United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
before the court plaintiff's Motion to Remand the case
filed October 2, 2017. Plaintiff further requests an award of
attorney's fees and costs associated with the remand.
case was originally filed in the Circuit Court for Boone
County, West Virginia, on August 18, 2017. Defendants made a
timely removal to this court by notice on September 11, 2017.
This removal was made pursuant to 28 U.S.C. § 1331,
which provides that “district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
Defendants represented that plaintiff's complaint
included claims for “wrongful termination for political
purposes, violation of her First and Fourteenth Amendment
rights, and failure to pay timely wages in violation of the
West Virginia Wage Payment and Collection Act.”
Therefore, defendants argue, removal is proper because the
action “arises under the laws of the United States,
i.e., the United States Constitution, 42 U.S.C. [§]
1983, and [the claims] are not claims that have been made
nonremovable by statute.”
motion maintains that removal of this action was improper
because the complaint asserts no claim under the
Constitution. Plaintiff's complaint brings two counts:
(I) wrongful termination in violation of the public policy of
West Virginia and (II) violation of the West Virginia Wage
Payment and Collection Act. While the factual background of
the complaint states that plaintiff's termination was
“politically motivated and violated plaintiff's
First and Fourteenth Amendment Rights, ” Count I
asserts that “defendants violated the public policy of
the State of West Virginia as established by the United
States Constitution . . . .”
issue for remand is whether Count I of the complaint
“aris[es] under the Constitution” for purposes of
28 U.S.C. § 1331. Though the parties offer differing
analysis, both plaintiff's motion and defendants'
response agree that remand is appropriate in this
action for lack of a federal question.
states that Count I is brought pursuant to Harless v.
First Nat. Bank in Fairmont, 162 W.Va. 116 (1978), which
held that an employer's right to discharge an at will
employee is “tempered by the principle that where the
employer's motivation for the discharge is to contravene
some substantial public policy principle, then the employer
may be liable to the employee for damages occasioned by the
discharge.” Id. at 124. The sources of West
Virginia public policy can include “our federal and
state constitutions, our public statutes, our judicial
decisions, the applicable principles of common law, [and] the
acknowledged prevailing concepts of the federal and state
governments relating to and affecting the safety, health,
morals and general welfare of the people.” Brown v.
Genesis Healthcare Corp., 228 W.Va. 646, 684 (2011)
(citing Cordle v. General High Mercer Corp., 174
W.Va. 321, 325 (1984)). As such, in Adkins v.
Miller, 187 W.Va. 774 (1992), the Supreme Court of
Appeals of West Virginia held that the First Amendment to the
United States Constitution and article III, section 7 of the
West Virginia Constitution “extend a protection to
governmental employees to be free from employment decisions
made solely for political reasons.” Id. at
780. Therefore, the Supreme Court of Appeals of West Virginia
concluded that W.Va. Code § 7-7-7(h), which allows
county officials to discharge their employees, may not be
interpreted as permitting a governmental employer to make
employment decisions based solely upon political reasons,
unless employees hold certain types of positions.
Id. Plaintiff contends the reference to the United
States Constitution in her complaint simply sets forth one of
the bases for the West Virginia public policy, and that this
does not invoke federal jurisdiction. See Davis v.
Cabela's, Inc., No. 5:07CV88, 2008 U.S. Dist. LEXIS
4081 (N.D.W.V. Jan. 18, 2008) (“[I]t is the role of the
West Virginia courts to determine whether [a claim for
wrongful discharge based on employee's exercise of
personal or family leave] falls within the contours of a
clearly recognizable public policy . . . .”).
disagree with plaintiff's analysis, but concede that
remand is proper where, as here, a plaintiff's particular
claim can be resolved on theories of state law without
proving a theory of federal law, the claim “does not
necessarily depend on a question of federal law, ” and
“does not ‘arise under' federal law for
purposes of § 1331.” Dixon v. Coburg Dairy,
Inc., 369 F.3d 811, 817-18 (4th Cir. 2004) (“[I]f
the plaintiff can support his claim with even one theory that
does not call for an interpretation of federal law, his claim
does not arise under federal law for purposes of §
court agrees with the parties' conclusion that it does
not have subject matter jurisdiction over this controversy.
Attorney's Fees and Costs
requests the award of fees and costs associated with this
motion under 28 U.S.C. § 1447(c), which states in
pertinent part: “An 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.” “[C]ourts may award attorney's fees
under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely,
when an objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005).
asserts there was no objectively reasonable basis for removal
because using federal law to establish a violation of the
public policy of West Virginia does not invoke federal
jurisdiction. A series of unreported cases from the West
Virginia district courts support this notion. See Davis
v. Cabela's, Inc., No. 5:07CV88, 2008 U.S. Dist.
LEXIS 4081 (N.D.W.V. Jan. 18, 2008); Groves v. Superior
Well Servs., No. 1:10CV149, 2010 U.S. Dist. LEXIS 135163
(N.D.W.V. Dec. 21, 2010); Slack v. Charleston Area Med.
Ctr., Inc., No. 2:14-cv-27055, 2015 U.S. Dist. LEXIS
72138 (S.D.W.V. June 4, 2015). Plaintiff disclosed these
cases to defendants' counsel prior to filing this motion
and requested a voluntary remand.
argue that the complaint's express references to the
Constitution made it objectively reasonable for them to
believe the cause of action “depend[ed] on a resolution
of a federal question sufficiently substantial to arise under
federal law within the meaning of 28 U.S.C. §
1331.” Ormet Corp. v. Ohio Power Co., 98 F.3d
799, 806 (1996). Indeed, the complaint alleges that
plaintiff's termination was “politically motivated
and violated plaintiff's First and Fourteenth Amendment
rights, ” but it is now clear that she is not asserting
a separate cause of action on that ground. Accordingly,
defendants ultimately came to agree that remand is proper in
this case because Count I of plaintiff's complaint
“does not exclusively rely on a federal
question.” Defs.' Resp. Pls.' Mot. Dismiss at 3
(citing Dixon, 369 F.3d at 817).
case, the court finds that the defendants were objectively
reasonable in their removal of this action, not with ...