Westfall v. Osborne et al
Filing
34
DISMISSAL ORDER This Court DISMISSES Plaintiff's remaining claim, and subsequently, DISMISSES this action with prejudice; the Clerk is directed to remove this case from the Court's active docket. Signed by Judge Thomas E. Johnston on 12/7/2020. (cc: counsel of record; any unrepresented party) (ts)
Case 2:20-cv-00118 Document 34 Filed 12/07/20 Page 1 of 2 PageID #: 177
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ALYSON WESTFALL,
Plaintiff,
v.
CIVIL ACTION NO. 2:20-cv-00118
C.L. OSBORNE, et al.,
Defendant.
DISMISSAL ORDER
On October 26, 2020, this Court granted in part and denied in part Defendants C.L.
Osborne (“Osborne”) and the City of Smithers, West Virginia’s (the “City”) (collectively,
“Defendants”) Motion to Dismiss, (ECF No. 9). (ECF No. 29.) The order dismissed all of
Plaintiff Alyson Westfall’s (“Plaintiff”) claims, except for her claim asserted pursuant to Article
III, § 6 of the West Virginia Constitution. (Id.) As to her claim under Article III, § 6, this Court
noted that whether the state of West Virginia recognized a private cause of action pursuant to this
section of the state Constitution was a point of dispute among the federal courts of the state. (Id.
at 6.) Because this Court had previously certified this question to the Supreme Court of Appeals,
the Court instructed Plaintiff to notify the Court of her intent to pursue this claim pending a
decision by the Supreme Court. (Id. at 7.) Plaintiff notified the Court of her intent to pursue the
claim by letter dated October 27, 2020. (ECF No. 31.) This Court then stayed this action by
order on November 4, 2020. (ECF No. 32.)
On November 18, 2020, the Supreme Court of Appeals answered the certified question in
the negative and created a new syllabus point: “West Virginia does not recognize a private right of
Case 2:20-cv-00118 Document 34 Filed 12/07/20 Page 2 of 2 PageID #: 178
action for monetary damages for a violation of Article III, Section 6 of the West Virginia
Constitution.” Syl. Pt. 3, Fields v. Mellinger, No. 20-0183 (W. Va. Nov. 18, 2020).
Plaintiff’s only remaining claim in this action is one for monetary damages under Article
III, § 6. On November 20, 2020, the Court lifted the stay that had been granted in this matter
pursuant to the Supreme Court of Appeals of West Virginia’s answer to the certified question
presented by this Court in Fields v. Mellinger, Civil Action No. 2:19-cv-00493 (S.D.W. Va. Mar.
3, 2020). (ECF No. 33.) Pursuant to that order, Plaintiff was given ten (10) days to file any
objections to the Court dismissing this action based on the Supreme Court’s answer in Fields.
(Id.) To date, Plaintiff has not filed any objections. Accordingly, this Court DISMISSES
Plaintiff’s remaining claim, and subsequently, DISMISSES this action with prejudice. The
Court DIRECTS the Clerk to remove this case from the Court’s active docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
2
December 7, 2020
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