United States District Court, S.D. West Virginia
JULIA E. BLACKWOOD, Plaintiff,
BERRY DUNN, LLC, Defendant.
T. Copenhaver, Jr. Senior United States District Judge
is plaintiff's Motion for Reconsideration of the
Court's Order of March 13, 2019 Denying Remand, filed
August 1, 2019, to which the defendant filed its response on
August 15, 2019, and the plaintiff filed her reply on August
motion for remand rested on two causes of action with factual
allegations to support a claim against Ms. Becnel; namely,
wrongful termination pursuant to West Virginia Code §
21-3-20 and invasion of privacy. Pl.'s Mot. Remand, ECF
No. 6, at 3-4. In defendants' response in opposition to
that motion, they note that “Plaintiff fails to address
any of the other claims mentioned in the Complaint. Thus, she
apparently concedes that she has no possible causes of action
against Becnel based on those claims.” Defs.'
Resp., ECF No. 9, at 4. Plaintiff did not reply to
defendants' assertion. In the court's March 13, 2019
order denying plaintiff's motion for remand, it
considered those two causes of action, stated that
“plaintiff advances no other ground for remand”
and, having found that Ms. Becnel was fraudulently joined,
disregarded her citizenship for diversity purposes. ECF No.
26, at 7, 14.
has not addressed the issue until the subject motion of
August 1, 2019, filed on the virtual eve of the pretrial
conference on Monday, August 5, 2019, with trial scheduled
for September 10, 2019. It is also noted that plaintiff in
her motion to remand had asserted that she would seek leave
to file an amended complaint. On November 26, 2018 and
without leave from the court plaintiff filed a first amended
complaint, which the court struck without prejudice in its
March 13, 2019 memorandum opinion and order denying her
motion for remand. However, plaintiff stated in an unrelated
May 28, 2019 briefing, two weeks after the dispositive
motions deadline had expired, that “[w]ith the
Court's striking of Blackwood's first amended
complaint without prejudice, Blackwood's counsel
determined to wait until discovery was complete before moving
for leave to amend the complaint.” ECF No. 30, at 5.
The court notes that the discovery deadline was April 22,
Plaintiff asserts that the court was not limited to the
pleadings as they existed at the time of removal. However,
the court cannot consider post-removal filings “to the
extent that they present new causes of action or theories not
raised in the controlling petition filed in state
court.” Griggs v. State Farm Lloyds, 181 F.3d
694, 700 (5th Cir.1999). A plaintiff cannot
“‘re-plead the complaint [after removal] in an
attempt to divest this court of jurisdiction by
hindsight.'” McCoy v. Norfolk Southern Ry.
Co., 858 F.Supp.2d 639, 642 n. 1 (S.D. W.Va. 2012)
(quoting Justice v. Branch Banking & Trust Co.,
2009 WL 853993 at *7 (S.D. W.Va. Mar. 24, 2009)). The Court
must determine removal jurisdiction “on the basis of
the state court complaint at the time of removal, and . . . a
plaintiff cannot defeat removal by amending it.”
Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d
256, 265 (5th Cir. 1995). The court, accordingly, only
considered the record at the time of removal.
also contends that there was a “glimmer of hope”
to recover against the previously dismissed defendant, Nicole
Becnel, on claims of intentional infliction of emotional
distress, defamation, and violations of the West Virginia
Wage Payment and Collection Act, which were not addressed by
her in her September 11, 2019 motion for remand.
court notes that in its order denying plaintiff's motion
for remand, it acknowledged that in plaintiff's complaint
and in her motion for remand, she used some variation of the
word “defamation, ” and that all claims for
defamation must fail inasmuch as plaintiff had not asserted
what the defamatory statement was. ECF No. 26, at 14.
Plaintiff contends that there are factual allegations in the
complaint that indicate that Ms. Becnel informed others that
she was “sleeping on the job, ” thereby meeting
the requirement of identifying the defamatory statement.
However, in the plaintiff's complaint, she does not
assert a claim for defamation, but instead asserts a claim
for invasion of privacy which the court did address. The
Supreme Court of Appeals of West Virginia has stated that:
“Although closely related, defamation and invasion of
privacy remain distinct theories of recovery entitled to
separate consideration.” Crump v. Beckley
Newspapers, Inc., 320 S.E.2d 70, 81 ( W.Va. 1983).
motion for remand, plaintiff appears to use the term
defamation in connection with her claims of “false
light, ” but does not identify it as a separate cause
of action. Pl.'s Mot. Remand, ECF No. 6, at 7. Further,
in her response in opposition to the defendants' motion
to dismiss, she asserts that the factual allegations in the
complaint support her cause of action for invasion of
privacy: “false light (defamation).” Pl.'s
Resp. Defs.' Mot. Dismiss, ECF No. 8-1, at 9. She does
not contend that she intended to bring a separate claim for
defamation. Indeed, in her previously stricken first amended
complaint, plaintiff asserts a separate claim for
“Defamation and Slander, ” which supports the
court's conclusion that she did not state such a claim in
her original complaint on which the motion for remand was
decided. ECF No. 16, at 17.
court fully considered the issues raised by plaintiff in her
motion for remand. Accordingly, it is ORDERED that
plaintiff's motion ...