such that the parties might have had the
matter disposed of on its merits. An erroneous ruling of the
court will not prevent the matter from being res judicata.
Richey at Syl. Pt. 4 (citing Syl. Pt. 1, Sayre’s Adm’r v. Harpold, 11 S.E. 16 (W. Va. 1890);
Syl. Pt. 1, In re McIntosh’s Estate, 109 S.E.2d 153 (W. Va. 1959); Syl. Pt. 1, State ex rel.
West Virginia Department of Health & Human Resources v. Cline, 406 S.E.2d 749 (W.
Va. 1991)). This holding compels the opposite conclusion from the dicta in Jordache: that
a West Virginia trial court decision pending appeal is nevertheless a final judgment for res
judicata and collateral estoppel purposes.
Such being the case, the Court finds that the Petitioners’ remaining §1983 claim
must be DISMISSED at this time. All of the underlying state law claims on which the
Petitioners’ §1983 claim is premised have been dismissed with prejudice by a state court
having jurisdiction of both the subject matter and the parties.
CONCLUSION
For the foregoing reasons, the Respondents’ Motion to Dismiss [Doc. 13] is
GRANTED.

The Petitioners’ §1983 claim (Count VII) is hereby DISMISSED WITH

PREJUDICE. There being nothing further for the Court to consider, this case is hereby
DISMISSED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and/or
pro se parties.

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DATED: December 21, 2012

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