# Viola v. The City of Morgantown

> District Court, N.D. West Virginia · May 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10726546

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** May 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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,
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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.
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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.
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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
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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.
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§ 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.
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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
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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).
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“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
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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
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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,
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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
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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.
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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.
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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

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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.
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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.).
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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
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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726546. Public record. Not legal advice.