Viola v. The City of Morgantown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BRANDON VIOLA, et al.,

Plaintiffs,

v. Civil Action No. 1:22-CV-94

Judge Kleeh

THE CITY OF MORGANTOWN,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING

PLAINTIFFS’ MOTION TO REMAND [ECF NO. 5]

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,

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

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

1 All facts recited herein are found in Plaintiffs’ Complaint. ECF

No. 1-1.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

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.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

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

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

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.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

§ 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

2 Defendant does not suggest diversity jurisdiction under 28 U.S.C.

§ 1332 exists here; therefore, the Court will not address that

potential jurisdictional basis. Defendant must therefore

demonstrate federal question jurisdiction is present.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

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

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

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

3 “[I]t is now settled law that a case may not be removed to federal

court on the basis of a federal defense, including the defense of

pre-emption, even if the defense is anticipated in the plaintiff’s

complaint, and even if both parties concede that the federal

defense is the only question truly at issue.” Caterpillar, 482

U.S. at 393 (citing Franchise Tax Bd. of Cal. v. Constr. Laborers

Vacation Trust for S. Cal., 463 U.S. 1, 12 (1983)); see also

Burrell v. Bayer Corp., 918 F.3d 372, 381-82 (4th Cir. 2019).

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

“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 federal law are “extremely rare.” Gunn v.

Minton, 568 U.S. 251, 257 (2013). Defendant claims one such

exception – under Grable & Sons Metal Products, Inc. v. Darue

Engineering & Mfg., 545 U.S. 308 (2005) — applies here. ECF No.

1 at ¶¶ 8-9.

Under that limited exception, courts must assess whether the

“state-law claim necessarily raises a stated federal issue,

actually disputed and substantial, which a federal forum may

entertain without disturbing any congressionally approved balance

of federal and state judicial responsibilities.” Grable, 545 U.S.

at 314. “[F]ederal jurisdiction over a state law claim will lie

if a federal issue is: (1) necessarily raised, (2) actually

disputed, (3) substantial, and (4) capable of resolution in federal

court without disrupting the federal-state balance approved by

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Congress.” Gunn, 568 U.S. at 258. If all four of these

requirements are met, then jurisdiction is proper because there is

a “‘serious federal interest in claiming the advantages thought to

be inherent in a federal forum,’ which can be vindicated without

disrupting Congress’s intended division of labor between state and

federal courts.” Id. (quoting Grable, 545 U.S. at 313–314).

However, “[t]he mere presence of a federal issue in a state cause

of action does not automatically confer federal-question

jurisdiction.” Merrell Dow Pharms., Inc. v. Thompson, 478 U.S.

804, 813 (1986). Likewise, “the mere assertion of a federal

interest [is] not enough to confer federal jurisdiction.” Empire

Healthchoice, 547 U.S. at 701.

The Fourth Circuit has also provided guidance on this limited

exception to the well-pleaded complaint rule. Even if state law

creates the claims asserted by the plaintiff, federal question

jurisdiction nonetheless is proper in cases in which “the

plaintiff’s right to relief necessarily depends on resolution of

a substantial question of federal law, in that federal law is a

necessary element of one of the well-pleaded . . . claims.”

Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005). To

remove a case in which state law creates the plaintiff’s cause of

action, a defendant “must establish two elements: (1) that the

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

plaintiff's right to relief necessarily depends on a question of

federal law, and (2) that the question of federal law is

substantial.” Dixon v. Coburg Daily, Inc., 369 F.3d 811, 816 (4th

Cir. 2004).

1. Necessarily Raised

Turning to the Grable factors, the first prong of the analysis

requires the court to consider whether the “state-law claim

necessarily raise[s] a stated federal issue.” 545 U.S. at 314

(emphasis added). This is satisfied when “it appears that

some . . . disputed question of federal law is a necessary element

of one of the well-pleaded state claims.” Franchise Tax Bd., 463

U.S. at 13. Here, this factor weighs against finding an embedded

federal question sufficient to confer federal jurisdiction in the

absence of a federal claim on the Complaint’s face. Specifically,

resolution of questions arising under the FLSA may – but do not

necessarily – impact aspects of Plaintiffs’ claims. Defendant

cites the “common” allegation in each of Plaintiffs’ claims that

their pay has been reduced. ECF No. 1 at ¶ 11. The mere mention

of changes or reductions in pay or other compensation, however,

does not make FLSA issues “necessarily raised.”

Defendant’s best chance at satisfying the “necessarily

raised” factor lies in Plaintiffs’ WPCA claim. In Count 3,

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Plaintiffs allege Defendant violated the WPCA in not timely or

properly paying wages and benefits, including paid time off and

holiday pay. ECF No. 1-1. West Virginia Code § 21-5-1(c) defines

wages to include fringe benefits that are capable of calculation

and payable directly to the employee. The terms of employment

determine if such benefits qualify as wages under the WPCA. See

Syl. Pt. 5, Meadows v. Wal-Mart, Inc., 530 S.E.2d 676, 679 (W. Va.

1999). “The determination as to whether “wages,” as defined in

West Virginia Code § 21–5–1(c), are payable pursuant to the

requirements of West Virginia Code § 21–5–1 et seq. is governed by

the terms of the employment agreement, whether written or in the

form of a consistently applied unwritten policy.” Syl. Pt. 5,

Adkins v. Am. Mine Rsch., Inc., 765 S.E.2d 217, 218 (W. Va. 2014).

The terms and conditions of employment can arise from a

variety of sources. Over time, the Supreme Court of Appeals of

West Virginia has turned to employee handbooks, policy manuals and

unwritten but consistently applied payroll practices to determine

the terms and conditions of employment for WPCA purposes. See,

e.g., Gress v. Petersburg Foods, LLC, 592 S.E.2d 811, 815 (W. Va.

2003) (citing employment policies) and Ingram v. City of Princeton,

540 S.E.2d 569 (W. Va. 2000) (citing consistently applied,

unwritten payroll practices). Nothing in either West Virginia

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Code § 21-5C-1(c) or cases interpreting that definition

necessarily requires consideration of FLSA definitions or

requirements. While it is possible FLSA issues could inform or

even decide the determination of wages, as defined under the WPCA,

it is not a necessary component of any statutory definition

implicated in Plaintiffs’ Complaint.

The parties spend significant time discussing the impact of

Harper v. Massey Coal Services, Inc., No. 2:10-0894, 2011 WL 322558

(S.D.W. Va. Feb. 2, 2011), on this matter. In Harper, Judge

Copenhaver addressed whether an employee’s claims under the West

Virginia Minimum Wage and Maximum Hour Standards, W. Va. Code § 21-

5C-1 et seq., presented an embedded federal question such that

removal, despite the absence of a federal claim on the complaint’s

face, was proper. He reasoned that because the plaintiffs’ claim

depended upon their ability to satisfy the statutory definition of

“employer,” which expressly relies upon federal wage and hour law,

the Grable-Pinney factors were satisfied such that the Southern

District of West Virginia had “arising under” jurisdiction.4

4 In Harper, the relevant statutory definition specifically

excluded any “employer . . . if 80 percent of the persons employed

by him are subject to any federal act relating to minimum wage,

maximum hours and overtime compensation.” West Virginia Code § 21-

5C-1(e). The WPCA contains no similar reference to federal law in

either its definitions or otherwise.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Specifically, Judge Copenhaver noted the plaintiffs bore the

burden to prove they brought their claim against a “covered

employer” triggering the statute’s application and, should the

plaintiffs fail there, no claim under the Minimum Wage and Maximum

Hour Standards would lie. He found that definition so dependent

upon federal law that its determination was necessary, disputed,

and substantial and that exercising jurisdiction would not disturb

the balance between federal-state judicial responsibilities.5

Contrary to Defendant’s position, this case presents quite a

different scenario from Harper. The statutory definitions

applicable to Plaintiffs’ WPCA claims, unlike the definitions at

issue in Harper, do not reference or rely upon any federal

statutory scheme. As noted, questions of federal wage and hour

law may not even be relevant to Plaintiffs’ WPCA claims. This is

not to say the FLSA will have no bearing upon whether Plaintiffs

state viable WPCA claims. Instead, the Court cannot conclude that

adjudication of any federal question including the FLSA is so

necessary to Plaintiffs’ claims that exercise of this “rare” form

of jurisdiction would be proper. See Empire Healthcare, 547 U.S.

5 Plaintiffs dedicate significant effort to assailing Judge

Copenhaver’s reasoning and conclusion including citation to other

district court decisions reaching a contrary result. As the

specific question presented in Harper is not present here, this

Court need not address that issue.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

at 701 (“In sum, Grable emphasized that it takes more than a

federal element ‘to open the “arising under” door.’” (citing

Grable, 545 U.S. at 313)); Eller v. Jackson Kelly PLLC, 2011 WL

672054, at *9 (S.D.W. Va. Feb. 14, 2011) (Johnston, J.) (“Not one

element of Plaintiffs’ claims requires resolution of this, or any

other, federal question.”).

Plaintiffs’ other claims do not offer any better support for

Defendant’s position. The remaining claims, although referencing

changes or reduction in pay or benefits, allege improper motives

for doing so and appear to largely be adverse action employment

claims. Certainly, no essential element of any of those causes of

action specifically incorporates or relies upon any federal

question, FLSA or otherwise. Like the WPCA claim asserted in Count

3, the remaining claims may – but do not necessarily – require

adjudication of federal questions.6 Defendant has failed to

6 For the same reasons discussed infra, the Court finds that any

potential federal question implicated by Plaintiffs’ other claims

is not sufficiently substantial to warrant assertion of “arising

under” jurisdiction. The issues raised, in particular Defendant’s

motive in allegedly altering the terms and conditions of

Plaintiffs’ employment, are so fact-specific that they limit the

applicability of the claimed federal dispute here to this case

alone. Conjuring “arising under” jurisdiction pursuant to 28

U.S.C. § 1331 here would also disrupt the Congressionally-sought

balance between federal and state courts. Plaintiffs’ claims

against their employer are not uncommon and, by and large, are

litigated in West Virginia courts every day. There is nothing

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

demonstrate Plaintiffs’ claims necessarily raise federal issues

creating federal jurisdiction. See Ryan Env't, Inc. v. Hess Oil

Co., 718 F. Supp. 2d 719, 722 (N.D.W. Va. 2010) (Keeley, J.)

(“Removal statutes are strictly construed against the party

seeking removal, and the burden of establishing jurisdiction rests

on that party.”).

2. Substantial Federal Issue

Turning to the “substantial” factor, the Court finds

Defendant fails to satisfy this Grable element as well. As Judge

Goodwin of the Southern District of West Virginia summarized,

the Supreme Court in Empire Healthchoice

outlined the factors “that affect the

‘substantiality’ [i.e., the second Grable

prong] of a federal interest in that case or

issue: (1) whether the case includes a federal

agency, and particularly, whether that

agency’s compliance with the federal statute

is in dispute; (2) whether the federal

question is important (i.e., not trivial); (3)

whether a decision on the federal issue will

resolve the case (i.e., the federal question

is not merely incidental to the outcome); and

(4) whether a decision as to the federal

question will control numerous other cases

(i.e., the issue is not anomalous or

isolated).

apparent in this record justifying let alone requiring federal

adjudication of such claims as Defendant urges.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Craddock v. Adon Network, Inc., No. 2:10-CV-01401, 2011 WL 1601331,

at *4 (S.D.W. Va. Apr. 27, 2011) (citing Mikulski v. Centerior

Energy Corp., 501 F.3d 555, 570 (6th Cir. 2007)).

No federal agency is party to this litigation nor is any such

agency’s compliance with federal law at issue. As discussed above,

the potential federal question is just that – potentially at issue.

At this juncture, it is difficult to define what federal question

may possibly be implicated in Plaintiffs’ claims. Neither of the

first two factors counsel in favor of finding a substantial federal

issue at play here.

With respect to the last two factors, this Court has also

previously considered the expansion of removal jurisdiction under

the Grable rubric. As Judge Bailey summarized,

The Supreme Court of the United States has

distinguished cases that involve “nearly ‘pure

issue[s] of law’ . . . ‘that [can] be settled

once and for all’” from those that are “fact-

bound and situation specific.” Id. at 700–

01. Or, as Justice Cardozo put it, a “common-

sense accommodation of judgment to [the]

kaleidoscopic situations” that present a

federal issue, in “a selective process which

picks the substantial causes out of the web

and lays the other ones aside.” Gully v. First

Nat. Bank in Meridian, 299 U.S. 109, 117–18

(1936).

Adkins Energy, Inc. v. Dominion Transmission Inc., No. 5:16-CV-

151, 2017 WL 462009, at *3 (N.D.W. Va. Feb. 2, 2017) (Bailey, J.).

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

The final factor “requires the court to determine whether

resolution of the alleged federal issue would control numerous

other cases, not whether resolution of the question of federal

subject-matter jurisdiction will govern numerous other cases.”

Craddock, 2011 WL 1601331, at *6 n.1. This case, like many wage

and hour claims, whether brought expressly under the FLSA or state

law like the WPCA, is quite “fact-bound and situation-specific.”

Empire Healthcare, 547 U.S. at 700. The Complaint sets out a

lengthy and detailed factual chronology upon which Plaintiffs rely

here. The non-wage and hour claims focus on Defendant’s state of

mind and motivation. Claims involving such elements are often

fact-intensive jury questions. See Magill v. Gulf & W. Indus.,

Inc., 736 F.2d 976, 979 (4th Cir. 1984) (“Summary judgment is

seldom appropriate in cases in which particular states of mind are

decisive elements of claim or defense, because state of mind is so

often proved by inferences from circumstantial evidence and by

self-serving direct evidence.”). There is no “pure” question of

federal law that would resolve not only this dispute but others in

the future. These factors likewise weigh against finding a

substantial federal question here that requires exercise of

jurisdiction under Grable-Pinney.

3. Federal-State Judicial Balance

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Lastly, the Court must consider whether Defendant can satisfy

the final prong: “that removal of this state-law case and the

multitude of cases just like it would be consistent with the

congressionally approved balance of federal and state judicial

responsibilities.” Burrell, 918 F.3d at 386 (citing Grable, 545

U.S. at 314). “The Supreme Court has ‘consistently emphasized

that, in exploring the outer reaches of [section] 1331,

determinations about federal jurisdiction require sensitive

judgments about congressional intent, judicial power, and the

federal system.’” Rose Acre Farms, Inc. v. N. Carolina Dep’t of

Env’t & Nat. Res., 131 F. Supp. 3d 496, 504 (E.D.N.C. 2015)

(quoting Merrell Dow, 478 U.S. at 810).

Defendant’s proposed exercise of jurisdiction here would

inappropriately upset the balance between federal and state

courts. Plaintiffs arguably could have asserted certain of their

grievances under the auspices of the FLSA. They consciously chose

a different path.7 Here, Defendant seeks to usurp that choice via

7 Plaintiffs, of course, do so at their own potential peril. The

WPCA “does not establish a particular rate of pay, . . . [but]

instead, it controls the manner in which employees in West Virginia

are paid wages, and it imposes on employers an obligation to pay

employees’ wages in a timely manner.” Gregory v. Forest River,

Inc., 369 F. App’x 464, 465 (4th Cir. 2010) (internal citations

and quotations omitted). Regardless, Plaintiffs, as masters of

their Complaint, are free to assert claims of their choosing and

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

an “extremely rare” gambit – injecting a federal question into a

complaint devoid of any such issue but overflowing with state law

causes of action. To sanction this procedural maneuver would be

to “federalize” any claim under the WPCA. See, e.g., Hanna v. CFL

Pizza, LLC, No. 6:11-CV-1837-ORL-22, 2012 WL 515875, at *6 (M.D.

Fla. Jan. 30, 2012); Fabro v. Aqua-Aston Hospitality, LLC, No. CV

16-00467 DKW-RLP, 2017 WL 449587, at *4 (D. Haw. Feb. 2, 2017).

This would offend any concept of federalism and potentially prompt

a flood of state-law WPCA and garden-variety employment claims

being removed to a federal forum in the absence of express federal

question jurisdiction when the circuit courts of West Virginia are

more than capable of adjudicating such disputes. See Empire

Healthchoice, 547 U.S. at 701 (“The state court in which

the . . . suit was lodged is competent to apply federal law, to

the extent it is relevant . . .”). This factor likewise requires

remand here.

Courts “are obliged to construe removal jurisdiction strictly

because of the “significant federalism concerns”

implicated. . . . Therefore, if federal jurisdiction is doubtful,

a remand to state court is necessary.” Maryland Stadium Auth. v.

to forego claims that may subject them to undesired forums.

Defendant cannot so easily substitute its choice for Plaintiffs’.

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005) (internal

quotations and citations omitted). There is no doubt here after

assessing the relevant factors. The Court finds Defendant has

failed to satisfy the Grable factors demonstrating an embedded

federal question exists in Plaintiffs’ Complaint investing this

Court with jurisdiction under 28 U.S.C. § 1331. Plaintiffs’ claims

do not necessarily raise a disputed and substantial federal issue.

Moreover, asserting jurisdiction over Plaintiffs’ state law claims

would inappropriately affect the balance between federal and state

courts. Therefore, this Court lacks subject matter jurisdiction

and remand is necessary.

C. Attorneys’ Fees

In addition to their request for remand, Plaintiffs also ask

this Court to award them their attorneys’ fees. “An award of

attorneys’ fees under § 1447 is not automatic but should only be

awarded where ‘the removing party lacked an objectively reasonable

basis.’” Henry v. Kingwood Mining Co., LLC, No. 1:09CV16, 2009 WL

10676866, at *1 (N.D.W. Va. June 15, 2009) (Keeley, J.) (quoting

Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005)).

Although the Court granted Plaintiffs’ remand motion, the Court

does not believe that Defendant so lacked an objectively reasonable

basis in seeking removal that an award of fees and costs is

PLMAEIMNOTRIAFNFDSU’M MOOPTIINOINO NT OA NRDE MOARNDDE R[ EGCRFA NNTOI.N G5 ]

warranted here. Very little, if any, authority addressing the

WPCA’s potential for satisfying embedded federal question

jurisdiction exits. The same can be said of Plaintiffs’ other

claims. In fact, most of the cases cited by the parties and

discussed herein by the Court deal with other wage and hour

statutes. Among those, there exists a divergence of thought on

whether other West Virginia statutes present sufficiently

substantial federal questions to constitute “arising under”

jurisdiction. Compare Harper, 2011 WL 322558, with Craddock, 2011

WL 1601331. Considering all relevant circumstances, Defendant’s

removal does not satisfy the lofty standard required to impose an

award of attorneys’ fees and costs despite the Court’s remanding

the matter to the Circuit Court of Monongalia County. Plaintiffs’

request for attorneys’ fees is DENIED.

D. Other Pending Motions

Plaintiffs filed a Motion to Dismiss Defendant’s

counterclaims [ECF No. 6]. This Court has no authority to consider

this motion. “Unfortunately, however, without either diversity

or federal question jurisdiction, any judgment rendered by this

Court would be immediately vacated on appeal for lack of subject

matter jurisdiction.” Inkrote v. Prot. Strategies Inc., No. 3:09-

CV-51, 2009 WL 3295042, at *8 (N.D.W. Va. Oct. 13, 2009). Thus,

Viola et al. v. Morgantown 1:22-CV-94

MEMORANDUM OPINION AND ORDER GRANTING

PLAINTIFFS’ MOTION TO REMAND [ECF NO. 5]

the Court directs the Clerk to TERMINATE the motion to dismiss

from the Court’s docket.

IV CONCLUSION

For the reasons discussed above, the Motion to Remand [ECF

No. 5] is GRANTED. This action is hereby REMANDED to the Circuit

Court of Monongalia County, West Virginia.

The Clerk shall STRIKE this action from the Court’s active

docket and TERMINATE Plaintiffs’ Motion to Dismiss [ECF No. 6] as

the Court lacks subject-matter jurisdiction to decide it.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record and the Circuit Clerk of Monongalia County, West

Virginia.

DATED: May 4, 2023 Tun % Ko.

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

23