Lee v. West Virginia University

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MARK R. LEE, M.D.,

Plaintiff,

v. CIVIL ACTION NO. 1:22-CV-156

(KLEEH)

WEST VIRGINIA UNIVERSITY, WEST VIRGINIA

UNIVERSITY SCHOOL OF MEDICINE, and

WEST VIRGINIA UNIVERSITY MEDICAL CORPORATION,

d/b/a University Health Associates,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15]

AND DENYING MOTION TO STRIKE [ECF NO. 25]

On December 16, 2022, the plaintiff, Dr. Mark Lee (“Dr. Lee”)

commenced this employment discrimination action against the

defendants, West Virginia University (“WVU”), West Virginia

University School of Medicine (“WVUSOM”),1 and West Virginia

University Medical Corporation doing business as University Health

Associates (“UHA”). There are three motions pending before the

Court: (1) the WVU defendants’ motion to dismiss Dr. Lee’s claims

against them for lack of jurisdiction and failure to state a claim;

(2) the WVU defendants’ motion to strike Dr. Lee’s response to

their motion to dismiss as untimely; and (3) the joint motion of

the WVU defendants and UHA to stay the Court’s Scheduling Order.

1 West Virginia University and West Virginia University School of Medicine are

referred to collectively herein as “the WVU defendants.”

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

These motions are fully briefed and ripe for review. For the

reasons that follow, the Court DENIES the motion to strike [ECF

No. 25], GRANTS the motion to dismiss [ECF No. 12], and DENIES AS

MOOT the motion to stay [ECF No. 15].

I. Factual Allegations

Dr. Lee is a pediatric neurosurgeon who became a member of

the WVUSOM faculty in 2018 [ECF No. 1 at ¶¶ 18, 22].2 After being

heavily recruited by the WVU defendants, UHA, and prominent members

of the WVU community, he accepted the position of Chair of the

Department of Neurosurgery and also agreed to serve as a clinical

faculty member. Id. at ¶¶ 22, 26. At that time, he was fifty-

nine years old. Id. at ¶ 27. Dr. Lee was jointly employed by WVU

and UHA, the clinical practice plan for the faculty of the WVUSOM;

he served as a full-time faculty member of the WVSOM as well as a

full-time employee of UHA. Id. at ¶¶ 37, 42. As such, he entered

separate employment contracts with both. Id. at ¶¶ 14-15.

His WVU contract, dated May 31, 2018, stated that Dr. Lee had

been appointed Chair of Neurosurgery and Clinical Faculty

Professor in the Department of Neurosurgery [ECF No. 1-2 at 2].

It provided that his appointment would begin on August 31, 2018,

2 As it must, the Court construes the following facts in the light most favorable

to Dr. Lee. See De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013).

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

and remain in effect until June 30, 2019, subject to renewal. Id.

at 5. It further required Dr. Lee to enter UHA’s Professional

Services Agreement (“PSA”) [ECF Nos. 1-2 at 3; 1-3 at 10].

This PSA outlined Dr. Lee’s duties and obligations as a UHA

physician [see ECF No. 1-3]. It indicated that his term of

employment would run from August 31, 2018, through June 30, 2019.

Id. at 5. His term of employment would automatically renew for

successive one-year terms unless either party gave written notice

of their intent not to renew the agreement at least ninety (90)

days prior to the end of the then-current term. Id.

According to Dr. Lee, he excelled as Chair of Neurosurgery

[ECF No. 1 at ¶¶ 43-50]. He not only maintained all necessary

licensing, credentialling, and board certification but he also

established additional outreach clinicals for

neurosurgery exceeding agreed upon benchmarks; recruited

new faculty; increased growth beyond state benchmarks

for inpatient discharges, surgical volume, and

outpatient visits at the WVU main campus; exceeded block

utilization standards; decreased clinic lag beyond

initially stated goals; greatly improved neurosurgery

mortality well beyond expectations; grew research and

clinical trial opportunities; and exceeded all patient

satisfaction criteria.

Id. at ¶¶ 45-46. By his third year, he had achieved most, if not

all, of the stated benchmarks and also had received favorable

performance reviews and been awarded the maximum allowable bonus

each year. Id. at ¶¶ 47-50.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

Then, in May 2021, Dr. Lee was approached by Dr. Clay Marsh,

Executive Dean of Health Sciences at WVU and Dean of the WVUSOM;

Dr. Ali Rezai, Executive Chair of the WVU Rockefeller Neuroscience

Institute (“RNI”); and Dr. Michael Edmond, the Chief Executive

Officer of UHA, about becoming the Executive Director of the soon-

to-be-started Pediatric Neuroscience Center of Excellence. Id. at

¶ 51. They explained that if Dr. Lee accepted this position, he

could no longer serve as the Chair of Neurosurgery. Id. at ¶ 52.

During this discussion, Dr. Marsh indicated his desire to recruit

a “much younger” Chair who could stay in the position for ten (10)

to fifteen (15) years and who would be assuming their first Chair

position. Id. at ¶¶ 54-55.

Dr. Lee initially expressed interest in the Executive

Director position but ultimately declined in June 2021. Id. at

¶¶ 53, 56-57. Nevertheless, Dr. Marsh advised Dr. Lee that he

would still be replacing Dr. Lee with a younger Chair of Neurology

who would transition into the role in August 2022. Id. at ¶¶ 58-

59. He also asked Dr. Lee to participate in the search. Id.

Upon realizing that his age had become a factor in losing his

position as Chair of Neurosurgery, Dr. Lee reported Dr. Marsh’s

age-based discriminatory comments and actions to WVU by letters on

July 29, 2021, and August 12, 2021. Id. at ¶¶ 60-63. He also

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

reported the conduct to WVU’s Human Resources Department, lodged

a Complaint with WVU’s Office of Equity Assurance, and filed a

Faculty Grievance. Id. at ¶¶ 76-78. Further, on August 20, 2021,

Dr. Lee filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”) against the WVU defendants and UHA

alleging age-based discrimination and retaliation. Id. at ¶ 75.

He filed the same claim with the West Virginia Human Rights

commission (“WVHRC”). Id.

Dr. Lee suffered several adverse employment actions in

retaliation. First, on August 18, 2021, the WVU defendants

informed Dr. Lee that he would not be allowed to transition out of

the Chair position in August 2022, but instead would be removed

effective September 1, 2021. Id. at ¶¶ 64-66. This expedited

removal without cause violated the notice provisions of the PSA

and the WVU faculty handbook. Id. at ¶¶ 68-70. Second, he was

terminated as Professor at the WVUSOM and “downgraded from a 1.0

full-time equivalent (FTE) with full benefits to being a courtesy

faculty member providing clinical services at only a .40 FTE

without benefits.” Id. at ¶ 67. Third, the WVU defendants removed

Dr. Lee from the physical office he used as Chair and gave him

limited office space with reduced and limited administrative

assistance following his demotion. Id. at ¶ 81. Finally, the WVU

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

defendants no longer supported his entrepreneurial activities and

assigned one of his prior subordinates to micromanage his schedule

and performance. Id. at ¶¶ 82-83.

As a result of this age-based discrimination and retaliation,

Dr. Lee was constructively discharged and left WVU and UHA on

January 19, 2022. Id. at ¶ 85. Although the WVU defendants

appointed an interim Chair, it distributed Dr. Lee’s duties among

three faculty members. Id. at ¶¶ 88-90. According to Dr. Lee,

the WVU defendants have spread false and misleading information

about his discharge, which has harmed his reputation within the

WVU community and beyond. Id. at ¶¶ 71-74.

II. Procedural History

The EEOC and the WVHRC issued right to sue letters on

September 20, 2022, and December 14, 2022, respectively [ECF Nos.

1-1, 1-4]. Thereafter, Dr. Lee commenced this action asserting

five causes of action [ECF No. 1]. In Counts I and III, he alleges

that UHA’s discriminatory acts and retaliation violated the Age

Discrimination in Employment Act of 1967 (“ADEA”), 29

U.S.C. § 623(a). Id. at ¶¶ 91-104, 119-128. In Counts II and IV,

he alleges that the discrimination and retaliation of the WVU

defendants and UHA also violated the West Virginia Human Rights

Act (“WVHRA”), W. Va. Code § 5-11-3. Id. at ¶¶ 105-118, 129-139.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

In Count V, Dr. Lee alleges that UHA breached the PSA by

terminating his full-time employment without notice. Id. at ¶¶

140-147.

As relief, Dr. Lee seeks monetary damages for the compensation

and benefits he should have received under his contracts with WVU

and UHA in his role as Chair through August 31, 2023. Id. at

p. 21. He also requests compensatory damages for the loss of the

opportunity to continue serving as Chair, to be reappointed, or to

serve as Chair elsewhere, as well as the loss of future earnings,

reputational harm, and humiliation. Id. Finally, Dr. Lee seeks

punitive damages, pre- and post-judgment interest, costs, and

attorneys’ fees. Id.

The WVU defendants moved to dismiss Counts II and IV,

contending that they are immune from Dr. Lee’s claims [ECF No.

12]. Shortly thereafter, the Court entered its Scheduling Order

[ECF No. 14], and the WVU defendants and UHA jointly moved to stay

discovery pending a ruling on the motion to dismiss [ECF No. 15].

After Dr. Lee responded to the motion to dismiss [ECF No. 22], the

WVU defendants moved to strike his brief [ECF No. 25].

III. Motion to Strike

The Court first must address the pending motion to strike.

The WVU defendants filed their motion to dismiss on February 28,

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

2023 [ECF No. 25]. Dr. Lee responded in opposition on March 21,

2023 [ECF No. 22]. The WVU defendants now move the Court to strike

this responsive pleading as untimely because it was not filed

within fourteen (14) days as required by the Local Rules of Civil

Procedure.

Local Rule 7.02(b)(1) states that “responses to motions shall

be filed and served within fourteen (14) days from the date of

service of the motion.” But “the judicial officer to whom the

motion is addressed may modify the times for serving memoranda.”

L.R. Civ. P. 7.02(b)(4).

Pursuant to Local Rule 7.02(b)(1), Dr. Lee should have filed

his response no later than March 14, 2023. He contends, however,

that he timely filed his brief because the Court’s Scheduling

Order, extended the time to respond to dispositive motions to

twenty-one (21) days. In support, he points out that the

Scheduling Order was issued after the WVU defendants filed their

motion to dismiss but before fourteen (14) days had passed and

that the WVU defendants and UHA jointly moved to stay the

Scheduling Order because a dispositive motion had been filed.

The Court did not intend the Scheduling Order to extend Dr.

Lee’s deadline to respond to the motion to dismiss. Specifically,

the Order directed the parties to complete discovery no later than

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

November 30, 2023, to file any dispositive motions no later than

January 12, 2024, and to file any responses to such motions within

21 days [ECF No. 14 at 1]. Although the Order did not distinguish

motions to dismiss from other dispositive motions, it directed the

parties to file their dispositive motions after the close of

discovery unless previously granted leave. Thus, the Scheduling

Order’s dispositive motions deadlines did not relate to the WVU

defendants’ pending motion to dismiss, and Dr. Lee’s response in

opposition was untimely.

Even so, the Court finds that Dr. Lee has demonstrated

excusable neglect for filing his response within twenty-one (21)

days rather than fourteen (14) days. It accordingly accepts Dr.

Lee’s response and DENIES the WVU defendants’ motion to strike

[ECF No. 25].

IV. Motion to Dismiss

The Court turns next to consider the motion to dismiss Counts

II and IV of Dr. Lee’s complaint [ECF No. 12]. In these counts,

Dr. Lee alleges that the WVU defendants violated the WVHRA by

discriminating against him on the basis on his age and by

retaliating against him for reporting this discrimination. The

WVU defendants contend that these claims should be dismissed

because they are entitled to sovereign immunity under the Eleventh

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

Amendment.

A. Standards of Review

The Fourth Circuit has not yet resolved whether a motion to

dismiss based on sovereign immunity is properly considered

pursuant to Federal Rule of Civil Procedure 12(b)(1) or Federal

Rule of Civil Procedure 12(b)(6). See Andrews v. Daw, 201 F.3d

521, 524 n.2 (4th Cir. 2000) (collecting cases). “The recent

trend, however, appears to treat Eleventh Amendment immunity

motions under Rule 12(b)(1).” Whitmore v. W. Reg’l Jail, 2019 WL

3756396, at *2 (S.D.W. Va. July 19, 2019) (quoting Haley v. Va.

Dep’t of Health, 2012 WL 5494306, at *2 n.2 (W.D. Va. Nov. 13,

2012)).

1. Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1), a defendant may move to dismiss a claim

for lack of subject matter jurisdiction. If the Court lacks

subject matter jurisdiction it must dismiss the action. See Fed.

R. Civ. P. 12(h)(3). Because the Court’s power to hear the case

is at issue in a Rule 12(b)(1) motion, it is free to weigh the

evidence to determine the existence of its jurisdiction. Adams v.

Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). But when, as here, a

party challenges the sufficiency-rather than truthfulness- of a

complaint’s allegations to sustain jurisdiction “the plaintiff, in

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

effect, is afforded the same procedural protection as he would

receive under a Rule 12(b)(6) consideration.” Id.

2. Federal Rule of Civil Procedure 12(b)(6)

A defendant may move to dismiss a complaint under Rule

12(b)(6) on the ground that it does not “state a claim upon which

relief may be granted.” When reviewing the sufficiency of a

complaint, the district court “must accept as true all of the

factual allegations contained in the complaint.” Anderson v. Sara

Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.

Pardus, 551 U.S. 89, 94 (2007)). “[A] complaint must contain

‘enough facts to state a claim to relief that is plausible on its

face.’” Anderson, 508 F.3d at 188 n.7 (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 547 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A motion to dismiss “does not resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992).

B. Applicable Law

The Eleventh Amendment provides that “[t]he Judicial power of

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” It “largely shields States from suits in

federal court without their consent, leaving parties with claims

against a State to present them, if the State permits, in the

State’s own tribunals.” Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30, 39 (1994). Eleventh Amendment immunity extends to

state agencies and other governmental entities that can be viewed

as “arm [s] of the State.” Md. Stadium Auth. v. Ellerbe Becket

Inc., 407 F.3d 255, 261 (4th Cir. 2005) (citing P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, (1993)

(“[A] State and its ‘arms’ are, in effect, immune from suit in

federal court.”)).

The Fourth Circuit has identified six exceptions to the

doctrine of sovereign immunity:

First, sovereign immunity does not bar a suit where the

state has given consent. Second, states remain subject

to suits brought by the Federal Government or by other

states. Third, Congress retains the power to abrogate

the sovereign immunity of the states pursuant to the

Fourteenth Amendment’s Section 5 enforcement power.

Fourth, sovereign immunity does not bar private suits

against municipal corporations or other lesser

governmental entities. Fifth is the Ex parte Young

exception, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714

(1908), which allows certain private suits against state

officers if the suit seeks only injunctive or

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

declaratory relief to remedy an ongoing violation of

law. Sixth, state officers may be sued for money damages

in their individual capacity, so long as the relief is

sought from the officer personally. Alden, 527 U.S. at

755–57, 119 S.Ct. 2240.

S.C. State Ports Auth. v. Fed. Mar. Comm’n, 243 F.3d 165, 170 (4th

Cir. 2001), aff’d, 535 U.S. 743 (2002).

“Because a defendant otherwise protected by the Eleventh

Amendment can waive its protection, . . . sovereign immunity is

akin to an affirmative defense, which the defendant bears the

burden of demonstrating.” See Hutto v. S.C. Ret. Sys., 773 F.3d

536, 543 (4th Cir. 2014).

C. Analysis

1. The WVU defendants are entitled to sovereign immunity

Here, it is undisputed that the WVU defendants are state

agencies or arms of the state which qualify for protection under

the Eleventh Amendment. See Syl. Pt. 1, Univ. of W. Va. Bd. of

Tr. ex rel. W. Va. Univ. v. Graf, 516 S.E.2d 741, 742 (W. Va. 1998)

(“The Board of Governors of West Virginia University is a State

agency, and, as such, is an arm of the State.”); W. Va. Univ. Bd.

of Governors ex rel. W. Va. Univ. v. Rodriguez, 543 F. Supp. 2d

526, 535 (N.D.W. Va. 2008) (“Decisions of the West Virginia Supreme

Court of Appeals make it abundantly clear that West Virginia deems

West Virginia University to be an arm of the state.”). Thus, for

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

the Court to have jurisdiction over Dr. Lee’s claims against the

WVU defendants, one of the six exceptions to sovereign immunity

must apply.

The second through sixth exceptions clearly do not apply to

this action. Dr. Lee brings this case as a private citizen.

Congress has not abrogated West Virginia’s sovereign immunity

related to WVHRA claims. Dr. Lee has not sued a municipal

corporation or other lesser governmental entity. Nor has he sued

a state official in his official capacity to prevent an ongoing

violation of federal law or a state official in their individual

capacity for ultra vires conduct.

The only question for the Court then is whether the State of

West Virginia has waived its immunity in this case. A state may

waive its sovereign immunity by constitutional provision or

statute. Westinghouse Elec. Corp. v. W. Va. Dep’t of Highways,

845 F.2d 468, 470 (4th Cir. 1988). Because waiver cannot be found

by implication, the state must unequivocally express its intent to

submit to federal jurisdiction. Sossamon v. Texas, 563 U.S. 277,

284-85 (2011). As such, Federal courts must “indulge every

reasonable presumption against” a finding that a state waived its

sovereign immunity. Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 682 (1999).

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

The State of West Virginia has not consented to being sued in

federal court for violations of the WVHRA. Article VI, Section 35

of the West Virginia Constitution clearly states that “[t]he State

of West Virginia shall never be made defendant in any court of law

or equity, except the State of West Virginia, including any

subdivision thereof or any municipality therein. . . .” Although

the State has adopted the WVHRA and has consented to suits alleging

violations of the act before its own courts, this consent does not

waive its sovereign immunity in federal courts such as this. See

Westinghouse Elec. Corp., 845 F.2d at 471.

The Court therefore concludes that the State of West Virginia

has not adopted any constitutional provision or statute

unequivocally consenting to federal jurisdiction for violations of

the WVHRA. As such, it has not waived its sovereign immunity.

Because none of the exceptions apply, the Court lacks jurisdiction

to resolve Dr. Lee’s WVHRA claims against the WVU defendants.3

2. Supplemental jurisdiction cannot overcome sovereign

immunity

Dr. Lee asserts that, despite the WVU defendants’ sovereign

immunity, the Court has supplemental jurisdiction over his claims

pursuant to 28 U.S.C. § 1367. Specifically, he contends that he

3 Alternatively, the Court finds that Dr. Lee has failed to state a claim against

the WVU defendants upon which relief may be granted.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

must be permitted to proceed with his claims against the WVU

defendants because he has viable state and federal claims against

UHA arising from a common nucleus of operative fact. The Supreme

Court of the United States already has dismissed this argument.

Section 1367(a) provides that “in any civil action of which

the district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy.

. . .” But, as the Supreme Court has explained, this “grant of

jurisdiction does not extend to claims against nonconsenting state

defendants.” Raygor v. Regents of the Univ. of Minn., 534 U.S.

533, 542 (2002). Accordingly, supplemental jurisdiction cannot

overcome the WVU defendants’ sovereign immunity and the Court lacks

jurisdiction to hear Dr. Lee’s claims against them.

Dr. Lee complains that requiring him to litigate his claims

against the WVU defendants in state court, while he simultaneously

litigates nearly identical claims against UHA in this Court does

not promote judicial economy, would require the parties to expend

unnecessary resources, and could result in conflicting outcomes

for claims supported by identical facts. These are problems of

his own creation. Dr. Lee could have filed his complaint in a

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

state court which possesses the authority to resolve all of his

claims, state and federal. Instead, he filed in this Court of

limited jurisdiction.

D. Summary

The WVU defendants enjoy sovereign immunity from Dr. Lee’s

WVHRA claims, no exception to sovereign immunity applies, and

supplemental jurisdiction cannot overcome the WVU defendants’

sovereign immunity. Thus, pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6), the Court DISMISSES WITHOUT

PREJUDICE4 Counts II and IV of Dr. Lee’s complaint as they relate

to the WVU defendants.5

V. Motion to Stay

The Court entered its Scheduling Order on March 9, 2023 [ECF

No. 14]. The next day, the WVU defendants and UHA jointly moved

to stay this Order pending a ruling on the motion to dismiss [ECF

No. 15]. Based on its rulings herein, the Court DENIES AS MOOT

4 The WVU defendants sought dismissal of Dr. Lee’s claims against them with

prejudice. However, “a dismissal based upon Eleventh Amendment immunity [is]

without prejudice.” Hong Tang v. Univ. of Baltimore, 782 F. App’x 254, 255

(4th Cir. 2019) (citing Fed. R. Civ. P. 41(b); Allen v. Cooper, 895 F.3d 337,

358 (4th Cir. 2018)).

5 Even if the WVU defendants were not immune from Dr. Lee’s claims, the Court

would dismiss WVUSOM as a party to this action because it “is simply a component

of West Virginia University, organized and ultimately managed by the WVU Board.

As such, a suit against [WVUSOM] is a suit against the WVU Board, and [WVUSOM]

cannot be subject to suit as a separate entity.” Al-Asbahi v. W. Va. Univ. Bd.

of Gov., 2017 WL 402983, at *9 (N.D.W. Va. Jan. 30, 2017), aff’d, 724 F. App’x

266 (4th Cir. 2018).

LEE V. WVU ET AL. 1:22CV156

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

[ECF NO. 12], DENYING AS MOOT MOTION TO STAY [ECF NO. 15],

AND DENYING MOTION TO STRIKE [ECF NO. 25]

the joint motion to stay its Scheduling Order.

VI. Conclusion

For the reasons discussed, the Court:

(1) DENIES the WVU defendants’ motion to strike [ECF No. 25];

(2) GRANTS the WVU defendants’ motion to dismiss [ECF No. 12];

(3) DISMISSES WITHOUT PREJUDICE Counts IIT and IV of the

Complaint as they relate to the WVU defendants;

(4) DISMISSES the WVU defendants as parties to this action;

and

(5) DENIES AS MOOT the joint motion to stay [ECF No. 15].

It is so ORDERED.

The Clerk shall transmit copies of this Order to counsel of

record by electronic means.

Dated: April 20, 2023

Ton $ Bla

THOMAS §&. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

18