United States District Court, S.D. West Virginia, Charleston
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge.
matter is assigned to the Honorable John T. Copenhaver, Jr.,
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the
court is Defendant Riley's Renewed Motion to Dismiss (ECF
No. 39), which is undisputed.
April 20, 2015, the plaintiff, Chase Carmen Hunter
(“Hunter”), filed, inter alia, a
Verified Petition for Declaratory Judgment and Permanent
Injunction (hereinafter “Complaint”) (ECF No. 2),
contending that her non-resident West Virginia insurance
license was improperly revoked after her licenses were
allegedly revoked in at least two other states. Hunter seeks
a declaratory judgment declaring that her West Virginia
license is active and valid and an order permanently
enjoining the defendant from violating state and federal law.
Hunter contends that she has no other adequate remedy at law.
the second civil action filed by Hunter in this court
concerning the allegations contained in her Complaint, and
one of many similar cases filed in federal courts around the
country. (ECF No. 40 at 3) (listing other cases). Hunter
voluntarily dismissed her first civil action filed in this
court pursuant to Rule 41(a)(1)(A) on April 16, 2015. Notice
of Dismissal, ECF No. 16, Hunter v. Riley, No.
2:14-cv-26978 (S.D. W.Va., Apr. 16, 2015). Then, on April 20,
2015, she filed the instant civil action, in which she seeks
to prohibit the West Virginia Insurance Commissioner from
taking adverse action against her West Virginia insurance
September 30, 2016, Judge Copenhaver entered a Memorandum
Opinion and Order (ECF No. 33) adopting the undersigned's
Proposed Findings and Recommendation (“PF&R”)
and dismissing the claims against the West Virginia Office of
the Insurance Commissioner (“WVOIC”), with
prejudice, but recommitting this matter to the undersigned
for a determination of the status of the administrative
proceedings surrounding Hunter's West Virginia insurance
license and further consideration of whether abstention under
Younger v. Harris, 401 U.S. 37 (1971), should apply
to the claims against defendant Riley. Hunter later filed
untimely objections to the PF&R (ECF No. 34), which were
overruled by Judge Copenhaver on July 10, 2017 (ECF No. 45).
March 14, 2017, defendant Riley filed a Renewed Motion to
Dismiss (ECF No. 39) and a Memorandum of Law in support
thereof (ECF No. 40). The motion documents assert that,
although the administrative proceedings concerning
Hunter's West Virginia insurance license had been stayed
upon the filing of her first lawsuit in this court, on
September 2, 2016, the WVOIC sent Hunter a Notice of Hearing
scheduling a hearing on October 5, 2016, at 9:30 a.m.,
pursuant to her request to appeal the decision not to renew
her non-resident producer license under West Virginia Code
§ 33-12-24(c). (ECF No. 39, Ex. 1). The September 6,
2016 Notice of Hearing was sent via certified mail to the
address listed for Hunter on the NAIC State License Report at
that time, which appears to be in Walnut, California, as well
as to Hunter's business address in West Springfield,
Massachusetts, and to an e-mail address,
firstname.lastname@example.org. (Id.) The U.S.
Postal Service provided a return receipt indicating that the
certified mail sent to the Walnut, California address had
been signed for by a “Justin De La Torre”
(signature not completely legible) on September 6, 2016. (ECF
No. 39, Ex. 2).
Hunter failed to appear at the hearing on October 5, 2016.
Nevertheless, the WVOIC presented evidence to Hearing
Examiner Mark W. Carbone on the issue of whether the denial
of Hunter's renewal application was reasonable. (ECF No.
39, Ex. 3). The Hearing Examiner ultimately found that the
WVOIC had demonstrated substantial evidence to justify the
decision to decline renewal of Hunter's non-resident
producer license, pursuant to W.Va. Code §§
33-12-24(b)(1), (b)(2), (b)(9), and (b)(10), and that such
decision was reasonable. (Id. at 8-14). Thus, on
October 2o, 2016, defendant Riley entered a Final Order
adopting the Recommended Decision of the Hearing Examiner,
including the findings of fact and conclusions of law
therein. (ECF No. 39, Ex. 4).
to the defendant's motion documents, the Final Order was
sent by certified mail to Hunter's address listed on the
NAIC State Licensing Report in Walnut, California. A return
receipt indicated that “Justin De La Torre” also
signed for this certified mail on October 31, 2016. (ECF No.
39, Ex. 5). Exhibit 5 to the defendant's Motion to
Dismiss also indicates that a certified mail return receipt
for mail sent to Hunter's West Springfield, Massachusetts
address was signed for by “Justin De La Torre” on
November 3, 2016. (Id.) Pursuant to W.Va. Code
§ 33-2-14, Hunter had 30 days to appeal the
Commissioner's Final Order to the Circuit Court of
Kanawha County, which she apparently failed to do.
while the state administrative proceedings were pending, and
during the time in which Hunter could have pursued judicial
review of the administrative decision in the West Virginia
state courts, she filed an improvident interlocutory appeal
of Judge Copenhaver's September 30, 2016 Memorandum
Opinion and Order in the United States Court of Appeals for
the Fourth Circuit. (ECF No. 35). The interlocutory appeal
was dismissed for lack of jurisdiction by the Fourth Circuit
on April 27, 2017. Hunter v. Riley, No. 16-2260
(4th Cir. Apr. 27, 2017). (ECF No. 41).
Riley's Renewed Motion to Dismiss maintains that
Younger abstention should prevent this federal court
from exercising jurisdiction over Hunter's Complaint in
this matter. (ECF No. 40 at 7-11). The Renewed Motion to
Dismiss further asserts that, even if this court could
exercise jurisdiction over Hunter's claims, the Complaint
fails to state a claim upon which relief can be granted and
defendant Riley is entitled to qualified immunity thereon
because he was acting in the scope of his authority in the
exercise of a discretionary function as Insurance
Commissioner and Hunter cannot demonstrate that his actions
violated a clearly established constitutional right or other
federal law, or that he acted maliciously, fraudulently or
oppressively. (Id. at 11-15).
failed to file any response to the Renewed Motion to Dismiss.
Thus, the undersigned will treat the motion as unopposed.
Riley has filed a Motion to Dismiss (ECF No. 22), asserting
this federal court should decline to exercise jurisdiction
and dismiss this matter pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. The motion further asserts
that Hunter's Complaint fails to state any plausible
claim upon which relief can be granted and, thus, the
Complaint should be dismissed under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. In Bell Atlantic Corp
v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court
observed that a case should be dismissed for failure to state
a claim upon which relief can be granted if, viewing the
well-pleaded factual allegations in the complaint as true,
and in the light most favorable to the plaintiff, the
complaint does not contain “enough facts to state a
claim to relief that is plausible on its face.” While
the complaint need not assert “detailed factual
allegations, ” it must contain “more than labels
and conclusions” or a “formulaic recitation of
the elements of a cause of action.” Id. at
Supreme Court elaborated on its holding in Twombly
in Ashcroft v. Iqbal, 556 U.S. 662 (2009), a ...