# Campbell v. The City of Morgantown

> District Court, N.D. West Virginia · March 27, 2025

URL: https://www.frixlaw.com/law-library/cases/10832399

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** March 27, 2025
- **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
CLARKSBURG

CHARLES D. CAMPBELL et al.,

Plaintiffs,

v. CIVIL ACTION NO. 1:24-CV-74
(KLEEH)

THE CITY OF MORGANTOWN,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [ECF NO. 7]
Pending before the Court is Plaintiffs’ Motion to Remand [ECF
No. 7]. 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 July 1, 2024. ECF No. 1 at ¶
1. In their Complaint, members of the City of Morgantown Fire
Department, allege several causes of action including violations
of the West Virginia Minimum Wage and Maximum Hours Standards
(“WVMWMH”), W. Va. Code § 21-5C-1; violations of the West Virginia
Wage Payment and Collection Act (“WPCA”), W. Va. Code § 21-5-1,
et. seq.; and breach of employment agreement. ECF No. 1-3. On
August 2, 2024, Defendant City of Morgantown removed the matter to
this Court claiming jurisdiction existed under 28 U.S.C. § 1331.
ECF No. 1 at ¶ 7. On August 9, 2024, Defendant filed The City of
Morgantown’s Motion to Dismiss Plaintiffs’ Complaint, or, in the
Alternative, For Summary Judgment in Favor of the City of
Morgantown or a Stay of Proceedings. ECF No. 3. Plaintiffs

responded in opposition to Defendant’s Motion on August 23, 2024
[ECF No. 5] and Defendant replied in support on August 30, 2024
[ECF No. 6].
On September 6, 2024, Plaintiffs filed the subject Motion to
Remand. ECF No. 7. The City of Morgantown responded in opposition
to the remand on September 20, 2024 [ECF No. 9], and Plaintiffs
replied in support of their motion to remand on September 27, 2024
[ECF No. 10]. This Motion is thus fully briefed and ripe for
review. Because Plaintiffs’ Motion [ECF No. 7] challenges the
Court’s subject matter jurisdiction over this case, it must be
addressed prior to Defendant’s Motion [ECF No. 3].1
II. FACTUAL BACKGROUND2
Plaintiff Charles D. Campbell is a Lieutenant in the

Morgantown Fire Department and serves as the President of IAFF

1 Boczek v. Pentagon Fed. Credit Union, No. 1:23-CV-43, 2024 WL
4804982, at *2, n. 2 (N.D.W. Va. Nov. 15, 2024) (“‘“The existence
of subject matter jurisdiction is a threshold issue” which a Court
must address prior to reaching the merits of a case.’ Linton v.
Rollo, No. CIV.A. 1:07CV72, 2007 WL 3408247, at *1 (N.D.W. Va.
Nov. 15, 2007) (citing Jones v. American Postal Workers Union, 192
F.3d 417, 422 (4th Cir. 1999)).”).
2 All facts recited herein are found in Plaintiffs’ Complaint. ECF
No. 1-3.
Local 313 (Morgantown). ECF NO. 1-3 at ¶. 1. Plaintiff is employed
as a professional firefighter with the Defendant City of
Morgantown. Id. The remaining Plaintiffs in this case are current

or former Morgantown firefighters:
1. Beall, Mitchell
2. Bailey, Brandon
3. Benson, Michael
4. Bishop, Hunter
5. Borzik, John
6. Bragg, Joseph R.
7. Calvert, George
8. Chisler, Matthew
9. Close, Michael
10. Connery, Klint
11. Dalton, Tanner
12. Dalton, Thadius
13. Daniels Douglas A. Jr.
14. Davis, Bryan
15. DeBerry, Christopher
16. Freshour, Gary
17. Ganoe, Jason
18. Giles, Aaron
19. Hagedorn, Larry
20. Hatfield, Jason
21. Horbachewski, Dan
22. Izzo, Brian
23. Jenkins, Ashley
24. Laskody, Chad
25. Lyons, William
26. Martin, Anthony
27. McClain, Bailey
28. Mergenthaler, Brent
29. Moore, John
30. Morgan, Joshua
31. Morris, Nicholas L.
32. Nicewarner, Jayson
33. Nickelson, Eric
34. Nypaver, Joshua
35. Olszewski, Roman
36. Pantalo, Marco
37. Paugh, Brett
38. Peery, Matt
39. Pickenpaugh, Trevor
40. Porter, Derek
41. Ross, David
42. Sharpe, Douglas
43. Smith, Travis
44. Stake, Anthony
45. Thalman, Mark
46. Thomas, Travis
47. Turner, Lucas
48. Ware, Colby
49. Watson, Keith
50. Waxman, Andrew
51. Whiten, Sean R.
52. Wolfe, Robert
53. Wright, Nicholas
54. Zaroda, Devon J.
55. Zimmerman, Robert
Id. at ¶ 2. In their Complaint, Plaintiffs allege that the
City of Morgantown failed to promptly and correctly pay them their
regular rate of pay and overtime compensation. Id. at ¶¶ 18-19.
They further allege both Defendant and they collectively are
covered under the WVMWMH and the WPCA. Id. at ¶¶ 40-41, 55-56. In
Count One, Plaintiffs allege the City of Morgantown violated the
WVMHMW by improperly calculating the firefighters’ regular rate of
pay and not paying overtime compensation. Id. at ¶¶ 38-53. In Count
Two, Plaintiffs allege the City of Morgantown violated the WCPA by
failing to properly calculate the firefighters’ regular rate of
pay and overtime rate of pay. Id. at ¶¶ 54-68. In Count Three,
Plaintiffs allege the City of Morgantown violated the WCPA by
failing to promptly pay wages due and owed to the firefighters.
Id. at ¶¶ 69-82. In Count Four, Plaintiffs assert they are entitled
to liquidated damages under the WCPA. Id. at ¶¶ 83-89. In Count
Five, Plaintiffs allege the City of Morgantown breached the
firefighters’ employment agreement by failing to properly
calculate the Plaintiffs’ regular rate of pay and overtime rate of
pay. Id. at ¶¶ 90-99. Plaintiffs seek an array of damages for these

claims. Nowhere does Plaintiffs’ Complaint cite or mention any
federal law – constitutional, statutory, or otherwise.
III. DISCUSSION
A. Removal Jurisdiction
Defendants in civil actions may remove a matter from state to
federal court if the latter forum has original subject matter
jurisdiction. This requirement can be based upon diversity
jurisdiction or federal question jurisdiction. See 28 U.S.C.
§ 1441. A federal district court has diversity jurisdiction over
cases between citizens of different states where the amount in
controversy exceeds $75,000.00, exclusive of interest and costs.
See 28 U.S.C. § 1332.3 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).

3 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.
The burden of demonstrating jurisdiction generally resides
with the defendant. See Wilson v. Republic Iron & Steel Co., 257
U.S. 92 (1921). Likewise, the plaintiff’s role in the context of

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

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

Even a cursory reading of Plaintiffs’ complaint reveals the
complete absence of any semblance of a federal claim on that
pleading’s face. In the Complaint, Plaintiffs assert a multitude
of causes of action against their employer under West Virginia
law: violation of the WVMWMH, W. Va. Code § 21-5C-1 et seq.;
violations of the WPCA, W. Va. Code § 21-5-1 et seq.; and a common
law claim for breach of an employment agreement 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

Plaintiffs’ claim in Count One for violation of the WVMWMH actually
arises under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
203. ECF No. 9 at p. 1. Defendant thus urges this Court to find an
“embedded federal question” in Plaintiffs’ WVMWMH claim and assert
jurisdiction in this matter. Id. at p. 6.
“[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
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 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.
Defendant argues that Plaintiffs’ WVMWMH claim necessarily
raises a federal issue because Plaintiffs must demonstrate that
the City of Morgantown is a covered employer under the WVMWMH law,

which implicates the FLSA’s 80-percenter rule. Id. at pp. 6-11.
Pursuant to the WVMWMH law, an “employer” includes:
the State of West Virginia, its agencies,
departments, and all its political
subdivisions
...
That after December 31, 2014, for the purposes
of § 21-5C-3 of this code, the term “employer”
does not include any individual, partnership,
association, corporation, person or group of
persons, or similar unit if 80 percent of the
persons employed by him or her are subject to
any federal act relating to maximum hours and
overtime compensation.
W. Va. Code § 21-5C-1. The Supreme Court of Appeals of West
Virginia has held that all entities qualifying as an employer under
the WVMWMH, including a city as a political subdivision of the
State, are entitled to the exemption from the WVMWMH “provided
that eighty percent of their employees are subject to federal wage
and hour laws. Adkins v. City of Huntington, 191 W. Va. 317, 320,
445 S.E.2d 500, 503 (1994).
Thus, Defendant contends that Plaintiffs must establish as a
threshold matter whether the City of Morgantown is subject to the
WVMWMH, which necessarily implicates determining whether 80% or
more of the City of Morgantown’s employees are subject to the FLSA.
ECF No. 9 at p. 7. Defendant relies heavily upon Harper v. Massey
Coal Services, Inc., No. 2:10-0894, 2011 WL 322558 (S.D.W. Va.
Feb. 2, 2011), to support its position. 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.
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.
In contrast, Plaintiffs argue that there is no embedded
federal question raised in their Complaint. ECF No. 7 at p. 19.
Plaintiffs argue that the claimed presence of the FLSA’s policy in
this action is insufficient to justify federal question
jurisdiction, in part, because the Grable factors are not met to
justify the “extremely rare exception”. Id. at pp. 20-21.
Plaintiffs rely heavily upon Craddock v. Adon Network, Inc., No.

2:10-CV-01401, 2011 WL 1601331, at *1 (S.D.W. Va. Apr. 27, 2011)
to support remanding this matter to the Circuit Court of Monongalia
County, West Virginia. Id.
In Craddock, an employer removed an action to the Southern
District of West Virginia, asserting the Court had federal question
jurisdiction pursuant to the FLSA even though the Complaint alleged
only State law causes of action. Craddock, 2011 WL 1601331, at *1.
Like the case presently before the Court, the employer argued
federal question jurisdiction existed, because the plaintiff's
claims under the Minimum Wage Act necessarily raised, as an element
of the claim, the issue of whether more than eighty percent of the
defendant's employees were covered by the FLSA. Id. Judge Goodwin,

acknowledging Judge Copenhaver’s prior decision in Harper, assumed
without deciding that “defendant's status as an FLSA ‘eighty-
percenter’ is a necessary element of a well-pleaded complaint under
W. Va. Code § 21–5C–3.” Id. at *5. However, as discussed in more
detail below, Judge Goodwin ultimately remanded the case to the
Circuit Court of Kanawha County, West Virginia after finding the
federal issue was not “substantial” under federal law for purposes
of removal jurisdiction. Id. at *5-6.
Having considered the arguments of the parties along with the
persuasive decisions from the Southern District of West Virginia,
the Court assumes without deciding that the FLSA eighty-percenter

rule is necessarily raised in a WVMWMH claim, and thus the first
Grable factor supports federal question jurisdiction.
2. Substantial Federal Issue
Turning to the “substantial” factor, the Court finds
Defendant fails to satisfy the second Grable prong. 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).

Craddock, 2011 WL 1601331, at *4 (citing Mikulski v. Centerior
Energy Corp., 501 F.3d 555, 570 (6th Cir. 2007)).
Defendant asserts that the implication of the eighty-
percenter rule is actually disputed4 and substantial in this case.

4 The matter is actually disputed because Plaintiffs argue both
that the eighty-percenter rule does not exempt public employers
ECF No. 9 at p. 11. Defendant argues “[t]he need for uniformity in
the interpretation and application of the FLSA with regard to its
coverage of employees, not just for the parties in this case but

for all employers and employees whom this federal issue affects,
creates the substantial federal interest justifying the exercise
of this Court's jurisdiction.” Id. at p. 13. Again, Defendant
relies on the Harper decision which found the need for uniform
interpretation of the FLSA to be constitute a substantial federal
interest. Id. at p. 11; Harper, 2011 WL 322558 at *6.
In contrast, Plaintiff argues that the second Grable prong is
not satisfied because the eighty-percenter rule does not qualify
as a substantial federal question. ECF No. 7 at p. 23. Plaintiffs
contend that no federal agency is party to this litigation nor is
any such agency’s compliance with federal law at issue. Further,
Plaintiffs argue that the Circuit Court of Monongalia County is

competent to apply any federal law to the extent it is necessary
in adjudicating the state cause of action. Id.; Empire Healthchoice
Assur., Inc.,547 U.S. at 701 (2006). Plaintiff similarly relies
upon the reasoning in the Craddock decision, in urging the Court
to find the eighty-percenter rule does not raise a substantial
question of law. Id.

from the WVMWMH and in the alternative that the City of Morgantown
does not meet the 80% threshold for exemption. ECF No. 7.
Regarding the second Grable prong, the Craddock Court
reasoned that the eighty-percenter issue was not a substantial
one, after consideration of the four factors outlined in Empire

Healthchoice Assur., Inc., Craddock, 2011 WL 1601331, at *5-6.
Here, the first factor does not counsel in favor of finding
a substantial federal issue at play here because no federal agency
is party to this litigation nor is any such agency’s compliance
with federal law at issue. Rather, the parties are a municipality
and professional firefighters.
The Court acknowledges that the second factor is a closer
call. The FLSA is undoubtably an important federal statute. The
particular question at issue here – who is covered by the FLSA –
is a complex question and is often litigated. See Harper, 2011 WL
322558, at *6. “Nevertheless, although the federal government
certainly has an interest in ensuring that there is uniformity in

the application of federal statutes, the question does not
necessarily implicate ‘broader or more substantial issues.’”
Craddock, 2011 WL 1601331, at *6 (quoting Mikulski, 501 F.3d at
571). Furthermore, resolution of the coverage issue in this case
will not have any binding impact on the federal government; at
most – it could be cited in future litigation involving the City
of Morgantown as an employer. Thus, the second factor does not
support that the eighty-percenter rule is substantial.
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.).
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 WVMWMH, 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. Defendant argues that application of the eighty-percenter
rule is dispositive. However, this is only true if the issue is
decided in favor of Defendant. See Craddock, 2011 WL 1601331, at
*6. “Here, at most, the federal issue represents but one element
of one of the plaintiff's claims, all of which are based in state
law.” Id. There is no “pure” question of federal law that would

resolve not only this dispute but others in the future. Each case
would require a specific determination as to whether a particular
defendant qualifies as an employee under the WVMWMH. Thus, The
third and fourth factors likewise weigh against finding a
substantial federal question that requires exercise of
jurisdiction under Grable-Pinney.
3. Federal-State Judicial Balance
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, in this case, under the auspices of the FLSA.5 They
consciously chose a different path. Here, Defendant seeks to usurp

that choice via 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 WVMWMH. 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 WVMWMH 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.

5 The Court is aware that Plaintiffs have filed a separate cause
of action pursuant to the FLSA. See Campbell, et al. v. The City
of Morgantown, Civil Action No. 1:24-cv-66 (N.D.W. Va. June 28,
2024).
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. 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

warranted here. 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
On August 9, 2024, Defendant filed The City of Morgantown’s
Motion to Dismiss Plaintiffs’ Complaint, or, in the Alternative,
For Summary Judgment in Favor of the City of Morgantown or a Stay
of Proceedings. ECF No. 3. 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, 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. 7] 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 Defendant’s Motion to Dismiss [ECF No. 3] 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: March 27, 2025
Tn B Blade
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10832399. Public record. Not legal advice.