# Hood v. West Virginia Department of Health and Human Resources

> District Court, S.D. West Virginia · July 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10731084

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** July 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10731084

## How later opinions describe it (automated extraction)

- discussing , 490 U.S. 386, 394 (1989)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

STEPHEN HOOD, et al.,
Plaintiffs,

v. CIVIL ACTION NO. 2:22-cv-00265

CHRISTINA FARMER, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are two motions for summary judgment—one filed by
each remaining defendant in this case. [ECF No. 68 (Defendant Jeanette Frame);
ECF No. 70 (Defendant Christina Farmer)]. Because the motions raise substantially
similar arguments in favor of summary judgment, I will dispose of them together. For
reasons stated herein, the motions are GRANTED in part.
I. Background
A. Relevant Facts
Plaintiffs Mary and Stephen Hood are the biological grandparents, and now
adoptive parents, of the minor children J.H. and M.D. [ECF No. 1, ¶ 5]. This action
arises out of the allegedly unlawful removal of the minors from Plaintiffs’ custody for
several months in late 2020 and early 2021, following the birth of M.D.
Two years prior, on April 5, 2018, J.H. was born to Ms. Hood’s daughter,
Jessica Smith, who has a history of substance abuse. [ECF No. 70-1, at 12–18].1
When Ms. Smith was four months pregnant with J.H., she moved in with the Hoods,

who began taking her three times per week to receive treatment for her substance
use. [ECF No. 72-1, at 64:2–65:17]. When J.H. was born with controlled substances
in her system, Child Protective Services (“CPS”) was notified and investigated the
possible abuse and neglect of J.H. [ECF No. 70-1, at 14]. CPS made a substantiated
finding of maltreatment against Ms. Smith but ultimately concluded that J.H. could
safely remain in the home with her mother and grandparents. at 12–18.

Shortly after J.H. was born with controlled substances in her system, Ms.
Smith was kicked out of her treatment program. [ECF No. 72-1, at 69:12–17]. In May
2019, Ms. Smith was arrested for hitting Ms. Hood, who subsequently took out a
domestic violence petition against Ms. Smith. at 21:6–22:18. After her arrest, Ms.
Smith never returned to living with the Hoods, who became J.H.’s legal guardians in
September 2019. at 71:4–6, 73:11–75:21. At the time, CPS was not notified of the
domestic violence petition, the guardianship, or Ms. Smith’s resumed drug use. at

74:8–21.

1 The exhibits included with Defendant Farmer’s Motion for Summary Judgment were filed as a single
attachment and thus are not separately paginated. [ECF No. 70-1]. When citing to depositions,
the court uses the page numbers shown on the top-right corner of the reporter’s transcript. For all
other citations to the record, the court uses the page numbers assigned by the federal judiciary’s Case
Management/Electronic Case File system.
2
M.D. was born on August 25, 2020. Upon admission for delivery, Ms. Smith
tested positive for controlled substances, and Fayette County CPS was notified of
possible abuse and neglect. [ECF No. 70-1, at 3–4]. The next day, Defendant Farmer,

a CPS worker, met with Ms. Smith at the hospital to conduct an interview. at 4.
During that interview, Ms. Smith admitted to continued substance abuse, including
in the Hoods’ home. at 21–22. Following the interview, CPS implemented a
temporary protection plan pursuant to which M.D. was placed with Ms. Smith’s
brother, Dylan Smith. at 4; [ECF No. 72-1, at 77:9–79:12]. While Ms. Smith noted
that J.H. was under guardianship with her mother, Ms. Hood, she “was unable to

identify whether or not this guardianship had taken place before a family court
judge.” at 22. Defendant Farmer conducted a search via FACTS—a computer
system used at the time by the West Virginia Department of Health and Human
Resources (“DHHR”) to document abuse and neglect findings—but did not locate any
custody or guardianship orders regarding J.H. [ECF No. 72-5, at 15:12–19]. On
August 31, 2020, Defendant Farmer reported her findings to Assistant Prosecuting
Attorney William Burdick. [ECF No. 70-1, at 20–23].

On September 9, 2020, Prosecutor Burdick filed a Petition to Institute Child
Abuse and Neglect Proceedings (the “Petition”) in the Circuit Court of Fayette
County, West Virginia. at 25–30. The Petition included both J.H. and M.D. but
did not name Plaintiffs as adult respondents. It did state: “The adult respondent
mother alleges [J.H.] is in a legal guardianship with the child’s maternal

3
grandmother. However, the Department is unable to locate any legal document
stating the same.” at 15 n.1. Later that day, the Circuit Court granted the Petition
and entered an initial order transferring custody of both J.H. and M.D. to DHHR.

at 32–33.
That evening, Defendant Farmer and her supervisor, Defendant Frame,
effectuated the removal of J.H. and M.D. Earlier that day, Ms. Hood had visited M.D.
at Mr. Smith’s residence and took him to a medical clinic after noticing he was
suffering from thrush. [ECF No. 72-1, at 80:1–81:11]. While at the appointment, Ms.
Hood received a telephone call from Defendant Farmer, who asked her to bring the

children to the DHHR office because “she needed to physically look at them.” at
47:11–18. When the Hoods arrived, Defendants informed them that DHHR was
taking both children. at 49:12. The parties offer varying accounts of their
interactions at the DHHR office, but it is undisputed that the Hoods attempted to
prove their guardianship over J.H., and that Defendants tried to explain that the
guardianship could not prevent the removal. at 49:13–50:24; [ECF No. 73-2,
at 35:5–20]. Specifically, Defendants explained that they “didn’t have the power to

leave these children with [the Hoods]” because “the decision was already made by a
circuit judge.” [ECF No. 72-2, at 54:16–55:3]. Defendants also informed the Hoods
that their prior history—a CPS substantiation against Ms. Hood and Mr. Hood’s
arrest, both in the late 1990s—precluded them from keeping the children at that
time. at 54:5–55:11; [ECF No. 72-1, at 96:20–97:6].

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Ms. Hood, who had previously been unaware of her own CPS history, promptly
petitioned the DHHR Board of Review to reverse her prior substantiation. [ECF No.
70-1, at 106–11; ECF No. 72-1, at 140:23]. The Board agreed with Ms. Hood that the

substantiation had been made in error. [ECF No. 70-1, at 107–110]. Once the
substantiation was reversed, Prosecutor Burdick filed an Amended Petition in the
Fayette County Circuit Court. [ECF No. 1-3]. The Amended Petition named Plaintiffs
as adult respondents and recognized their legal guardianship of J.H., but still
requested that J.H. and M.D. be removed from Plaintiffs’ care and remain in DHHR’s
custody. Plaintiffs, by counsel, moved to dismiss the Amended Petition. [ECF No.

1-4]. Following a motions hearing on February 12, 2021, the Circuit Court entered an
order restoring legal and physical custody of J.H. to Plaintiffs and granting them
physical custody of M.D.
On July 3, 2021, Plaintiffs were granted legal guardianship over M.D. [ECF
No. 1, ¶ 69]. They legally adopted both J.H. and M.D. in February 2022. [ECF No. 72-
1, at 182:5–10].
B. Procedural History

In their Complaint, filed June 23, 2022, the Hoods initially brought thirteen
claims on behalf of J.H. and M.D. against five defendants. [ECF No. 1]. Defendant
Necco, LLC, was voluntarily dismissed from this action on August 5, 2022. [ECF No.
18]. Defendants DHHR and William Belcher each filed a motion to dismiss the claims
against them. [ECF Nos. 11, 13]. I granted DHHR’s motion in full, terminating the

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Department as a defendant. [ECF No. 45]. I granted Mr. Belcher’s motion in part,
[ECF No. 53], and Plaintiffs subsequently agreed to dismiss the remaining claims
against him, [ECF No. 63]. Defendants Farmer and Frame now move for summary

judgment on the ten claims still pending in this case: unreasonable seizure in
violation of the Fourth Amendment under § 1983 (Count I); conspiracy to commit
unreasonable seizure in violation of the Fourth Amendment under § 1983 (Count II);
deprivation of substantive due process in violation of the Fourteenth Amendment
under § 1983 (Count III); conspiracy to deprive of substantive due process in violation
of the Fourteenth Amendment under § 1983 (Count IV); negligence (Count V); gross

negligence (Count VI); negligence (Count VII); intentional infliction of
emotional distress (Count VIII); abuse of process (Count IX); and civil conspiracy
(Count X).
Before beginning the summary judgment analysis, I find it prudent to identify
the relevant facts and describe their evolution over the course of this litigation. In the
court’s Memorandum Opinion and Order ruling on Mr. Belcher’s motion to dismiss, I
reviewed the applicable immunity doctrines and explained the heavy burden they

create for plaintiffs seeking to impose liability on certain government actors. [ECF
No. 53]. Given that heavy burden, I found that Plaintiffs failed to state any viable
claim against Mr. Belcher on behalf of M.D., because the Hoods were not yet his legal
guardians and there was probable cause to suspect neglect by his biological mother,
Ms. Smith. With respect to J.H., however, I found it plausible that Plaintiffs could

6
meet their burden as to some claims. In reaching that determination, I emphasized
two critical allegations, which I was required to accept as true: first, that J.H. and
M.D. were taken from the Hoods on September 7th, prior to entry of the September

9th Circuit Court order transferring custody to DHHR; and second, that Defendants
had no reason to suspect the plaintiffs of abuse or neglect. , at 13 (“Here,
the removal, , deprived J.H. of her clearly established Fourth and
Fourteenth Amendment rights by severing custody from her legal guardians without
a court order or any basis to suspect abuse by Plaintiffs.” (emphasis added) (citing
, 282 F. Supp. 2d 439, 464 (E.D. Va.

2003))).
The summary judgment record supports neither allegation. As Plaintiffs now
acknowledge, J.H. and M.D. were removed from the Hoods’ care on September 9,
2020. [ECF No. 75-1, at 43:1–4, 46:13–21]. The removal occurred in the evening,
the Circuit Court entered an initial removal order that afternoon. at 43:3–4.
Thus, a valid court order was in place at the time of the minors’ removal.
It is similarly undisputed that Ms. Smith accused Ms. Hood of drug use and

violence, and that Ms. Hood’s CPS history included a substantiation at the time. [ECF
No. 72-1, at 36:6–45:5]. Although that substantiation has since been reversed, and
Ms. Smith’s allegations may lack evidentiary support, there is no dispute that
Defendants had reason—however unfounded in hindsight—to suspect that J.H. and
M.D. could not safely be cared for by the Hoods.

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As these truths have come to light, Plaintiffs now refocus their arguments on
Defendants’ lack of diligence in verifying the existence of their guardianship over
J.H., and in securing kinship placements for J.H. and M.D. during their temporary

removal. But these alleged failures are similarly unsupported by the evidence and, in
any event, do not rise to the level of gross misconduct necessary to overcome the
defendants’ immunities. Thus, as detailed more fully below, the factual revelations
just described are ultimately fatal to Plaintiffs’ claims.
II. Legal Standard
To obtain summary judgment, the moving party must show that there is no

genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). “Facts are ‘material’ when they
might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence
would allow a reasonable jury to return a verdict for the nonmoving party.”
, 597 F.3d 570, 576 (4th Cir.
2010). The moving party may meet its burden of showing that no genuine issue of
material fact exists by use of “depositions, answers to interrogatories, answers to

requests for admission, and various documents submitted under request for
production.” , 736 F.2d 946, 958 (4th Cir. 1984). In
considering a motion for summary judgment, the court will not “weigh the evidence
and determine the truth of the matter.” , 477 U.S. 242, 249
(1986). Rather, the court will draw any permissible inference from the underlying

8
facts in the light most favorable to the nonmoving party.
., 475 U.S. 574, 587–88 (1986).
Summary judgment is appropriate when the nonmoving party has the burden

of proof on an essential element of their case and does not make, after adequate time
for discovery, a showing sufficient to establish that element. ,
477 U.S. 317, 322–23 (1986). The nonmoving party must offer some “concrete
evidence from which a reasonable juror could return a verdict in [their] favor” and
must “set forth specific facts” that offer more than a mere “scintilla of evidence” in
support of their position. , 477 U.S. at 252, 256. Conclusory allegations or

unsupported speculation, without more, are insufficient to preclude the granting of a
summary judgment motion. , 818 F.2d 1126, 1128
(4th Cir. 1987).
III. Discussion
Plaintiffs assert a combination of federal constitutional claims and state tort
claims. Because the state and federal claims are governed by different immunity
doctrines and theories of liability, I address each set of claims separately, beginning

with those arising under federal law.
A. Federal Claims
In Counts I through IV, Plaintiffs allege violations of the Fourth and
Fourteenth Amendments to the United States Constitution, including conspiracies to
commit the same. To ultimately succeed on any of their claims, Plaintiffs must show

9
that Defendants violated a federal right, and, because both defendants assert the
affirmative defense of qualified immunity, that “the right was clearly established at
the time the violation occurred such that a reasonable person would have known that

[their] conduct was unconstitutional.” , 781 F.3d 95, 100 (4th Cir. 2015).
i. Fourth Amendment (Count I)
In Count I, Plaintiffs assert that Defendants violated the minors’ Fourth
Amendment right to be free from unreasonable seizure. In their Complaint, Plaintiffs
allege that “J.H. and M.D. were wrongfully detained . . . without authority,
jurisdiction, or probable cause,” and that they “were later seized . . . pursuant to legal

process without probable cause and under false pretenses.” [ECF No. 1, ¶¶ 86–87].
Plaintiffs now “acknowledge that a Court Order for the seizure of J.H. was in place
at the time she was taken from the Plaintiffs.” [ECF No. 72, at 10]. Nevertheless, they
insist their Fourth Amendment claim remains viable on the basis that “Defendant
Farmer utterly failed to conduct a proper investigation into the Guardianship Order
and the false allegations made against Mary Hood by Jessica Smith.”
Plaintiffs’ Fourth Amendment claims are “addressed according to a

‘reasonableness standard.’” , 105 F. Supp. 3d 592, 598 (W.D. Va.
2015). A seizure is reasonable—and therefore constitutional—if “(1) it is pursuant to
a court order; (2) it is supported by probable cause; or (3) it is justified by exigent
circumstances, meaning that state officers ‘have reason to believe that life or limb is
in immediate jeopardy.’” , 282 F. Supp. 2d at 469 (quoting

10
, 235 F.3d 1000, 1010 (7th Cir. 2000)). Here, Plaintiffs’ claim fails because the
seizure of the minors was reasonable.
As suggested in my prior Memorandum Opinion and Order, Defendants cannot

be held liable for the removal of M.D., “who was not yet under Plaintiffs’ legal
guardianship at the time of removal, . . . because there was probable cause to suspect
neglect by M.D.’s biological mother.” [ECF No. 53, at 14]. In light of factual
developments, probable cause also existed to suspect J.H.’s caregivers of abuse or
neglect. The minors’ biological mother, Ms. Smith, admitted to CPS that she used
drugs in the Hoods’ home. [ECF No. 70-1, at 4]. Ms. Smith also “has had open CPS

cases while living in Mary Hood’s home.” at 51:4–8. Furthermore, Ms. Hood’s own
CPS history included a maltreatment substantiation from when Ms. Smith was a
child, [ECF No. 72-1, at 95:20–97:2; ECF No. 72-5, at 15:17–19], and Mr. Hood was
previously arrested on drug-related charges, [ECF No. 72-1, at 61:8–21]. Although
the maltreatment finding against Ms. Hood has since been reversed, probable cause
depends on the circumstances “as known to” the official at the time they effected the
seizure. , 831 F.3d 176, 184 (4th Cir. 2016) (quoting

, 973 F.2d 307, 314 (4th Cir. 1992)). It is similarly immaterial that Ms. Hood’s
substantiation and Mr. Hood’s arrest “did not prevent the Family Court of Kanawha
County from appointing [Plaintiffs] as J.H.’s guardian[s].” [ECF No. 1, ¶ 36]. “DHHR
was permitted, in its discretion, to re-evaluate the appropriateness of [Plaintiffs]’
home as a placement for [J.H.] in light of its ongoing investigation into [her] best

11
interests.” , No. 17-1087, 2018 WL
6040310, at *5 (W. Va. Nov. 19, 2018). This is especially true where, as here, DHHR
“wouldn’t have had any reason to know” about the guardianship prior to this incident.

[ECF No. 72-1, at 74:8–21 (Ms. Hood testifying that she never contacted CPS
regarding the guardianship, the domestic violence petition against Ms. Smith, or Ms.
Smith’s resumed drug use)].
Moreover, Defendants Farmer and Frame acted pursuant to a court order
when they effected the seizure of J.H. and M.D. [ECF No. 75-1, at 43:1–4, 46:13–21].
Acknowledging this fact, Plaintiffs now appear to challenge the validity of the court

order based on perceived failures in the investigation that ultimately led to the
minors’ removal. [ECF No. 72, at 10 (arguing the removal order “[d]oes [n]ot
[t]rump” the guardianship order)]. Namely, Plaintiffs take issue with Defendant
Farmer’s diligence, or lack thereof, in confirming the Hoods’ guardianship over J.H.
and in verifying the safety concerns about the Hoods. But even if Ms. Farmer could
have taken greater care, the “intervening acts of other participants,” such as an
exercise of prosecutorial discretion, will “insulate [her] from liability” unless she, for

example, “lied to or misled the prosecutor.” , 759 F.3d 343, 357 (4th
Cir. 2014) (quoting , 703 F.3d 636, 647 (4th Cir. 2012)). At least
two independent intermediaries—the prosecutor and the circuit court judge—ratified
Defendant Farmer’s investigative findings and concurred in her recommendation
that a petition was warranted. [ECF No. 72-2, at 56:19–57:7 (Defendant Frame

12
explaining that it is “ultimately the prosecutor’s decision whether to file the petition”
and “then ultimately it’s the judge who makes the decision whether to enter an order
directing DHHR to take custody of the children”)]. A review of Ms. Farmer’s report to

Prosecutor Burdick reveals no material falsehoods or omissions. She informed him
that Ms. Smith indicated that J.H. “resides with” and “is in a guardianship with the
paternal [sic] grandmother, Mary Hood,” but that Ms. Smith “was unable to identify
whether or not this guardianship had taken place before a family court judge.” [ECF
No. 70-1, at 21–22]. Defendant Farmer further noted Ms. Smith’s “ongoing substance
abuse issues, as evidenced by continued infant exposure to drugs, as well as CPS

involvement, in which occurred in the paternal [sic] grandmother’s home, Mary
Hood.” at 22. Thus, Ms. Farmer communicated the relevant information to the
prosecutor, who independently decided to draft and file a petition for removal. If the
Petition itself or other aspects of the proceedings involved errors that delegitimize
the court-ordered removal, those errors were not caused by Defendants Farmer or
Frame.
Finally, to the extent that Plaintiffs’ claim derives from “allow[ing] [the]

Petition to be filed with incomplete and patently false information,” [ECF No. 72, at
10], Defendants are entitled to absolute prosecutorial immunity,
, 884 F.2d 133, 135 (4th Cir. 1989) (holding that social workers filing a
removal petition acted in a “prosecutorial, rather than an investigative or ‘policing’
capacity” and therefore “must be afforded absolute immunity from any liability

13
arising from this conduct”). Accordingly, both defendants are entitled to summary
judgment on Count I.
ii. Fourteenth Amendment (Count III)

In connection with their substantive due process claim, Plaintiffs assert that
Defendants “invad[ed] their custodial, familial, and/or guardianship rights.” [ECF
No. 1, ¶ 117]. According to Plaintiffs, “Defendants interfered with their rights with
respect to J.H. by ignoring and failing to verify the Guardianship Order, and by
failing to perform any investigation into the well-being of J.H., who was legally in the
custody of Mary Hood.” [ECF No. 72, at 11].

Defendants contend that Plaintiffs’ Fourteenth Amendment claim “is a veiled
Fourth Amendment claim” and therefore substantive due process analysis would be
inappropriate in this case. “[I]f a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under the
rubric of substantive due process.” , 520 U.S. 259, 272 n.7
(1997) (discussing , 490 U.S. 386, 394 (1989)). Although Plaintiffs’

briefing is somewhat unclear, it does appear that their constitutional claims arise
solely out of the state’s seizure of J.H. and M.D. , [ECF No. 73, at 15
(summarizing the Fourteenth Amendment claim “in one sentence” as “using a
person’s position to ignore a Guardianship Order and remove a child from her home
with absolutely no evidence of abuse or neglect and without conducting any

14
meaningful investigation”)]. As discussed above, that seizure was reasonable and
therefore did not violate the Fourth Amendment.
Plaintiffs do assert, in a section header, that “Count III Is Not A Fourth

Amendment Claim.” [ECF No. 72, at 11]. But nowhere in that section—or anywhere
else in their briefing—do they address how the claims differ. Regardless, to the extent
that Plaintiffs’ claims are distinct, they also fail to establish a substantive due process
violation.
“The touchstone of due process is the protection of the individual against
arbitrary action of government.” , 418 U.S. 539, 558 (1974) (citing

, 129 U.S. 114, 123 (1889)). Where, as here, objectionable action
by a member of the executive branch is alleged, “only the most egregious official
conduct can be said to be ‘arbitrary in the constitutional sense.’”
, 523 U.S. 833, 846 (1998) (quoting , 503 U.S. 115,
129 (1992)). “Generally, an act must ‘shock the conscience’ in order to constitute a
violation of substantive due process.” , 282 F. Supp. 2d at 459–60 (citing
, 901 F.2d 387, 391 (4th Cir. 1990)). “In the area of child

protection, ‘removal of a child in an emergency action from the custody of a parent
suspected of abusing him, ’ does not shock
the conscience.” at 460 (citing , 901 F.2d at 391). Here, the minors were
taken pursuant to a court order issued upon a finding of “imminent danger to the
physical well-being of the children.” [ECF No. 70-1, at 32]. As discussed above,

15
Defendants had reason to believe that Plaintiffs could not provide a safe environment
for the minors, and they communicated all relevant information to the prosecutor.
Nothing Defendants did or said could reasonably be found to “shock the conscience.”

Thus, Plaintiffs’ substantive due process claim must be dismissed.
iii. Conspiracy (Counts II and IV)
In Counts II and IV, Plaintiffs allege that Defendants conspired to commit the
constitutional violations asserted in Counts I and III. To establish a civil conspiracy
under § 1983, Plaintiffs must present evidence that Defendants “acted jointly in
concert and that some overt act was done in furtherance of the conspiracy which

resulted in [Plaintiffs]’ deprivation of a constitutional right.”
, 81 F.3d 416, 421 (4th Cir. 1996) (citing , 983 F.2d 570,
577 (4th Cir. 1992)). Because I have determined that the defendants’ actions in this
case did not result in the “deprivation of a constitutional right,” Plaintiffs’ federal
conspiracy claims must be dismissed. , 628 F.3d 140,
150 (4th Cir. 2010).
B. State Claims

Having dismissed all of Plaintiffs’ federal claims, the court declines to exercise
supplemental jurisdiction over the remaining state law claims. 28 U.S.C. §
1367(c)(3) (authorizing district courts to decline to exercise supplemental jurisdiction
after the court “has dismissed all claims over which it has original jurisdiction”).

16
In making this discretionary determination, the court considers factors such
as “convenience and fairness to the parties, the existence of any underlying federal
policy, comity, or considerations of judicial economy.” , 430 F. Supp.

3d 146, 168 (N.D. W. Va. 2019) (quoting , 58 F.3d 106, 110 (4th
Cir. 1995)); , 484 U.S. 343, 350 n.7 (1988)
(“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors . . . point toward declining to exercise jurisdiction over the
remaining state-law claims.”).
Fairness concerns any prejudice to the parties. , 430 F. Supp. 3d at 169

(citing , 844 F. Supp. 258, 261 (E.D.N.C.
1993)). Under West Virginia law, for one year from the date of an order dismissing
an action, a party may re-file an action involuntarily dismissed for any reason not
based on the merits. (citing W. Va. Code § 55-2-18). Furthermore, the statute of
limitations for any claim over which this court had supplemental jurisdiction is tolled
while the case has been pending and for thirty days after the claim is dismissed.
, 415 F. Supp. 3d 20, 29 (D.D.C. 2019) (citing 28 U.S.C.

§ 1367(d)). Thus, a dismissal without prejudice, although perhaps an inconvenience,
is not unfair. Accordingly, the first factor weighs in favor of dismissing Plaintiffs’
state law claims.
As to the second and third factors, no underlying federal policy weighs in favor
of the court retaining jurisdiction over Plaintiffs’ remaining claims. Indeed, the tort

17
claims in this case involve issues of family law and state agency administration which
are “at the heart of state sovereignty.” , 430 F. Supp. 3d at 169 (quoting
, 396 F.3d 348, 354 (4th Cir. 2005) (“[T]hat

which must be respected through ‘comity’ is identical to the traditional ‘areas of
paramount state concern,’ and also the same as the ‘important state interests’ test.”)).
The remaining claims all arise out of a petition and removal order filed in West
Virginia state court. It is therefore “clearly in the state court’s interest to interpret
and, if necessary, enforce its earlier rulings.” Thus, the second and third factors
weigh heavily in favor of declining to exercise supplemental jurisdiction here.

Finally, because this case is in the summary judgment phase, no overriding
interest of judicial economy will be served by dismissing the claims. This factor thus
weighs in favor of retaining jurisdiction; “standing alone, however, it does not
outweigh the compelling fact that all remaining claims . . . involve quintessentially
state law causes of action.”
Given that all federal claims have been dismissed, the court concludes that the
balance of factors weighs strongly in favor of declining to exercise jurisdiction over

the remaining state law claims. Pursuant to 28 U.S.C. § 1367(c)(3), Counts V, VI, VII,
VIII, IX, and X will be dismissed without prejudice.
IV. Conclusion
Based on the foregoing, Defendants’ Motions for Summary Judgment [ECF
Nos. 68, 70] are GRANTED in part. The Motions are GRANTED as to Counts I, II,

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III, and IV, which are hereby DISMISSED with prejudice. The remaining state law
claims set forth in Counts V, VI, VII, VIII, IX, and X are DISMISSED without
prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: July 28, 2023
G 6G
pe STATES D{STRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10731084. Public record. Not legal advice.