United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
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
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.
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).
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).
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
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).
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).
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).
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
West Virginia ...