Daniels v. American Water Works Service Company, Inc. et al

Filing 28

MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 MOTION by John D. Daniels to Remand; granting the plaintiff's motion to the extent it requests remand to the Circuit Court of Kanawha County, West Virginia; denying the mot ion to the extent it requests fees and costs associated with the remand; directing that this action be REMANDED to the Circuit Court of Kanawha County, West Virginia; and ORDERS that this action be DISMISSED and STRICKEN from the docket of the court. Signed by Judge Joseph R. Goodwin on 5/16/2018. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JOHN D. DANIELS,
Plaintiff,
v.

CIVIL ACTION NO. 2:18-cv-00276

AMERICAN WATER WORKS
SERVICE COMPANY, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is Plaintiff, John Daniels’ Motion to Remand [ECF
No. 12]. The motion is ripe for adjudication. For the reasons stated herein, the court
GRANTS in part and DENIES in part the Motion to Remand [ECF No. 12].
I.

Background
The plaintiff, John Daniels, commenced this action by filing a four-count

complaint in the Circuit Court of Kanawha County, West Virginia. Compl. [ECF No.
1-2]. The plaintiff’s four-count Complaint arises out of the alleged wrongful
termination of his employment. Specifically, the Complaint alleges three counts of
West Virginia Human Rights Act violations and one count of retaliatory discharge in
violation of substantial West Virginia public policies. Id. The retaliatory discharge
count, which is at issue here, states
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Id. at 9.

Defendants’ acts and/or omissions constitute unlawful
discriminatory practices, which violated substantial public
policies of the State of West Virginia as set forth in W. Va.
Code § 21-3-1; the Family and Medical Leave Act, 29 U.S.C.
§ 2601, et seq., including but not limited to §§ 2615; and the
Occupational Safety and Health Act, 29 U.S.C. § 651,
including but not limited to § 654. Accordingly, Defendants’
actions constitute retaliatory/wrongful discharge in
violation of substantial public policy pursuant to Harless v.
First Nat’l Bank, 246 S.E.2d 270 (1978).”

The defendants, American Water Works Company, Inc. and American Water
Works Service Company, Inc. removed the action to federal court, with co-defendant
Jason Kessler’s consent. See Not. Removal [ECF No. 1]; Not. Consent Removal [ECF
No. 2]. The defendants based their removal on the contention that the “plaintiff
alleges violations of the FMLA.” Not. Removal 6. The plaintiff moved to remand the
case, arguing that the cause of action alleged is not one under the FMLA but one
under state common law, as articulated in Harless. See Pl.’s Mem. Law Supp. Mot.
Remand 3 [ECF No. 13].
II.

Standard of Review
An action may be removed from a state court to a federal court if it is one over

which the district court would have had original jurisdiction. 28 U.S.C. § 1441(a).
Federal district courts have original jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A cause of
action arises under federal law “only when the plaintiff’s well-pleaded complaint
raises issues of federal law.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); see
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Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996) (“[Courts] ordinarily . . . look
no farther 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.”) This rule provides two distinct pathways into federal court. Either (1)
federal law creates the cause of action, Franchise Tax Bd. v. Const. Laborers Vacation

Trust, 463 U.S. 1, 27 (1983)), or (2) the plaintiff’s claim raises “a federal issue, actually
disputed and substantial, which a federal forum may entertain without disturbing
any congressionally approved balance of federal and state judicial responsibilities.”

Grable & Sons Metal Prods. Inc. v. Darue, 545 U.S. 308, 314 (2005).
When a case is removed to federal court, the removing party bears the burden
of establishing the federal court’s jurisdiction over the matter. Wilson v. Republic Iron

& Steel Co., 257 U.S. 92 (1921); Strawn et al. v. AT&T Mobility, LLC et al., 530 F.3d
293, 296 (4th Cir. 2008); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151
(4th Cir. 1994). Removal jurisdiction must be strictly construed. Mulcahey, 29 F.3d
at 151. If federal jurisdiction is doubtful, the federal court must remand the case. Id.
III.

Discussion
a. Remand

The defendants assert that the plaintiff’s complaint “alleges violations of the
FMLA.” Not. Removal 3. Specifically, the defendants state that “[i]n his Complaint
at Count IV, or his retaliatory discharge in violation of public policy claim, Plaintiff
alleges Defendants violated two federal statutes: the Family and Medical Leave Act
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. . . and the Occupational Safety and Health Act. . . .” Resp. Opp. To Pl.’s Mot. Remand
1–2 [ECF No. 16]. Despite the defendants’ contentions, the plaintiff does not allege
FMLA or OSHA violations. Instead, the plaintiff alleges a claim for retaliatory
discharge in violation of a substantial West Virginia public policy. Under West
Virginia law, an at-will employee can bring such a claim (a “Harless claim”) when the
employer’s motivation for termination contravenes a “substantial public policy
principal.” Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692 (W. Va. 1982). To
state a Harless claim, the plaintiff must prove four elements, the first of which is
relevant to this analysis: “(1) That a clear public policy existed and was manifested
in a state or federal constitution, statute or administrative regulation, or in the
common law (the clarity element).” Herbert J. Thomas Mem’l Hosp. Assoc. v. Nutter,
238 W. Va. 375, 386 (2016).
Thus, in alleging a Harless claim, the plaintiff is required to state a clear
manifestation of the public policy that was allegedly violated. There is no indication,
other than mere reference to the FMLA and OSHA, that the plaintiff intended to
pursue any federal claims. The “well-pleaded complaint rule is designed to protect
the plaintiff from a defendant reading a cause of action into a complaint when none
is stated. . . . The rule is designed to allow the plaintiff the right to choose the forum.”

Spaulding v. Mingo Cty. Bd. of Educ., 897 F. Supp. 284, 287 (S.D. W. Va. 1995); see
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The rule makes the plaintiff

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the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance
on state law.”). The court will not infer a federal claim where none was alleged.
The cause of action at issue is a state public policy claim. It merely references
federal law as a source of that public policy. If the court is ultimately faced with any
question of federal law, the question will be only incidental to the fact-based
resolution of the dispute and will be of no importance to the federal system as a whole.

See McVeigh, 547 U.S. at 701 (stating that federal jurisdiction is favored for cases
presenting “pure issue[s] of law” and disfavored for cases that are “fact-bound and
situation-specific”); see also Gunn v. Minton, 568 U.S. 251, 260 (2013). “[I]t is the role
of the West Virginia courts to determine whether [the claim] falls within the contours
of a clearly recognizable public policy in the State of West Virginia.” Davis v. Cabella’s

Inc., No. 5:07-cv-88, 2008 WL 183717, at *1 (N.D. W. Va. Jan. 18, 2008)). Therefore,
the exercise of removal jurisdiction in this case is improper.
b. Payment of Fees and Costs
The plaintiff also seeks an award for attorney’s fees and costs incurred as a
result of the defendant’s removal of this matter. The plaintiff argues that such an
award is justified because the defendants lacked a reasonably objective bases for the
removal. 28 U.S.C. § 1447(c) states that “[a]n 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.” The award of such costs and fees is discretionary. If an

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objectively reasonable basis existed for the defendant’s removal, such costs and fees
should be denied. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
The court has reviewed all documents regarding the filing, removal, and
requested remand of this case. The court finds that the motion for costs and fees
should be denied.
IV.

Conclusion
For the foregoing reasons, the court GRANTS the plaintiff’s Motion to Remand

[ECF No. 12] to the extent it requests remand to the Circuit Court of Kanawha
County, West Virginia. The court DENIES the plaintiff’s Motion to Remand [ECF No.
12] to the extent it requests fees and costs associated with the remand. It is
ORDERED that this action be REMANDED to the Circuit Court of Kanawha County,
West Virginia. The court ORDERS that this action be DISMISSED and STRICKEN
from the docket of the court.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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May 16, 2018