United States District Court, S.D. West Virginia
THE COUNTY COMMISSION OF FAYETTE COUNTY, WEST VIRGINIA, Plaintiff,
SEMINOLE WEST VIRGINIA MINING COMPLEX, LLC, KENNETH MCCOY, JASON MCCOY, MIKE ISABELL, GREAT MIDWEST INSURANCE CO., IRONSHORE SPECIALTY INS. CO., DOE INSURERS, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., Senior United States District Judge
is a motion to remand to the Circuit Court of Fayette County,
West Virginia, filed February 19, 2019, by plaintiff the
County Commission of Fayette County, West Virginia
(“the Commission”). The defendant Seminole West
Virginia Mining Complex, LLC, (“Seminole”) filed
a response on February 26, 2019, to which the plaintiff
replied on March 4, 2019.
case was first presented to the court through its companion
case, Seminole West Virginia Mining Complex, LLC v. John
Brenemen, et al., 2:19-cv-00082. The court herein refers
to the instant case as “the enforcement action”
and the case brought by Seminole as “the declaratory
action.” In the declaratory action, Seminole sought, as
an initial matter, a temporary restraining order
(“TRO”) to enjoin the Commission from enforcing a
local ordinance enacted by the Commission and an order by the
Commission which, inter alia, mandated Seminole to conduct
costly monitoring, testing, analyzing, and reporting as to
its contribution to the increase of iron concentrations in a
nearby water supply well. The Commission's order states
that noncompliance therewith may result in costly civil
penalties; the only available avenue to challenge the order
under the Commission's ordinance is if the Fayette County
Prosecuting Attorney brings an enforcement action against the
noncomplying party. Seminole has not complied with the order.
sought a TRO to enjoin the Commission from enforcing the
ordinance and order, arguing that compliance therewith would
be unreasonably costly, especially in light of Seminole's
pending bankruptcy proceeding in the Northern District of
Alabama, and that the Commission's ordinance is unlawful
February 13, 2019, the day before the TRO hearing, the
Commission filed the instant enforcement action in the
Circuit Court of Fayette County to enforce Seminole's
compliance with the local ordinance and order. The action is
brought against Seminole, its two members (Kenneth R. McCoy
and Jason R. McCoy), its environmental manager (Mike
Isabell), as well as the insurers of Seminole. In light of
the state enforcement action, the Commission opposed the TRO
as violating the federal Anti-Injunction Act, 28 U.S.C.
§ 2283: “A court of the United States may not
grant an injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.”
on February 14, 2019, the day of the TRO hearing, Seminole
removed the enforcement action to this court on diversity
grounds, thereby apparently resolving the Anti-Injunction Act
issue so long as the enforcement action remains in this
court. At the hearing, the Commission informed the court of
its intent to file a motion to remand. The court ordered
expedited briefing on the remand issue and deferred
consideration of the TRO until such issue was decided. At the
hearing, the Commission agreed not to impose the daily civil
penalties under its ordinance for forty-five days while the
parties briefed and the court considered the issue relating
to remand. The motion to remand is ripe for adjudication.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). The burden of establishing removal jurisdiction
rests on the removing party. Mulcahey v. Colum. Organic
Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994). “Any
doubts concerning the propriety of removal must be resolved
in favor of retained state court jurisdiction.”
Marshall v. Manville Sales, Corp., 6 F.3d 229, 232
(4th Cir. 1993).
court is vested with original jurisdiction of all actions
between citizens of different states when the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1).
“Section 1332 requires complete diversity among
parties, meaning that the citizenship of every plaintiff must
be different from the citizenship of every defendant.”
Cent. W. Virginia Energy Co. v. Mountain State Carbon,
LLC, 636 F.3d 101, 103 (4th Cir. 2011) (citing
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
Commission challenges the court's jurisdiction on the
ground that the parties lack complete diversity.
Specifically, it contends that it and defendant Mike Isabell
are both West Virginia citizens.
however, argues that the citizenship of Mike Isabell should
be disregarded because he is a fraudulently joined
joinder' is a term of art, [and] it does not reflect on
the integrity of plaintiff or counsel[; rather, it] is merely
the rubric applied when a court finds either that no cause of
action is stated against [a] nondiverse defendant, or in fact
no cause of action exists.” AIDS Counseling &
Testing Ctrs. v. Group W Television, Inc., 903 ...