United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
W. VOLK UNITED STATES DISTRICT JUDGE
is Plaintiff's motion to remand with just costs and
expenses [Doc. 9].Plaintiff filed the action in the Circuit
Court of Raleigh County on September 20, 2019 [Doc. 1-1]. On
October 25, 2019, Defendant removed the action on the basis
of federal question jurisdiction under 28 U.S.C. § 1331
[Doc. 1]. Plaintiff thereafter filed a motion to remand with
just costs and expenses [Doc. 9]. At issue is whether the
action arises under the Constitution, laws, or treaties of
the United States.
Complaint alleges that Defendant violated her rights under
the West Virginia Constitution and the United States
Constitution [Doc. 1-1 at ¶¶ 18-19]. The Complaint
avers that it is “specifically . . . not filed pursuant
to 42 U.S.C. § 1983 or any related federal
statute” [Id. at ¶ 17] and disavows
“any federal cause of action to warrant the removal of
this case to federal court” [Id. at ¶
21]. Rather, the Complaint alleges “a state
constitutional tort action against Defendant . . . pursuant
to the common law of West Virginia” [Id. at
28 U.S.C. § 1331, “district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
An action arises under the laws of the United States if a
federal question appears on the face of a well pleaded
complaint. See Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). “The rule makes the plaintiff the
master of the claim; he or she may avoid federal jurisdiction
by exclusive reliance on state law.” Id. It is
a “long-settled understanding that the mere presence of
a federal issue in a state cause of action does not
automatically confer federal-question jurisdiction.”
Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804,
the first step in examining a complaint “is to discern
whether federal or state law creates the cause of
action.” Pinney v. Nokia, Inc., 402 F.3d 430,
442 (4th Cir. 2005) (quoting Mulcahey v. Columbia Organic
Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994)).
Even if the cause of action is not created by federal law,
federal jurisdiction may arise if the plaintiff's
“right to relief necessarily depends on a resolution of
a substantial question of federal law, in that federal law is
a necessary element of one of the well-pleaded . . .
claims.'” Pinney, 402 F.3d at 442 (quoting
Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 808 (1988) (internal quotation marks and citation
inquiry gives rise to federal jurisdiction in this case.
First, federal law does not create the cause of action in
question. The Complaint alleges a state constitutional tort
and specifically disavows any federal cause of action [Doc.
1-1 at ¶ 17]. Second, Plaintiff's right to relief
does not “necessarily depend on a resolution of a
substantial question of federal law.” Id.
(internal citation omitted). The Complaint alleges violations
of both the West Virginia Constitution and the United States
Constitution. The Complaint does not necessarily depend on a
resolution of a substantial question of federal law.
contends that removal is proper because Plaintiff
“assert[s] arguments which would only apply if she was
asserting violations of federal law” [Doc. 1 at ¶
5]. The Complaint asserts that, by claiming violations of the
United States Constitution, the West Virginia Governmental
Claims and Insurance Reform Act are inapplicable [Doc. 1-1 at
¶ 22]. Plaintiff's argument regarding the
application of a state law defense does not bear on whether
the action arises under federal law pursuant to 28 U.S.C.
§ 1331. See Memorandum Opinion and Order,
Taylor v. Kanawha Cty Bd. Of Educ., et al, No.
2:05-cv-00877 at 4 (S.D. W.Va. Dec. 19, 2005) (“It is
little more than an assertion by the Plaintiffs of how they
believe a state statute applies or will apply to their
case.”). Accordingly, the Court finds that it lacks
jurisdiction over the action.
motion to remand seeks costs and expenses incurred as a
result of the removal [Doc. 10 at 6-7]. “An order
remanding the case may require the payment of just costs and
any actual expenses, including attorney fees, incurred as a
result of the removal.” 28 U.S.C. § 1447(c).
“Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005).
Court finds that attorney's fees are unwarranted in this
instance. The Complaint alleges numerous violations of the
United States Constitution [Doc. 1-1 at ¶ 19]
and preemptively argues that those violations preclude the
applicability of a state law defense [Id. at ¶
22]. The cases cited by Plaintiff in support of remand are
persuasive authority and do not render Defendant's
removal effort objectively unreasonable. Indeed, in one of
those cases, Judge Copenhaver deemed a substantially similar
Complaint “a bit of an enigma.” Memorandum
Opinion and Order, Lilly v. Town of Clendenin, et
al, No. 2:05-cv-00303 at 7, 11 (S.D. W.Va. 2005)
(“The court declines to award fees and costs.
Plaintiffs ambiguous pleading provoked the removal.”).
In this instance, the Court finds that Defendant did not lack
an objectively reasonable basis for removal.
the Court ORDERS that Plaintiffs motion to
remand with just fees and costs [Doc. 9] be
GRANTED in part insofar as remand is sought
and DENIED as to the residue. The Court
further ORDERS that Defendant's motion
to dismiss [Doc. 6] and Plaintiffs motion to
stay [Doc. 8] be DENIED AS
MOOT. The Court REMANDS this action
to the Circuit Court of Raleigh County for further
Court DIRECTS the Clerk to send copies of
this Memorandum Opinion and Order to all counsel of record
and any unrepresented party and a certified copy to the Clerk
of the Circuit Court of Raleigh County.
 Also pending is Defendant's motion
to dismiss [Doc. 6]. But “questions of subject matter
jurisdiction must be decided ‘first, because they
concern the court's very power to hear the
case.'” Owen-Illinois, Inc. v. Meade, 186
F.3d 435, 442 at n.4 (4th Cir. 1999) (quoting 2 James Wm.