Viola v. City of Morgantown

1

BRANDON VIOLA, et al., Plaintiffs, v. THE CITY OF MORGANTOWN, Defendant.

Civil Action No. 1:22-CV-94

United States District Court, N.D. West Virginia

May 4, 2023

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO REMAND [ECF NO. 5]

THOMAS S. KLEEH, CHIEF JUDGE NORTHERN DISTRICT OF WEST VIRGINIA

Pending before the Court is Plaintiffs' Motion to Remand [ECF No 5]. For the reasons discussed herein, that motion is GRANTED and this matter is hereby remanded to the Circuit Court of Monongalia County, West Virginia, for any further proceedings.

I. PROCEDURAL HISTORY

Plaintiffs filed their Complaint in the Circuit Court of Monongalia County, West Virginia, on September 7, 2022. ECF No. 1 at ¶ 1. In their Complaint, Plaintiffs, members of the City of Morgantown Police Department, allege several causes of action including violations of the West Virginia Constitution, retaliation, violations of the West Virginia Wage Payment and Collection Act (“WPCA”), W.Va Code § 21-5-3, violations of the West Virginia Whistle-Blower Law, W.Va. Code § 6C-1-1, and violations of public policy. ECF No. 1-1. On September 9, 2022, Defendant City of Morgantown removed the matter to this Court claiming jurisdiction existed under 28 U.S.C. § 1331. Id. at ¶ 7.

Plaintiffs filed their Motion to Remand on October 14, 2022. [ECF No. 5]. That motion has been fully briefed [ECF Nos. 8 and 9] and is the subject of this Memorandum Opinion and Order. On October 24, 2022, Plaintiffs filed their Motion to Dismiss. [ECF No. 6]. That motion has also been fully briefed. [ECF Nos. 11 and 12].

II. FACTUAL BACKGROUND

Plaintiff Brandon Viola is a Police Officer with the Morgantown Police Department and serves as President of Monongalia-Preston Fraternal Order of Police Lodge #87.^[1] He works as a sworn law enforcement officer for the Defendant City of Morgantown. His fellow plaintiffs also work for Defendant as law enforcement officers, and all but five are members of Monongalia-Preston Fraternal Order of Police Lodge #87 (“the police union”). They are:

1. Aaron Dull

2. Alexandra Arthurs

3. Austin Bittner

4. Benjamin Forsythe

5. Bernie Molek

6. Bradley Palmer

7. Brandon Viola

8. Chad Reyes

9. Chad Shade

10. Chad Webster

11. Christopher Caldwell

12. Christopher Mayle

13. Cody Yankulic

14. Ian Nuzum

15. J. Scott Bernosky

16. Jared Blosser

17. Jared LaNeve

18. Jeremy Basinger

19. Jonathan Failinger

20. Joseph Patterson

21. Joshua Frantz

22. Joshua Nabors

23. Justin Judy

24. Kenneth Murphey

25. Kyle Sappington

26. Lucas Holder

27. Mark Trump Jr.

28. Marlee France

29. Marshall Foster

30. Matthew Solomon

31. Matthew Starsick

32. Molly Linthicum

33. Monica Brun

34. Nicholas Schmidle

35. Nicole Scott

36. Randy Michael

37. Robert Balderson

38. Ryan Stallings

39. Sikarin Iambamrung

40. Tyler Bradford

41. Tyler Holder

42. Zachary Trump

43. Zane Breakiron

In their Complaint, Plaintiffs allege they work as civil service employees of Defendant. They further allege both Defendant and they collectively are covered under the WPCA.

Plaintiffs and Defendant have been embroiled in litigation in various forums and before various tribunals for years now. In 2021, the police union filed a petition for injunctive relief and declaratory judgment, seeking to enjoin Defendant from creating a Civilian Police Review Board, which invites citizen participation in reviewing the police department's practices and investigating complaints. At the hearing in December 2021, the Honorable Susan B. Tucker granted the police union's petition for injunctive relief and declaratory judgment. In May 2022, the police union sued the Defendant again. It alleged the Defendant failed to comply with a Freedom of Information Act (“FOIA”) request related to the 2022 Wage and Compensation Study. That FOIA request sought information from Defendant to “see if the City of Morgantown is paying City employees (especially, though not limited to, Police Officers) reasonable and competitive wages.” Compl. ¶ 44. Defendant eventually provided the 2022 Wage and Compensation Study.

On July 1, 2022, Defendant reduced police officer pay and benefits. Compl. ¶ 48. On September 7, 2022, Plaintiffs filed this matter in the Circuit Court of Monongalia County, West Virginia. The same day, they filed a Demand with the Police Civil Service Commission of the City of Morgantown for a public hearing on the allegedly unlawful “new pay and compensation scheme” enacted by Defendant. ECF No. 5 at 4. On September 20, 2022, Defendant removed the case, alleging federal question jurisdiction. 28 U.S.C. §§ 1441, 1331.

Here, Plaintiffs allege Defendant violated West Virginia Constitution Article III, Section 16 in allegedly reducing police officer pay in retaliation for seeking redress of grievances in court. Compl. ¶¶ 76-82. Plaintiffs further claim Defendant violated West Virginia Code § 55-7E-2 by retaliating against them. Id. at ¶¶ 83-88. Plaintiffs further allege Defendant violated the WPCA, West Virginia Code § 21-5-1 et seq., in allegedly changing paid time off and other benefits. Id. at ¶¶ 89-106. Plaintiffs also allege violations of the West Virginia Whistleblower Law, West Virginia Code § 6C-1-1 et seq. Id. at ¶¶ 97-108. They seek an array of damages for these claims. Nowhere does Plaintiffs' Complaint cite or even mention any federal law - constitutional, statutory, or otherwise.

III. DISCUSSION

A. Removal Jurisdiction

Defendants in civil actions may remove a matter from state to federal court if the latter forum has original subject matter jurisdiction. This requirement can be based upon diversity jurisdiction or federal question jurisdiction. See 28 U.S.C. § 1441. A federal district court has diversity jurisdiction over cases between citizens of different states where the amount in controversy exceeds $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332.^[2] Further, a federal district court has federal question jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331. This jurisdiction must inhere in the plaintiff's claim, rather than be based on a defense or counterclaim. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908).

The burden of demonstrating jurisdiction generally resides with the defendant. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921). Likewise, the plaintiff's role in the context of disputes about removability is also clearly defined: the plaintiff is the master of his or her claim. See Oklahoma Tax Comm'n v. Graham, 489 U.S. 838 (1989). This means that “if [the plaintiff] chooses not to assert a federal claim . . . or properly joins a nondiverse party, defendants cannot remove the action to federal court on the ground that an alternative course of conduct available to the plaintiff would have permitted removal of the case.” 14B Charles Wright, Federal Practice and Procedure, § 3721, p. 59 (2009). Moreover, as the Fourth Circuit has indicated, if federal jurisdiction is doubtful, the case must be remanded. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).

Federal question jurisdiction exists if “a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see also W.Va. State Univ. Bd. of Governors v. Dow Chem. Co., 23 F.4th 288, 297 (4th Cir. 2022) (referencing “the well-pleaded complaint rule, which, absent diversity, prohibits removal unless a federal question appears on the face of the complaint”). As such, a defendant may not rely on a federal defense to a state law claim as a basis for removal. See Topeka Housing Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir. 2005). Thus, the well-pleaded complaint rule makes the plaintiff “the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, Inc., 482 U.S. at 392.

Even a cursory reading of Plaintiffs' complaint reveals the complete absence of any semblance of a federal claim on that pleading's face. In the Complaint, Plaintiffs assert a multitude of causes of action against their employer under West Virginia law: violation of Article 3, § 16 of the West Virginia Constitution; violation of the WPCA, W.Va. Code § 21-5-1 et seq.; violation of the state's Whistleblower Law, W.Va. Code § 6C-1-1, et seq.; and common law claims for retaliation and violation of public policy as defined under West Virginia law. See generally Compl.

B. Embedded Federal Question

As Plaintiffs accurately state in their pending motion, Defendant fails to cite any provision of the Complaint to support its claim a federal question exists here. Instead, Defendant argues it “must rely on” the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 203, to defend the matter. ECF No. 8 at 4. The City goes on to argue its “defense to these claims necessarily involves a detailed discussion of its pay policies and demonstration of how those comport with the FLSA, which applies to how Plaintiffs' hourly wage and overtime rate is determined.” Id. at 7. Presumably recognizing such defenses cannot establish the basis for proper removal,^[3] Defendant urges this Court to find an “embedded federal question” in Plaintiffs' state law claims and assert jurisdiction in this matter.

“[W]hen a claim finds its origins in state rather than federal law federal courts have identified a ‘special and small category' of cases in which arising under [federal question] jurisdiction still lies.” W.Va. State Univ. Bd. of Governors, 23 F.4th at 307 (citing Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). Exceptions to the well-established “arising under” standard of...