Hunter v. Riley et al

Filing 45

MEMORANDUM OPINION AND ORDER denying plaintiff's 34 Objection to the 27 Proposed Findings and Recommendation and Objection to the court's 33 memorandum opinion and order adopting the PF&R and motion to vacate the memorandum opinion and order. Signed by Judge John T. Copenhaver, Jr. on 7/10/2017. (cc: petitioner; counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CHASE CARMEN HUNTER,
Plaintiff,
v.

Civil Action No. 2:15-5508

MICHAEL D. RILEY, individually and
in his official capacity as Commissioner
of Insurance for West Virginia, and in
his official capacity as a Committee
Member of the National Association of
Insurance Commissioners; and THE WEST
VIRGINIA OFFICES OF INSURANCE COMMISSIONER,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff’s late-filed objection to the
Proposed Findings and Recommendation (“PF&R”) of United States
Magistrate Judge Dwane L. Tinsley and her objection to the court’s
memorandum opinion and order adopting the PF&R and motion to vacate
the memorandum opinion and order, filed September 30, 2016.
Plaintiff filed this case on April 20, 2015 against the
Commissioner of Insurance for West Virginia, Michael D. Riley, in
his individual and official capacity and against the West Virginia
Offices of the Insurance Commissioner.

She alleges that her

non-resident West Virginia insurance license was improperly revoked
after her licenses were revoked in Texas and Florida.

She seeks a

declaratory judgment declaring that her West Virginia license is
active and valid and an order permanently enjoining defendants from
violating state and federal law.
Defendants filed a motion to dismiss on September 18, 2015
arguing that the case should be dismissed for three reasons: (1) that
plaintiff has failed to state a claim upon which relief can be granted
under Rule 12(b)(6); (2) that the Eleventh Amendment bars a lawsuit
against defendants; and (3) that the court should abstain from
jurisdiction under the Younger abstention doctrine in light of
ongoing state proceedings.

Def. Memo. in Supp. of Mot. to Dismiss

at 4, 5, 6.
On August 9, 2016, Magistrate Judge Tinsley filed a PF&R
recommending that the motion to dismiss for failure to state a claim
under Rule 12(b)(6) should be denied because plaintiff states a
potentially cognizable Fourteenth Amendment due process claim due
to actions relating to the status of plaintiff’s West Virginia
insurance license.

PF&R at 8.

The magistrate judge further

recommended that the West Virginia Office of Insurance Commissioner
is absolutely immune from suit under the Eleventh Amendment, and
should be dismissed from this action.

Id. at 10.

With respect to

defendant Michael Riley, because plaintiff seeks, in part,
prospective injunctive relief “to permanently enjoin [the
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defendants] from violating the state and federal laws, constitutions
and human rights described” in the complaint, the magistrate judge
recommended that Riley is a proper defendant under the Ex parte Young
exception to Eleventh Amendment immunity, and therefore his
dismissal under the Eleventh Amendment immunity is not appropriate.
Pl. Compl. at 14; PF&R at 10.

The magistrate judge found the record

to be “insufficient for the court to determine whether there are
ongoing state proceedings of important state interest in which the
plaintiff’s claim raised herein could be addressed.”

PF&R at 14.

On August 26, 2016, the date objections to the PF&R were
due, plaintiff filed a motion for an extension of sixty days to file
her objections.

The court granted that request in part, giving her

until September 15, 2016, which was twenty days from the date of her
motion, to file objections with the court.

On September 30, 2016,

when plaintiff failed to object, the court entered an order adopting
the findings in the PF&R, which dismissed the claims against the West
Virginia Insurance Commissioner with prejudice, denied the motion
to dismiss with respect to Michael Riley, and recommitted the matter
to Judge Tinsley to allow development of the record concerning the
status of the administrative hearing so that the Younger abstention
issue could be resolved accordingly.
That same day, plaintiff filed this motion alleging that
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the court should have given her the 60-day extension that she
requested and listed her objections to the PF&R.
On October 29, 2016, before the court ruled on plaintiff’s
motion, plaintiff filed a notice of appeal of the court’s September
30, 2016 order with the United States Court of Appeals for the Fourth
Circuit.

On April 27, 2017, the Fourth Circuit dismissed

plaintiff’s appeal, finding that the order plaintiff was appealing
“was not a final order nor an appealable interlocutory or collateral
order.”
2017.

See ECF Doc. No. 41 at 2.

The mandate followed on May 19,

On March 14, 2017, Michael Riley filed a renewed motion to

dismiss, providing more detail as to why the case should be dismissed
on Younger grounds.
The court has reviewed plaintiff’s late objections to the
PF&R and has determined that they pertain only to the claims that
remain against Michel Riley and whether the Younger abstention
doctrine precludes plaintiff’s claims in this case.

Inasmuch as the

court’s order only dismissed plaintiff’s claims against the West
Virginia Insurance Commission on the grounds that the 11th Amendment
barred suit against it, and deferred ruling on the motion to dismiss
against Michael Riley on Younger grounds until the record could be
fully developed, these objections are not proper at this time.
Plaintiff has not responded as to why Younger does not apply to this
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a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
Defendants.
ORDER AND NOTICE
case as set forth in the renewed motion to dismiss filed by Michael
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
Riley on March 14, 2017.
following dates are hereby fixed as the time by or on which
certain events must occur:
Accordingly, under F.R. Civ. P. 12(b), together with and
01/28/2016
Motions the objection to the Proposed Findings
supporting briefs, memoranda, affidavits, or other
Recommendation such matter in support thereof. (All motions
(“PF&R”) and objection to the court’s memorandum
unsupported by memoranda will be denied without
opinion and order adopting the PF&R and motion P. 7.1 (a)).
prejudice pursuant to L.R. Civ. to vacate the
02/08/2016
Last day for Rule 26(f) meeting.
memorandum opinion and order, filed September 30, 2016, be, and
02/15/2016
Last
hereby is, denied. day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
02/22/2016
Scheduling conference this matter at the Robert C.
It is further ordered that at 4:30 p.m.be, and it hereby
Byrd United States Courthouse in Charleston, before
is, recommittedthe United States unless canceled. Dwane L. Tinsley.
to undersigned, Magistrate Judge Lead counsel
directed to appear.
02/29/2016
Entry of scheduling forward copies of this written
The Clerk is directed to order.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
opinion and order to all counsel of record and the United States
Magistrate The Clerk is requested to transmit this Order and
Judge.
Notice to all counsel of record and to any unrepresented
parties.
DATED: July 10, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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