Strickland et al v. Freedom Industries, Inc. et al
Filing
27
MEMORANDUM OPINION AND ORDER granting the West Virginia Department of Environmental Protection's 21 MOTION to Dismiss; directing that this action as to WVDEP is dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 5/19/2014. (cc: counsel of record) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER STRICKLAND and ANGEL STRICKLAND and
NEWTECH SYSTEMS, INC., and RACHEL BLAKENSHIP and
MICHAEL BRYANT and CHRISTIAN BRYANT and
JOHN MICHAEL BRYANT and HELEN CHRIST and
TIANA ALLEN and CHRISTOPHER ALLEN and
JOCELYN ALLEN and GARIETH ALLEN and SABRA ALLEN,
Minors, By and Through Their Parents and Next
Friends, TIANA ALLEN and CHRISTOPHER ALLEN and
ANDREA LUPSON and JON LUPSON and
Individually, and on behalf of all others
similarly situated,
Plaintiffs
v.
Civil Action No. 2:14-11009
FREEDOM INDUSTRIES, INC., and
WEST VIRGINIA DEPARTMENT
OF ENVIRONMENTAL PROTECTION and
AMERICAN WATER WORKS COMPANY, INC.,
d/b/a/ WEST VIRGINIA AMERICAN WATER COMPANY, and
EASTMAN CHEMICAL COMPANY and
CORPORATE JOHN DOES 1-6, and
INDIVIDUAL JOHN DOES 7-10,
Defendants
MEMORANDUM OPINION AND ORDER
Pending is the motion to dismiss filed April 24, 2014,
by the West Virginia Department of Environmental Protection
(“WVDEP”).
On February 24, 2014, this action was removed from the
Circuit Court of Kanawha County.
Among the claims asserted by
the plaintiffs is a negligence cause of action against the
WVDEP.
In seeking dismissal, the WVDEP asserts, inter alia,
that it is immune from suit under the Eleventh Amendment to the
United States Constitution.
The Eleventh Amendment states, “The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”
The immunity protects unwilling
states from damage suits in federal court, along with their
agents and instrumentalities.
See Regents of the Univ. of Cal.
v. Doe, 519 U.S. 425, 429 (1997); Will v. Michigan Dep't of
State Police, 491 U.S. at 70–71; Edelman v. Jordan, 415 U.S.
651, 662–63 (1974); Bland v. Roberts, 730 F.3d 368, 389-90 (4th
Cir. 2013).
It is undisputed that the WVDEP is an instrumentality
of the State of West Virginia.
from this action.
It is thus entitled to dismissal
In accordance with governing precedent,
however, the dismissal is without prejudice.
See Southern Walk
at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for . . .
any . . . defect in subject matter jurisdiction must be one
without prejudice, because a court that lacks jurisdiction has
no power to adjudicate and dispose of a claim on the merits.”).
2
It is, accordingly, ORDERED that the motion to dismiss
be, and hereby is, granted, and that this action as to WVDEP be,
and hereby is, dismissed without prejudice.1
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record.
DATED:
May 19, 2014
John T. Copenhaver, Jr.
United States District Judge
1
It is noted that the circumstances in this case are unlike
those in Lapides v. Board of Regents of University System of
Georgia, 535 U.S. 613, 624 (2002) (“We conclude that the State's
action joining the removing of this case to federal court waived
its Eleventh Amendment immunity . . . .). WVDEP asserts it was
not served with the notice of removal. It thus could not have
joined therein.
3
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