United States District Court, N.D. West Virginia
JAMES L. ALDRIDGE, GARY BARNETT, KEVIN B. CARTER, DAVID L. CHAPMAN, CHARLES D. GLASPELL, WILLIAM F. GOSS, JOHN KELLAWAY, JEFFREY D. WATSON, and THOMAS S. ZAPACH, Plaintiff,
THE MARION COUNTY COAL CO.; MURRAY AMERICAN ENERGY, INC.; ROBERT E. MURRAY; PAUL B. PICCOLINI; PAMELA S. LAYTON; BRIAN FREDERICKSON; MATTHEW C. EFAW; and THOMAS H. SIMPSON, a/k/a "Pete, " Defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
MOTIONS TO STRIKE AND GRANTING PLAINTIFFS' MOTIONS TO
M. KEELEY UNITED STATES DISTRICT JUDGE.
March 14, 2017, nine individual plaintiffs filed separate
employment discrimination complaints in the Circuit Court of
Marion County, West Virginia ("Circuit Court"),
against the defendants, The Marion County Coal Co.
("TMCC"), Murray American Energy, Inc., Robert E.
Murray ("Murray"), Paul B. Piccolini, Pamela S.
Layton ("Layton"), Brian Frederickson, Matthew C.
Efaw ("Efaw"), and Thomas H. Simpson, a/k/a
"Pete" ("Simpson"). On May 15, 2017, the
defendants removed each case, invoking diversity jurisdiction
based on the allegation that Layton and Simpson, both West
Virginia residents, had been fraudulently joined to defeat
combined scheduling conference held on July 24, 2017, the
Court heard argument on the pending motions. With the consent
of the parties, it consolidated the nine cases prior to
ruling on the pending motions, and designated as lead case
the complaint filed by the plaintiff, James L. Aldridge
("Aldridge"). For the reasons stated on the record
during the scheduling conference and those that follow, the
Court DENIED the defendants' motions to
strike, GRANTED the plaintiffs' motions
to remand, and REMANDED these cases to the
Circuit Court of Marion County.
plaintiffs' allegations arise primarily out of three
reductions in force that took place at TMCC mines in May
2015, December 2015, and April 2016. On March 14, 2017, each
of the plaintiffs filed a complaint in the Circuit Court,
alleging violations of the West Virginia Human Rights Act
("WVHRA") and public policy. All nine were employed
by TMCC and allege that the decision to terminate their
employment, or to engage in a discriminatory course of
conduct that caused them to resign, was improperly based on
each plaintiff's age or disability.
few exceptions, Aldridge's complaint is a fair
representation of those filed in each of the removed cases.
Aldridge named three allegedly non-diverse defendants. Those
include Layton, who is the TMCC Human Resources Supervisor,
Efaw, who is is a TMCC mine manager,  and Simpson, who is TMCC s
Vice President (Dkt. No. 1-1 at 7). According to Aldridge, he
was employed by the defendants as a safety inspector from
December 5, 2013, until May 29, 2015, when he was terminated
after being provided a letter announcing a reduction-in-force
due to adverse market conditions. Id. at 8.
first claim for relief, Aldridge alleges that his
"termination . . . was based, in whole or in part, upon
[his] age, in violation of the West Virginia Human Rights
Act, West Virginia Code § 5-11-9(1)." He asserts
damages based on "the defendants' actions."
Id. Aldridge's second claim contends that
"[t]he Defendants refused to provide the Plaintiff a
reasonable accommodation, " and that such
"[d]iscrimination based upon a disability violates the
West Virginia Human Rights Act, W.Va. Code § 5-11-1
et seq." Although he claims that age
discrimination led to his termination, Aldridge also alleges
that disability discrimination led to his constructive
discharge. In his third and fourth claims, Aldridge
alleges that the defendants violated the WVHRA, conferring
jurisdiction on the Circuit Court pursuant to W.Va. Code
§ 55-7-9, and that they violated West Virginia public
policy. Id. at 9-10. For relief, he seeks "lost
wages and benefits, back pay, front pay, damages for
indignity, embarrassment and humiliation, and punitive
damages." Id. at 11.
the defendants removed the cases to this Court on May 15,
2017, they alleged fraudulent joinder. To rebut that, Layton
and Simpson each executed an affidavit averring that they
"did not have input into, and participated in no way
in" TMCC s decision to terminate the plaintiffs (Dkt.
Nos. 1; 1-2; 1-4). They argued that the plaintiffs therefore
could not possibly establish a cause of action against them
under the WVHRA (Dkt. No. 1 at 4) . The next day, the
defendants all filed three motions seeking to dismiss each
complaint (Dkt. Nos. 5; 7; 9).
24, 2017, each plaintiff filed an amended complaint as of
right (Dkt. No. 13), a motion to remand (Dkt. No. 16), and a
motion to stay rulings on the pending motions to dismiss
until after the Court ruled on the motion to remand or, in
the alternative, to deny the motions to dismiss as moot (Dkt.
No. 14). On June 2, 2017, the Court denied the
defendants' motions to dismiss as moot (Dkt. No. 18) .
After briefing the motions to remand, the defendants moved to
strike as untimely the plaintiffs' reply briefs or, in
the alternative, their corresponding affidavits (Dkt. No.
STANDARDS OF REVIEW
Removal and Remand
28 U.S.C. § 1441(a) provides that "any civil action
brought in a state court of which the district courts of the
United States have original jurisdiction, may be removed by
the defendant or the defendants." See also King v.
Marriott Int'l, Inc., 337 F.3d 421, 424 (4th Cir.
2003) . Nonetheless, "federal courts, unlike state
courts, are courts of limited jurisdiction, created by
Congress with specified jurisdictional requirements and
limitations, " Strawn v. AT&T Mobility LLC,
530 F.3d 293, 296 (4th Cir. 2008), and federalism counsels
that removal jurisdiction should be strictly construed.
Palisades Collections LLC v. Shorts. 552 F.3d 327,
334 (4th Cir. 2008) (citing Md. Stadium Auth. v. Ellerbe
Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005)).
burden of establishing federal jurisdiction is placed upon
the party seeking the removal." Mulcahey v. Columbia
Organic Chems., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
"All doubts about the propriety of removal should be
resolved in favor of retaining state court jurisdiction,
" and thus remanding a case to state court. Vitatoe
v. Mylan Pharm., Inc., 2008 WL 3540462, at *2 (N.D.
W.Va. Aug. 13, 2008) (citing Hartley v. CSX Transo.,
Inc., 187 F.3d 422, 425 (4th Cir. 1999)).
district courts have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between citizens of different states . . . ." 28 U.S.C.
§ 1332(a). This provision has been consistently
interpreted "to require complete diversity of
citizenship of each plaintiff from each defendant."
Rosmer v. Pfizer Inc., 263 F.3d 110 (4th Cir. 2001)
(Motz, J., dissenting) (citing Strawbridqe v.
Curtiss, 7 U.S. (3 Cranch) 267 (1806)).
a non-diverse defendant does not necessarily defeat diversity
jurisdiction. The doctrine of fraudulent joinder
"effectively permits the district court to disregard,
for jurisdictional purposes, the citizenship of certain
nondiverse defendants, assume jurisdiction over a case,
dismiss the nondiverse defendants, and thereby retain
jurisdiction." Mayes v. Rapoport, 198 F.3d 457,
461 (4th Cir. 1999). In the Fourth Circuit, "[t]he party
alleging fraudulent joinder bears a heavy burden-it must show
that the plaintiff cannot establish a claim even after
resolving all issues of law and fact in the plaintiff's
favor." Johnson v. Am. Towers, LLC, 781 F.3d
693, 704 (4th Cir. 2015) (quoting Hartley, 187 F.3d
removing party must show either outright fraud in the
plaintiff's pleading of jurisdictional facts or that
there is no possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in
state court." Id. (internal quotation and
citation omitted). When a removing party contends that there
is "no possibility" of establishing a cause of
action, "a plaintiff s claim against a non-diverse
defendant 'need not ultimately succeed to defeat removal;
only a possibility of a right to relief need be
asserted.'" Id. (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229, 233 (4th Cir. 1993)).
"glimmer of hope" suffices, a standard "even
more favorable to the plaintiff than the standard for ruling
on a motion to dismiss under Fed.R.Civ.P. 12(b) (6) ."
Mayes, 198 F.3d at 466 (quoting Hartley,
187 F.3d at 424). "[T]he court is not bound by the
allegations of the pleadings, but may instead 'consider
the entire record, and determine the basis of joinder by any
means available.'" AIDS Counseling & Testing
Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1004
(4th Cir. 1990) (quoting Dodd v. Fawcett Publ'ns,
Inc., 329 F.2d 82, 85 (10th Cir. 1964)).
WVHRA makes it an "unlawful discriminatory practice . .
. [f]or any employer to discriminate against an individual
with respect to compensation, hire, tenure, terms, conditions
or privileges of employment if the individual is able and
competent to perform the services required." W.Va. Code
§ 5-11-9(1) . An "employer" is "any
person employing twelve or more persons within the
state." Id. § 5-11-3(d).
addition, the WVHRA imposes liability on individuals. It is
an "unlawful discriminatory practice . . . [f]or any
(A) Engage in any form of threats or reprisal, or to engage
in, or hire, or conspire with others to commit acts or
activities of any nature, the purpose of which is to harass,
degrade, embarrass or cause physical harm or economic loss or
to aid, abet, incite, compel or coerce any person to engage
in any of the unlawful discriminatory practices defined in
Id. § 5-11-9(7).
term 'person, ' as defined and utilized within the
context of the West Virginia Human Rights Act, includes both
employees and employers. Any contrary interpretation, which
might have the effect of barring suits by employees against
their supervisors, would be counter to the plain meaning of
the statutory language and contrary to the very spirit and
purpose of this particular legislation." Sy1. Pt. 3,
Holstein v. Norandex, Inc., 461 S.E.2d 473 ( W.Va.
1995); see also W.Va. Code § 5-11-3 (a).
"A cause of action may be maintained by a plaintiff
employee as against another employee under the West Virginia
Human Rights Act. Further, the cause of action may properly