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Rowe v. Peoples Bancorp, Inc.

United States District Court, S.D. West Virginia, Huntington Division

December 19, 2018

JEANNE ROWE, Plaintiff,



         Pending before the Court is Plaintiff's Motion to Remand and Award Expenses (ECF No. 8). For the forgoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion. Furthermore, the Court REMANDS this case to the Circuit Court in Cabell County, West Virginia and DENIES AS MOOT Defendant Welch's Motion to Dismiss (ECF No. 6).

         I. BACKGROUND

         Plaintiff Jeanne Rowe filed the initial complaint in this case against Defendants, Peoples Bancorp, Inc. and Ryan Welch, in the Circuit Court of Cabell County, West Virginia on June 22, 2018. Compl., pp. 3-8, ECF No. 1-1. Plaintiff then filed an amended complaint on June 28, 2018. Am. Compl., pp. 9-14, ECF No. 1-1. While Peoples Bancorp is an Ohio corporation with its principal place of business in Marietta, Ohio, both Plaintiff and Defendant Welch are citizens of West Virginia. Am. Compl. ¶¶ 1-3; Notice of Removal, ¶¶ 5-7, ECF No. 1. Plaintiff alleges Defendants discriminated against her on the basis of age when they denied her multiple promotions during her employment, thus violating the West Virginia Human Rights Act (“WVHRA”) and the substantial public policy of West Virginia. Am. Compl., ¶¶ 33, 39. Defendants removed this case to federal court on July 27, 2018, claiming the Court has both diversity and federal question jurisdictions. Notice of Removal, ¶¶ 5, 23. Plaintiff responded by filing the present Motion to Remand and Award Expenses. Mot. Remand, ECF No. 8.


         An action may be removed from state court to federal court if it is one over which the district court would have had original jurisdiction. 28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over all civil actions between citizens of different states, or between citizens of a state and citizens or subjects of a foreign state, where the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1)-(2). Generally, there must be “complete diversity”, where every defendant must be a citizen of a state different from every plaintiff. Diversity of citizenship must be established at the time of removal. Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir.1998).

         A district court also has original jurisdiction over questions of federal law. 28 U.S.C. § 1331. The presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule, which provides that a federal question must be presented on the face of a properly pleaded complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Hunter Douglas, Inc. v. Sheet Metal Workers Int'l Assoc., Local 159, 714 F.2d 342, 345 (4th Cir. 1983).

         Section 1446 of United States Code provides the procedure by which a defendant may remove a case to a district court. The party filing a notice of removal carries the burden of alleging and demonstrating the court's jurisdiction over the matter. Strawn et al. v. AT &T Mobility, LLC et al., 530 F.3d 293, 296 (4th Cir. 2008). Jurisdiction must be established by a preponderance of the evidence. See White v. Chase Bank USA, NA., Civil Action No. 2:08-1370, 2009 WL 2762060, at *1 (S.D. W.Va. Aug. 26, 2009) (internal citations omitted). In the interest of state sovereignty, a court must “resolve all doubts about the propriety of removal in favor of retained state jurisdiction.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).

         The doctrine of fraudulent joinder “effectively permits a district court to disregard, for jurisdictional purposes, the citizenship of certain non-diverse defendants, assume jurisdiction over a case, dismiss the non-diverse defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). The Fourth Circuit sets a high standard for defendants attempting to demonstrate fraudulent joinder, where “the removing party must establish either: 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, or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts.” Id. at 464 (emphasis in original; internal citations omitted). Courts may consider the record beyond the pleadings to “determine the basis of joinder” and “whether an attempted joinder is fraudulent.” AIDS Counseling & Testing Centers v. Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (internal quotation marks and citations omitted).

         The standard for fraudulent joinder is “even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Hartley, 187 F.3d at 424. “[Jurisdictional rules] function to steer litigation to the proper forum with a minimum of preliminary fuss. The best way to advance this objective is to accept the parties joined on the face of the complaint unless joinder is clearly improper.” Id. at 425. Furthermore, “courts should resolve all doubts about the propriety of removal in favor of retained state court jurisdiction.” Id. at 425 (internal quotation marks omitted).

         Removal is also proper when a question of federal law appears on the face of a complaint. Only those cases “in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends upon resolution of a substantial question of federal law” are subject to removal. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, (1983). “[I]f a claim is supported not only by a theory establishing federal subject matter jurisdiction, but also by an alternative theory which would not establish such jurisdiction, then federal subject matter jurisdiction does not exist.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 811, (1988).


         In the notice of removal, Defendants allege the Court has original jurisdiction over this case in both forms. Notice of Removal, ECF No. 1. Defendants claim there is diversity jurisdiction under the doctrine of fraudulent joinder and Plaintiff has alleged a federal question in her complaint. Id., ¶¶ 11, 23. The Court addresses each in turn before looking to Plaintiff's claim for an award of expenses.

         A. West Virginia ...

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