Simerly v. Osborne et al

Filing 18

MEMORANDUM OPINION AND ORDER denying Plaintiff's 6 MOTION to Remand. Signed by Judge Thomas E. Johnston on 5/28/2020. (cc: counsel of record; any unrepresented party) (hkl)

Case 2:20-cv-00119 Document 18 Filed 05/28/20 Page 1 of 7 PageID #: 129

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TONYA SIMERLY,
Plaintiff,
v.

CIVIL ACTION NO. 2:20-cv-00119

C.L. OSBORNE, et al.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Tonya Simerly’s Motion to Remand. (ECF No. 6.)
For the reasons that follow, the Court DENIES the motion.
I.

BACKGROUND

This action arises out of law enforcement effectuating an arrest in the city of Smithers,
West Virginia. Plaintiff filed the original complaint in the Circuit Court of Fayette County, West
Virginia, on January 8, 2020. (See ECF No. 1.) The original complaint alleged violations of
Plaintiff’s rights under the Constitution of the State of West Virginia, the Constitution of the
United States, and asserted a common-law claim of negligence.

(See ECF No. 1-5.)

On

February 11, 2020, Defendants C.L. Osborne and the City of Smithers filed their Notice of
Removal and removed this case pursuant to 28 U.S.C. §§ 1331, 1367(a), and 1441.

(ECF No. 1

at 3.) Thereafter, on February 19, 2020, Plaintiff filed an Amended Complaint pursuant to Rule
15(a)(1)(A) of the Federal Rules of Civil Procedure. (ECF No. 5.)
The Amended Complaint alleges that on November 17, 2019, Plaintiff was a passenger in
a car with two other individuals. (Id. at ¶ 7). Upon arriving at the Plaintiff’s apartment,

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Defendant Osborne, a police officer for the City of Smithers, stopped behind the car and stated
that Plaintiff had a capias for her arrest for not appearing in the Fayette County Magistrate Court.
(Id. at ¶¶ 7–9.) Plaintiff alleges that her friend, Alyson Westfall and a passenger in the vehicle,
“interrupted the altercation” and asked Defendant Osborne why he was arresting Plaintiff. (Id. at
¶ 10.) Plaintiff asserts that Defendant Osborne immediately “slammed [Ms. Westfall] to the
ground,” resulting in her losing consciousness and sustaining injuries to her face, head, and body.
(Id.) Plaintiff further alleges that Defendant Osborne then picked her up and slammed her to the
ground as well, resulting in a loss of consciousness and injuries to her head, arm, and stomach.
(Id. at ¶ 11.) Plaintiff’s Amended Complaint asserts three causes of action: (1) A constitutional
tort under Article III, Sections 6 and 10 of the West Virginia Constitution; (2) negligence; and (3)
negligent infliction of emotional distress. (Id.) Plaintiff’s original complaint included a claim of
excessive force under 42 U.S.C. § 1983, but the Amended Complaint removed the federal claim, 1
and “therefore does not state a federal-law cause of action.” (See ECF No. 6 at 2.)
On February 20, 2020, Plaintiff filed a Motion to Remand and asked the Court to remand
this action to the Circuit Court of Fayette County. (ECF No. 6.) Defendants responded on March
5, 2020. (ECF No. 10.) Plaintiff did not file a reply. As such, this motion is fully briefed and
ripe for adjudication.
II.

LEGAL STANDARD

1 Notably, Count I of Plaintiff’s Amended Complaint asserts that this claim “specifically is not filed pursuant to 42
U.S.C. § 1983 or any other related federal statute.” (ECF No. 5 at ¶ 23.) The Amended Complaint also states that
the Defendants’ actions “violated the constitutional rights guaranteed to Plaintiff under the Fourth and Fourteenth
Amendment to the Constitution of the State of West Virginia.” (Id. at ¶ 25.) While the Constitution of West Virginia
has several amendments, none are identified as the “Fourth” or “Fourteenth” Amendment. Rather, each are identified
by a specific title. See, e.g., W. Va. Const. Judicial Amend. (titled “The Judicial Amendment.”).

2

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Congress has provided a right to removal from state to federal court for any case that could
have originally been brought in federal court. See 28 U.S.C. § 1441(a). One source of original
jurisdiction is 28 U.S.C. § 1331, which provides “The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States.” In
addition, 28 U.S.C. § 1367(a) confers federal district courts with supplemental jurisdiction “over
all other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”
III.

DISCUSSION

Plaintiff argues that the Court should remand this action because the Amended Complaint
is “devoid of any claims that invoke this Court’s original jurisdiction.” (ECF No. 7 at 3.)
Furthermore, Plaintiff argues that the principles articulated by the Supreme Court of the United
States in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 345 (1988)—namely, economy,
convenience, fairness, and comity—heavily favor remand. (Id. at 4.)
Defendants conversely argue that remand is not required because the Plaintiff herself
voluntarily withdrew the federal claims when she filed the Amended Complaint. (ECF No. 10 at
7.) Additionally, Defendants argue that the remaining state law claims are parallel to the original
federal claims and arise from the same case or controversy. (Id.) Finally, Defendants assert that
Plaintiff has simply “attempt[ed] to manipulate jurisdiction in this matter” by removing the federal
claim from her Amended Complaint. (Id. at 8.)
The removal procedure statute provides that “[i]f at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. 1447(c). The Fourth Circuit, however, does not consider this language to be an “absolute
3

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mandate,” but rather, a “preference for remand when all federal claims drop from a properly
removed case.” See Payman v. Lee Cty. Cmty. Hosp., 338 F.Supp.2d 679, 682 (W.D. Va. 2004).
Thus, district courts still retain discretion in deciding whether to remand supplemental state law
claims. See id. (citing Hinson v. Northwest Fin. S.C., Inc., 239 F.3d 611, 617–18 (4th Cir. 2001)).
In particular, when deciding whether to remand a case after a plaintiff removes her federal
claims, a district court should consider the “‘principles of economy, convenience, fairness, and
comity’ and whether the efforts of a party in seeking remand amount to a ‘manipulative tactic.’”
Hinson, 239 F.3d at 617 (quoting Carnegie-Mellon, 484 U.S. at 357). “If the plaintiff has
attempted to manipulate the forum, the court should take this behavior into account in determining
whether the balance of factors to be considered under the pendent jurisdiction doctrine support a
remand in the case.” Carnegie-Mellon, 484 U.S. at 357.
Here, removal to federal court was proper, which allows the Court to exercise its discretion
in determining whether remand to the state court is appropriate. See 28 U.S.C. § 1367(c); see also
Hinson, 239 F.3d at 617–18; Payman, 338 F.Supp.2d at 682–83. The Carnegie-Mellon principles
weigh in favor of this Court retaining jurisdiction. First, retaining jurisdiction would be fair to all
parties. Plaintiff Simerly included a federal cause of action in her original complaint, and thus
ran the risk of the Defendants removing the action to federal court. (See ECF No. 1-5 at 6–7.)
Plaintiff is represented by experienced counsel, who no doubt understood the risk of removal.
Second, convenience to the parties weighs in favor of this Court retaining jurisdiction.

A

Scheduling Order has been entered, (ECF No. 14), and the parties have further exchanged their
initial disclosures pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure. (ECF Nos.
15, 16.) Discovery, though in its early stages, has begun. (See ECF No. 17.) Third, comity
4

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similarly favors this Court retaining jurisdiction.

Plaintiff has only removed her claim of

excessive force under 42 U.S.C. § 1983, but has included a state law constitutional tort claim that
arises from the same case or controversy as her original federal claim and in fact runs parallel to
both the Fourth and Fourteenth Amendments to the United States Constitution. (See ECF No. 7
at 3–4.) See also Nutter v. Mellinger, No. 2:19-CV-00787, 2020 WL 401790, at *6 (S.D. W. Va.
Jan. 23, 2020) (“Article III, § 6 of the West Virginia Constitution parallels the Fourth Amendment
of the United States Constitution and protects citizens against unreasonable searches and
seizures.”); State v. Clark, 752 S.E.2d 907, 920–21 (W. Va. 2013) (“the protections afforded West
Virginia citizens under Article III, Section 6 of the state constitution are co-extensive with those
provided in the Fourth and Fourteenth Amendments to the United States Constitution”) (internal
citations and quotations omitted). There are no novel or complex issues of state law raised in the
Amended Complaint. Finally, judicial economy weighs in favor of remand, as this action is only
in its early stages. However, this factor is outweighed by the notions of fairness, convenience,
and comity.
The Court also considers the final factor the Supreme Court identified in Carnegie-Mellon:
“[W]hether the efforts of a party in seeking remand amount to a ‘manipulative tactic.’” Hinson,
239 F.3d at 617 (quoting Carnegie-Mellon, 484 U.S. at 357). Certainly, there are times when a
plaintiff’s decision to drop certain claims is done upon the recognition that her case would be
stronger without them. Here, however, the evidence tends to show Plaintiff’s decision to remove
her federal claim is merely an attempt to avoid federal jurisdiction. Plaintiff’s original claim of
excessive force under § 1983 was not a secondary claim, and the facts alleged in both her original
complaint and the Amended Complaint are nearly identical. (Compare ECF No. 1-5 with ECF
5

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No. 5.) These claims are based on the same allegation: Defendant Osborne effectuated her arrest
with excessive force. Because the underlying allegations themselves did not change, this suggests
that Plaintiff’s decision to remove the § 1983 claim was not based on a tactical decision that her
case would be stronger without it, but was rather an attempt to return to state court. See, e.g.,
Payman, 388 F.Supp.2d at 684. Furthermore, this evidence is bolstered by the Plaintiff rather
noticeably attempting to avoid federal question jurisdiction by stating that her state-law
constitutional tort claim “specifically is not filed pursuant to 42 U.S.C. § 1983 or any other related
federal statute.” (ECF No. 5 at ¶ 23.) Similarly, the Plaintiff stated that “[t]he actions of
Defendants also violated the constitutional rights guaranteed to Plaintiff under the Fourth and
Fourteenth Amendment to the Constitution of the State of West Virginia.” (ECF No. 5 at ¶ 25.)
Of course, there are no such amendments to the Constitution of West Virginia.2 Indeed, upon a
comparison with the original complaint, it is apparent Plaintiff simply replaced the words “United
States Constitution” with “Constitution of the State of West Virginia.” (Compare ECF No. 1-5
at ¶ 25 with ECF No. 5 at ¶ 25.)
“While it is true that the well-pleaded complaint rule allows a plaintiff to decide whether
or not to allege federal claims, the rule does not give plaintiffs free reign to forum shop.” Payman,
388 F.Supp.2d at 684 (internal citation omitted). Accordingly, the Court DENIES Plaintiff’s
Motion to Remand.
IV.

CONCLUSION

2 While the Constitution of West Virginia indeed contains several amendments—eighteen, to be precise—none are
commonly identified as the “Fourth” or the “Fourteenth” Amendment. However, even to the extent that the
amendments to the Constitution of West Virginia would be identified by number, the fourth amendment is titled “The
Good Roads Amendment of 1928,” and the fourteenth is titled “Veterans Bonus Amendment.” See W. Va. Const.
The Good Roads Amend. of 1928; W. Va. Const. Veterans Bonus Amend. Both are inapplicable to this matter.

6

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For the reasons stated above, Plaintiff’s Motion to Remand (ECF No. 6) is DENIED.
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:

7

May 28, 2020