Baisden v. Boone County Assessor's Office et al
MEMORANDUM OPINION AND ORDER granting the plaintiff's 6 MOTION to Remand to the extent that the case shall be remanded to the Circuit Court of Boone County, West Virginia; further directing that plaintiff's motion is denied as to the request for fees and costs associated with this remand. Signed by Judge John T. Copenhaver, Jr. on 10/26/2017. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action no. 2:17-cv-3965
BOONE COUNTY ASSESSOR’S OFFICE,
and SCOTTY D. COOK,
MEMORANDUM OPINION AND ORDER
Pending before the court plaintiff’s Motion to Remand
the case filed October 2, 2017.
Plaintiff further requests an
award of attorney’s fees and costs associated with the remand.
This case was originally filed in the Circuit Court
for Boone County, West Virginia, on August 18, 2017.
made a timely removal to this court by notice on September 11,
This removal was made pursuant to 28 U.S.C. § 1331, which
provides that “district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.”
Defendants represented that
plaintiff’s complaint included claims for “wrongful termination
for political purposes, violation of her First and Fourteenth
Amendment rights, and failure to pay timely wages in violation
of the West Virginia Wage Payment and Collection Act.”
Therefore, defendants argue, removal is proper because the
action “arises under the laws of the United States, i.e., the
United States Constitution, 42 U.S.C. [§] 1983, and [the claims]
are not claims that have been made nonremovable by statute.”
Plaintiff’s motion maintains that removal of this
action was improper because the complaint asserts no claim under
Plaintiff’s complaint brings two counts: (I)
wrongful termination in violation of the public policy of West
Virginia and (II) violation of the West Virginia Wage Payment
and Collection Act.
While the factual background of the
complaint states that plaintiff’s termination was “politically
motivated and violated plaintiff’s First and Fourteenth
Amendment Rights,” Count I asserts that “defendants violated the
public policy of the State of West Virginia as established by
the United States Constitution . . . .”
At issue for remand is whether Count I of the
complaint “aris[es] under the Constitution” for purposes of 28
U.S.C. § 1331.
Though the parties offer differing analysis,
both plaintiff’s motion and defendants’ response1 agree that
remand is appropriate in this action for lack of a federal
Plaintiff states that Count I is brought pursuant to
Harless v. First Nat. Bank in Fairmont, 162 W. Va. 116 (1978),
which held that an employer’s right to discharge an at will
employee is “tempered by the principle that where the employer’s
motivation for the discharge is to contravene some substantial
public policy principle, then the employer may be liable to the
employee for damages occasioned by the discharge.”
Id. at 124.
The sources of West Virginia public policy can include “our
federal and state constitutions, our public statutes, our
judicial decisions, the applicable principles of common law,
[and] the acknowledged prevailing concepts of the federal and
state governments relating to and affecting the safety, health,
morals and general welfare of the people.”
Brown v. Genesis
Healthcare Corp., 228 W. Va. 646, 684 (2011) (citing Cordle v.
General High Mercer Corp., 174 W. Va. 321, 325 (1984)).
such, in Adkins v. Miller, 187 W. Va. 774 (1992), the Supreme
Court of Appeals of West Virginia held that the First Amendment
to the United States Constitution and article III, section 7 of
Plaintiff’s counsel advised the court by telephone that Ms.
Baisden would not be filing a Reply to defendants’ response on
the West Virginia Constitution “extend a protection to
governmental employees to be free from employment decisions made
solely for political reasons.”
Id. at 780.
Supreme Court of Appeals of West Virginia concluded that W. Va.
Code § 7-7-7(h), which allows county officials to discharge
their employees, may not be interpreted as permitting a
governmental employer to make employment decisions based solely
upon political reasons, unless employees hold certain types of
Plaintiff contends the reference to the United
States Constitution in her complaint simply sets forth one of
the bases for the West Virginia public policy, and that this
does not invoke federal jurisdiction.
See Davis v. Cabela’s,
Inc., No. 5:07CV88, 2008 U.S. Dist. LEXIS 4081 (N.D.W.V. Jan.
18, 2008) (“[I]t is the role of the West Virginia courts to
determine whether [a claim for wrongful discharge based on
employee’s exercise of personal or family leave] falls within
the contours of a clearly recognizable public policy . . . .”).
Defendants disagree with plaintiff’s analysis, but
concede that remand is proper where, as here, a plaintiff’s
particular claim can be resolved on theories of state law
without proving a theory of federal law, the claim “does not
necessarily depend on a question of federal law,”
‘arise under’ federal law for purposes of § 1331.”
and “does not
Coburg Dairy, Inc., 369 F.3d 811, 817-18 (4th Cir. 2004) (“[I]f
the plaintiff can support his claim with even one theory that
does not call for an interpretation of federal law, his claim
does not arise under federal law for purposes of § 1331.”).
The court agrees with the parties’ conclusion that it
does not have subject matter jurisdiction over this controversy.
Attorney’s Fees and Costs
Plaintiff requests the award of fees and costs
associated with this motion under 28 U.S.C. § 1447(c), which
states in pertinent part: “An order remanding the case may
require payment of just costs and any actual expenses, including
attorney’s fees, incurred as a result of the removal.”
“[C]ourts may award attorney’s fees under § 1447(c) only where
the removing party lacked an objectively reasonable basis for
Conversely, when an objectively reasonable
basis exists, fees should be denied.”
Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005).
Plaintiff asserts there was no objectively reasonable
basis for removal because using federal law to establish a
violation of the public policy of West Virginia does not invoke
A series of unreported cases from the
West Virginia district courts support this notion.
See Davis v.
Cabela’s, Inc., No. 5:07CV88, 2008 U.S. Dist. LEXIS 4081
(N.D.W.V. Jan. 18, 2008); Groves v. Superior Well Servs., No.
1:10CV149, 2010 U.S. Dist. LEXIS 135163 (N.D.W.V. Dec. 21,
2010); Slack v. Charleston Area Med. Ctr., Inc., No. 2:14-cv27055, 2015 U.S. Dist. LEXIS 72138 (S.D.W.V. June 4, 2015).
Plaintiff disclosed these cases to defendants’ counsel prior to
filing this motion and requested a voluntary remand.
Defendants argue that the complaint’s express
references to the Constitution made it objectively reasonable
for them to believe the cause of action “depend[ed] on a
resolution of a federal question sufficiently substantial to
arise under federal law within the meaning of 28 U.S.C. § 1331.”
Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (1996).
the complaint alleges that plaintiff’s termination was
“politically motivated and violated plaintiff’s First and
Fourteenth Amendment rights,” but it is now clear that she is
not asserting a separate cause of action on that ground.
Accordingly, defendants ultimately came to agree that remand is
proper in this case because Count I of plaintiff’s complaint
“does not exclusively rely on a federal question.”
Pls.’ Mot. Dismiss at 3 (citing Dixon, 369 F.3d at 817).
DOES 1 THROUGH 10, inclusive,
ORDER AND NOTICE
In this case, P. court finds that the defendants were
Pursuant to L.R. Civ. the 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain objectively reasonable in their removal of this action,
events must occur:
Motions their later acceptance of the remand.
notwithstandingunder F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
Last day for Rule 26(f) meeting. is ORDERED that the
For the foregoing reasons, it
Last motion to remand be, Parties= Planning
plaintiff’s day to file Report of and it hereby is, granted to
Meeting. See L.R. Civ. P. 16.1.
the extent that the case shall be remanded to the Circuit Court
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
of Boone County, West Virginia. It is further ORDERED that
the undersigned, unless canceled. Lead counsel
directed to be, and
plaintiff’s motion appear. it hereby is, denied as to the
Entry of scheduling order.
request for fees and costs associated with this remand.
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit this order to all
The Clerk is requested to transmit this Order and
counsel of record and to any unrepresented parties.
Notice to all counsel of record and to any unrepresented
DATED: October 26, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge
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