Simerly 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 12/3/2020. (cc: counsel of record; any unrepresented party) (ts)

Case 2:20-cv-00119 Document 34 Filed 12/07/20 Page 1 of 2 PageID #: 179

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.
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 Tonya
Simerly’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

Case 2:20-cv-00119 Document 34 Filed 12/07/20 Page 2 of 2 PageID #: 180

of 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:

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December 7, 2020