Redd v. McDowell County Board of Education

Filing 22

MEMORANDUM OPINION AND ORDER: The Court OVERRULES Plaintiff's objections and ADOPTS the 19 Proposed Findings and Recommendation of Magistrate Judge R. Clarke VanDervort. Plaintiff's 16 MOTION to Remand is DENIED. Defendants' 3 an d 5 MOTIONS to Dismiss are GRANTED as to Plaintiff's claims alleging favoritism, retaliation, race discrimination, sex discrimination, and violation of Title VI, Title VII, Title IX, and West Virginia Code Sections 5-11-9 and 5-11-20. The Moti ons to Dismiss are DENIED in all other respects. This case is REMANDED to the Circuit Court of McDowell County, West Virginia based upon the Court's decision to decline to exercise its supplemental jurisdiction. The Clerk is further directed to remove this action from the active docket of this Court. Signed by Senior Judge David A. Faber on 9/30/2013. (cc: Plaintiff, Pro Se; counsel of record and Clerk, McDowell County Circuit Court) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
BONITA K. REDD,
Plaintiff,
v.

CIVIL ACTION No. 1:13-2015

MCDOWELL COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge VanDervort submitted to

the court his Proposed Findings and Recommendations ("PF&R) on
August 20, 2013, in which he recommended that the court (1) grant
in part and deny in part plaintiff’s motion to remand; and (2)
grant in part and deny in part defendants’ motions to dismiss.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days plus three mailing days
in which to file any objections to Magistrate Judge VanDervort's
Findings and Recommendations.

The failure of any party to file

such objections within the time allowed constitutes a waiver of
such party's right to a de novo review by this court.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Snyder v.

On September 6, 2013,

plaintiff filed her objections to the Proposed Findings and
Recommendation.
Background
On January 28, 2013, plaintiff, acting pro se, filed a
complaint in the Circuit Court of McDowell County.

Named as

defendants are the McDowell County Board of Education and the
West Virginia Department of Education.

Plaintiff alleges that

defendants have engaged in “racial and sex discrimination” in
violation of “federal, state, and local laws and statutes.”
Complaint.

See

Plaintiff goes on to list 28 different federal,

state, and local laws, statutes, regulations, and policies which
she contends that defendants have violated, including Title VI,
Title VII, and Title IX.
Based upon the federal questions presented in plaintiff’s
complaint, on February 5, 2013, defendants removed the case to
this court.

Thereafter, plaintiff moved to remand the case to

state court while defendants filed a motion to dismiss for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).
Finding that the court possessed federal question
jurisdiction based upon the assertion of the aforementioned
federal causes of action, Magistrate Judge VanDervort recommended
that the district court deny plaintiff’s motion to remand.

The

magistrate judge further recommended that the court grant
defendants’ motion to dismiss plaintiff’s claims alleging race
and sex discrimination, including violations of Title VI, Title
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VII, Title IX, and West Virginia Code § 5-11-9, on the grounds
that plaintiff's complaint does not meet the threshold pleading
standards set out by the Supreme Court in Bell Atlantic Corp. v.
Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Magistrate Judge VanDervort recommended dismissal of the

favoritism and retaliation claims for the same reason.

In

addition, the PF&R recommended dismissal of plaintiff’s claim
under West Virginia Code § 5-11-20 because only the attorney
general may bring a civil action pursuant to that statute.

With

respect to plaintiff’s remaining claims, the magistrate judge
recommended that the court decline to exercise its supplemental
jurisdiction over those claims and remand the case to state
court.
Analysis
A.

Objections to Exercise of Federal Jurisdiction
Plaintiff’s objections are largely repetitive and

essentially demonstrate a failure to grasp the fundamental
principles of federal question jurisdiction.

Objections One and

Three argue that this court is required to remand plaintiff’s
case to state court based upon defendants’ alleged violation of
McDowell Policy 8-001, a county policy.

See Plaintiff’s

Objections at p. 1 (arguing that the magistrate judge “should
have remanded to state court on McDowell County Policy
8-001, given that it is a county policy”).

Objection Five finds

fault with the court’s exercise of supplemental jurisdiction.
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Objection Twelve contends that “at least thirty-two legal
actions” against defendants have not been removed to federal
court since Iqbal, see id. at p. 6, and that this somehow
mandates remand to state court.
Without disputing that her complaint asserts several
federal causes of action, plaintiff appears to contend that
because it also contains state law claims, the whole case should
be remanded to state court.

This argument fails because the fact

that a state court has concurrent jurisdiction over a cause of
action does not require that the action be remanded from federal
court back to state court.

See Callison v. Charleston Area Med.

Ctr., Inc., 909 F. Supp. 391, 394 (S.D.W. Va. 1995) (“The
existence of concurrent jurisdiction does not require remand.”);
see also McWilliams v. Metropolitan Life Ins. Co., No. 98-1732,
1999 WL 64275, at *2 n. 1 (4th Cir. Feb. 11, 1999) (“[T]his court
has consistently held that concurrent jurisdiction does not
defeat a defendant's right to removal.”); Hupp v. First Care
Services, Inc., No. Civ. A. 6:05CV00732, 2005 WL 2654231, *2
(S.D.W. Va. Oct. 17, 2005) (“The mere fact that this court could
have concurrent jurisdiction with the state court . . . does not
require remand.”).

“Plaintiff may not simply rely upon

concurrent jurisdiction, but must show an absence of any basis
for subject-matter jurisdiction to accomplish remand once a case
has been properly brought in this court.”

Moody-Williams v.

Liposcience, No. 5:12-CV-104-FL, 2013 WL 1246752, *2 (E.D.N.C.
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Mar. 26, 2013).

Thus, this asserted ground for remand is without

merit.
As to plaintiff’s argument that this court is without
jurisdiction to decide her state law claims, that argument is
also without merit.

Plaintiff clearly alleged claims invoking

federal question jurisdiction and supplemental jurisdiction over
her state law claims was proper because those claims “are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy.”

28 U.S.C.

§ 1367(a); Crosby v. City of Gastonia, 635 F.3d 634, 644 (4th
Cir. 2011).
Furthermore, to the extent plaintiff argues that remand
is required because state law issues predominate her case, that
argument fails.

This court is not permitted to decline

jurisdiction over federal claims “on the grounds that there are
more state statutes at issue than federal ones.”

Benas v. Shea

Mortgage, Inc., No. 11cv1461-IEG (BGS), 2011 WL 4635645, *2 (S.D.
Cal. Oct. 4, 2011); see also Johnson v. Medisys Health Network,
No. 10-CV-1596 (ERK)(WP), 2011 WL 5222917, *4 (E.D.N.Y. Jun. 1,
2011) (ratio of state to federal claims is not determinative of
whether to exercise supplemental jurisdiction).
Finally, plaintiff’s allegation that Magistrate Judge
VanDervort “omitted McDowell County Policy 8-001" is incorrect.
Magistrate Judge VanDervort found that she had failed to state a
claim for race discrimination.

See PF&R at p. 16.
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Plaintiff

concedes that the McDowell County Policy is grounded in Title VI
and VII.

In dismissing the federal and state law claims for race

discrimination, the magistrate judge correctly concluded that
defendant’s allegations of race discrimination were “conclusory
and speculative” and did not satisfy federal pleading standards.
Based on the foregoing, plaintiff’s objections to the
recommended denial of her remand motion are OVERRULED.
B.

Objections to Dismissal Pursuant to Fed. R. Civ. P.
12(b)(6)
In her objections numbered Two, Four, Six, Seven, Eight,

Nine, Ten, and Eleven, plaintiff contends that Magistrate Judge
VanDervort erred in concluding that her complaint failed to
satisfy the pleading standards and contained insufficient factual
allegations to state a plausible claim to survive a motion to
dismiss under Rule 12(b)(6) under Twombly and Iqbal.

According

to plaintiff, because the court was able to determine that
federal question jurisdiction was present in denying her remand
motion, dismissal for failure to satisfy Twombly and Iqbal was
inappropriate.
Plaintiff misapprehends the nature of the “well-pleaded
complaint” rule and Magistrate Judge VanDervort’s use of the term
in his PF&R.

“The presence or absence of a federal question is

determined by the well-pleaded complaint rule.”
v. Williams, 482 U.S. 386, 392 (1987).

Caterpillar Inc.

Under the “well-pleaded

complaint” rule, the plaintiff is the master of his or her

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complaint, and a plaintiff may “avoid federal jurisdiction by
exclusive reliance on state law.”
F.3d 1156, 1165 (4th Cir. 1996).

Id.; Custer v. Sweeney, 89
“[T]he well-pleaded complaint

rule ordinarily directs us to look no further than the
plaintiff’s complaint in determining whether a lawsuit raises
issues of federal law capable of creating federal-question
jurisdiction under 28 U.S.C. 1331.”

Custer, 89 F.3d at 1165

(internal quotations omitted).
However, a court’s reliance on the well-pleaded complaint
rule to determine whether federal question jurisdiction appears
on the face of the complaint is not a stamp of approval by the
court as to the sufficiency of that complaint.

“The well pleaded

complaint rule is, in this context, a term of art.

It speaks not

to a presumption of proper form or of merit but to a presumption
that a plaintiff is master of the claim.”

Virgilio v. Motorola,

Inc., 307 F. Supp.2d 504, 512 (S.D.N.Y. 2004) (internal citations
and quotations omitted).

Indeed, it is not unusual for a court

to determine that it has jurisdiction over a complaint and then
turn around and dismiss that same complaint as deficient pursuant
to Twombly and Iqbal.

See, e.g., Rockwood Retaining Walls, Inc.

V. Patterson, Thuente, Skaar & Christensen, P.A., Civil No. 092493 (DWF/FLN), 2009 WL 5185770, *6-7 (D. Minn. Dec. 22, 2009)
(“Plaintiff’s current motion to remand must be denied because the
Amended Complaint – although not adequate to meet the
requirements of Twombly and Iqbal – plainly discloses a legal
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malpractice claim that will require . . . resolution of
substantial questions of federal patent law.”).

Accordingly,

plaintiff’s objections on this point are OVERRULED.
For the reasons set forth above, the court OVERRULES
plaintiff’s objections and adopts Magistrate Judge VanDervort’s
findings and recommendation.
DENIED.

Plaintiff’s motion to remand is

Defendants’ motion to dismiss is GRANTED as to

plaintiff’s claims alleging favoritism, retaliation, race
discrimination, sex discrimination, and violation of Title VI,
Title VII, Title IX, and West Virginia Code §§ 5-11-9 and 5-1120.

The motion to dismiss is DENIED in all other respects.

Having dismissed all of plaintiff's federal claims, the court
declines to exercise supplemental jurisdiction over plaintiff's
remaining state law claims.

The court remands the case to state

court pursuant to 28 U.S.C. § 1367(c)(3).*

See 28 U.S.C. §

1367(c)(3) (providing that a district court may decline to
exercise supplemental jurisdiction over a claim if “the district
court has dismissed all claims over which it has original
*

Magistrate Judge VanDervort recommended that plaintiff’s
remand motion be granted as to certain claims. The court wishes
to make clear that its decision to remand is not based upon any
jurisdictional defect but, rather, upon its decision to decline
to exercise its supplemental jurisdiction. Carlsbad Tech., Inc.
V. HIF Bio., Inc., 556 U.S. 635, 639-40 (2009) (“Upon dismissal
of the federal claim, the District Court retained its statutory
supplemental jurisdiction over the state-law claims. Its
decision declining to exercise that statutory authority was not
based on a jurisdictional defect but on its discretionary choice
not to hear the claims despite its subject-matter jurisdiction
over them.”).
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jurisdiction”).

Accordingly, this case is REMANDED to the

Circuit Court of McDowell County, West Virginia.
The Clerk is directed to forward a copy of this Order to
counsel of record, plaintiff, and to the Clerk of the Circuit
Court of McDowell County.

The Clerk is further directed to

remove this action from the active docket of this court.
IT IS SO ORDERED this 30th day of September, 2013.
ENTER

David A. Faber
Senior United States District Judge

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