DD Oil Co v. The West Virginia Department of Environmental Protection

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

DD OIL CO

a West Virginia Corporation, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:24-cv-00101

WEST VIRGINIA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, ET AL.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is defendants West Virginia Department of Environmental

Protection, Secretary Harold Ward, Director Katheryn Emery, and four unnamed John Does’

(“Defendants”) Motion to Dismiss the Amended Complaint. (ECF No. 29.) For the reasons that

follow, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion.

I. BACKGROUND

DD Oil Company and Drilco Oil and Gas Corporation (“Plaintiffs”) are two West Virginia

based corporations that are affiliated with one another. (ECF No. 28 at ¶¶ 1–2.) Both Plaintiffs

engage in the “oil and gas” business, (id.), though it is unclear from the Amended Complaint what

exactly that entails. Defendants are state agencies and officials who apparently are tasked with

enforcing West Virginia’s environmental laws. (See id. at ¶¶ 3–5.)

At some point, Plaintiffs drew the attention of Defendants. Between 2016 and 2022,

Defendants performed site visits of Plaintiffs’ facilities. (See id. at ¶¶ 14–19.) Based on those

visits, Defendants allegedly issued documentation of inspection violations (“Notices of

Violation”) corresponding with those site visits. (Id.) Upon Plaintiffs’ belief, there was “no

factual or legal basis” to issue the Notices of Violation, and the service of those notices were not

proper. (See, e.g., id. at ¶ 44.) Nevertheless, the Notices of Violation remained unacted upon for

years. (See id. at ¶ 20.)

In 2022, Plaintiffs filed suit against some of the Defendants in the U.S. District Court for

the Northern District of West Virginia alleging “similar claims for violations of its federal

constitutional rights” (“Previous Federal Suit”). (Id. at ¶ 21.) That suit was settled in August

2023. (Id. at ¶ 22.)

In March 2023, Defendants set about to enforce the Notices of Violation through civil

action. (See id. at ¶¶ 14–19.) Defendants initiated three suits (collectively referred to here as the

“Civil Enforcement Suits”). The first was filed in Ritchie County Circuit Court on March 3, 2023,

alleging three violations of West Virginia law. (Id. at ¶ 14.) The second was filed on March 16,

2023, in Kanawha County Circuit Court, alleging an additional six violations of West Virginia

law. (Id. at 18.) The third was filed in Roane County Circuit Court on March 30, 2023, alleging

five more violations of West Virginia law. (Id. at ¶ 16.) Plaintiffs allege that Defendants had

“no basis for or intention to assert the claims” in Civil Enforcement Suits until after Plaintiffs filed

their Previous Federal Suit. (Id. at ¶ 23.)

Plaintiffs filed their Amended Complaint on December 2, 2024. (Id.) In the Amended

Complaint, Plaintiffs raise six causes of action: (1) retaliation for protected First Amendment

activity under 42 U.S.C. § 1983; (2) violations of Plaintiffs’ Fourteenth Amendment due process

rights under § 1983; (3) violations of Article III, §§ 7, 10, and 17 of the West Virginia Constitution;

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(4) abuse of process; (5) civil conspiracy; and (6) general negligence. (Id. at ¶¶ 34–101.) All of

these allegations stem from Defendants’ use and alleged abuse of the process for issuing Notices

of Violation and for initiating the Civil Enforcement Suits. (See generally id.) Plaintiffs seek

“only injunctive relief, punitive damages, and attorney’s fees, costs and expenses” from Defendant

WVDEP, and “injunctive relief, punitive damages, attorney’s fees, costs and expenses, plus

monetary damages for monetary loss and non-monetary loss” from the rest of the Defendants.

(See, e.g., id at ¶¶ 100–101.)

Defendants timely filed their Motion to Dismiss and accompanying memorandum in

support on January 10, 2025. (ECF Nos. 29, 30.) Plaintiffs were permitted to file an untimely

response brief on July 17, 2025, (ECF No. 33), and Defendants timely filed their reply. (ECF No.

35.) The matter is now ripe for adjudication.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows for a complaint to be dismissed for failing

“to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to dismiss

tests the legal sufficiency of a plaintiff’s complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 677–80

(2009). At the Rule 12(b)(6) stage, a court must “assume the truth of all facts alleged in the

complaint and the existence of any fact that can be proved, consistent with the complaint's

allegations.” E. Shore Markets, Inc. v. J.D. Associates. Ltd. Partnership, 213 F.3d 175, 180 (4th

Cir. 2000). Yet a court “need not accept as true unwarranted inferences, unreasonable

conclusions, or arguments.” Id. To survive a defendant’s motion, the complaint must plead

sufficient facts to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 679.

Thus, the complaint must assert facts to show more than a “sheer possibility that a defendant has

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acted unlawfully,” and must be “facially plausible” such that it “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

III. ANALYSIS

A. Count I: First Amendment retaliation claim

Count I alleges that Plaintiffs have been deprived of their First Amendment rights in

retaliation for filing their Previous Federal Suit. (ECF No. 28 at ¶¶ 36–43.) Defendants raise a

variety of arguments in favor of dismissing Count I. This Court will first address whether

Plaintiffs have sufficiently pled a First Amendment retaliation claim under § 1983. Then, it will

address the arguments raised regarding qualified immunity, Eleventh Amendment immunity, and

the availability of punitive damages.

i. The merits of Plaintiffs’ First Amendment retaliation claim

The First Amendment protects “not only the affirmative right to speak, but also the right

to be free from retaliation by a public official for the exercise of that right.” Iannacone v. Ellison,

776 F. Supp. 3d 388, 398 (S.D. W. Va. 2025) (citing Suarez Corp. Indus. v. McGraw, 202 F.3d

676, 685 (4th Cir. 2000)). “The filing of a lawsuit” is also protected by “the First Amendment

right to petition the government for redress of grievances,” and thus “carries significant

constitutional protections.” ACLU of Md, Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir.

1993).

“To make out a First Amendment retaliation claim, a plaintiff must allege (1) that he

engaged in activity protected by the First Amendment, (2) that a defendant took action to adversely

affect his First Amendment rights, and (3) that a causal relationship between the protected activity

and a defendant's conduct can be established.” Iannacone, 776 F. Supp 3d. at 798 (citing

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Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474, 499 (4th Cir. 2005)).

Defendants offer no argument on the first and second prongs.1 Instead, they claim that

there is insufficient evidence to support the third prong as no facts support “the causation element.”

(ECF No. 30 at 3.)

For the third prong of a retaliation claim, Plaintiffs “must establish a ‘causal connection’

between the government defendant's ‘retaliatory animus’ and the plaintiff's ‘subsequent injury.’”

Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 259

(2006)). A plaintiff must show that the protected activity was the “but-for cause” of the retaliatory

act, “meaning that the adverse action against the plaintiff would not have been taken absent the

retaliatory motive.” Id. at 399 (citing Hartman, 547 U.S. at 260). For an action to meet the

causation requirement, there must be “some degree of temporal proximity to suggest a causal

connection.” Constantine, 411 F.3d at 501. “A lengthy time lapse between the [public official's]

becoming aware of the protected activity and the alleged adverse . . . action . . . negates any

inference that a causal connection exists between the two.” Id. (quoting Dowe v. Total Action

Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)).

Defendants claim there is no but-for causation. The alleged retaliatory action, as

Defendants’ properly note, was the filing of Defendants’ Civil Enforcement Suits.2 (ECF No. 30

at 3 (“Plaintiffs’ federal First Amendment claim is based on the Defendants having filed civil

1 As such, this Court will simply assume without deciding that Plaintiffs engaged in protected activity and that

Defendants’ Civil Enforcement Suits were actions taken to adversely affect Plaintiffs’ First Amendment rights.

2 Plaintiffs seem to suggest that the Notices of Violation were somehow also a retaliatory action for filing their

Previous Federal Suit. (See ECF No. 33 at 4–5.) They suggest that the Notices of Violation “were predated to look

like they were issued as far back as 2016.” (Id. at 5.) That allegation appears nowhere in the Amended Complaint,

and there are no facts to suggest such an inference can be made. Any allegation that the Notices of Violation

themselves serve as a retaliatory action is not permitted. See Barclay White Skanmsa, Inc. v. Battelle Memorial

Institute, 262 F. App’x 556, 563 (4th Cir. 2008) (noting that a plaintiff is not permitted to amend their complaint

through responsive briefs).

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complaints on March 3, 16, and 30 of 2023.”).) They then note that the alleged violations that

form the basis of Defendants’ Civil Enforcement Suits all preceded Plaintiffs’ Federal Suit. (Id.

at 4.) Defendants argue that Plaintiffs cannot demonstrate but-for causation because “[the]

Amended Complaint, on its face, pleads the Defendants in this matter had issued violations to the

Plaintiffs that preceded their [Federal Suit] against the WVDEP.” (Id.) As such, Plaintiffs “fail

the required causation element for a First Amendment retaliation claim.” (Id.)

Defendants miss the point. The alleged retaliatory action is not Plaintiffs’ own apparent

misdeeds, nor is it even the Notices of Violation that Defendants issued. Rather, the alleged

retaliatory act is Defendants’ choice to proceed with Civil Enforcement Actions. The Amended

Complaint clearly notes that the Defendants’ Civil Enforcement Suits were filed in March 2023.

(See ECF No. 28 at ¶¶ 14–19.) As can be properly inferred from the Amended Complaint,

Plaintiffs’ suit in the Northern District of West Virginia was filed in September 2022 and settled

in August 2023. (See id. at ¶¶ 21–22); Cf. Colonial Penn Insurnce Co. v. Coil, 887 F.2d 1236,

1239 (4th Cir. 1989) (citing out of circuit authority for the proposition that “federal courts, in

appropriate circumstances, may take notice of proceedings in other courts, both within and without

the federal judicial system, if those proceedings have a direct relation to matters at issue”). Not

only does Plaintiffs’ Previous Federal Suit precede the alleged retaliatory act, there is at least some

temporal proximity to suggest, at this stage, that Plaintiffs’ Federal Suit was the but-for cause of

Defendants’ Civil Enforcement Suits.3

3 Of course, a retaliatory prosecution claim requires the plaintiff to plead and prove the absence of probable cause.

See Hartman, 547 U.S. at 265–66. Defendants failed to raise that argument, so the Court will simply assume Plaintiffs

have sufficiently pled the absence of probable cause for the purposes of a motion to dismiss.

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Plaintiffs have, therefore, established enough facts to state a claim for First Amendment

retaliation.

ii. Qualified immunity

Defendants assert that they are entitled to qualified immunity. (See ECF No. 30 at 17.)

As with their causation claim, Defendants once again claim that Plaintiffs could not have been

retaliated against because “the underlying civil actions preceded” Plaintiffs’ suit. (Id.)

Defendants then claim there is no clearly established right “that prevents a party from prosecuting

civil claims against a party simply because that party may later bring a suit of their own.” (Id.)

Defendants mischaracterize the right at issue here. As stated previously, the retaliation

does not stem from the violations but the decision to prosecute. Taking facts and inferences in

the light most favorable to Plaintiffs, Defendants chose to proceed with the Civil Enforcement

Suits only after Plaintiffs filed their Previous Federal Suit. Thus, Defendants’ attempt to

characterize the right as a freedom from prosecution “simply because that party may later bring a

suit of their own,” (id. (emphasis added)), is not grounded in the facts. Rather, the right is better

construed as a right to engage in First Amendment protected speech free from a retaliatory

prosecution.

Qualified immunity protects public officials “from liability for civil damages if their

actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The immunity serves as “an entitlement not to stand trial

or face the other burdens of litigation. The privilege is an immunity from suit rather than a mere

defense to liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001). For a constitutional right to be

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clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Id. at 202. The two step inquiry for

qualified immunity requires a court to determine “[f]irst . . . whether the facts that a plaintiff has

alleged . . . make out a violation of a constitutional right” and “[s]econd . . . whether the right at

issue was ‘clearly established’ at the time of defendant's alleged misconduct.” Peason v.

Callahan, 555 U.S. 223, 232 (2009).

Both steps turn in Plaintiffs favor. First, a plaintiff has the First Amendment right “to

appeal to courts and other forums established by the government for resolution of legal disputes.”

Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 386 (2011). Here, Plaintiffs assert that they

did so. They claim that it was the filing of their Previous Federal Suit that caused Defendants to

initiate the Civil Enforcement Actions. (See ECF No. 28 at ¶¶ 14–22.) Second, the contours of

that are also clearly established. The “law is settled that as a general matter the First Amendment

prohibits government officials from subjecting an individual to retaliatory actions” for engaging

in First Amendment activity. Hartman v. Moore, 547 U.S. 250, 256 (2006); see also, e.g.,

Blankenship v. Manchin, 471 F.3d 523, 533 (2006) (“In sum, the general proposition that a

government official may not retaliate against a citizen for the exercise of a constitutional right is

clearly established law. . . .”). Thus, Defendants should have reasonably known that they could

not retaliate against Plaintiffs for their protected conduct.

Accordingly, Defendants are not entitled to qualified immunity at this stage.

iii. Official capacity claims under § 1983

Defendants also specifically ask for dismissal of the official capacity claims brought under

Count I. (See ECF No. 30 at 18–19.) They argue that, consistent with Supreme Court precedent,

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“a state is not a person within the meaning of . . . § 1983, and therefore, a state is not subject to

liability or damages in a [§] 1983 action. (Id. at 18 (citing generally Will v. Michigan Department

of State Police, 491 U.S. 58 (1989)). Since the state has not waived its sovereign immunity,

Defendants claim that any claims against the state under § 1983, which include official capacity

claims, must be dismissed. (See id. at 19.)

In response, Plaintiffs assert two, rather underdeveloped arguments. First, Plaintiffs seem

to suggest that their suit is, at least in part, a suit for prospective relief. (See ECF No. 33 at 12

(“[Defendants’ Eleventh Amendment argument] ignores the fact that they have been sued for non-

monetary relief, including injunctive relief and attorney’s fees, costs and expenses, in each of

Plaintiffs’ claims, which [Eleventh] Amendment immunity does not apply to.”).) Second,

Plaintiffs argue that any Eleventh Amendment immunity has been waived “to the extent of

[Defendants] have procured insurance coverage.” (Id.)

The Eleventh Amendment prohibits “[t]he judicial power of the United States” from

extending to suits “commenced or prosecuted against one of the United States by Citizens of

another State.” U.S. Const. amend XI. For over a century, the Eleventh Amendment has been

interpreted as also barring a “citizen from bringing suit against the citizen's own State in federal

court.” Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468, 472

(1987) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)).

There are three notable exceptions to a state’s right to avail itself of sovereign immunity in

federal court. See Lee-Thomas v. Prince George’s County Public Schools, 666 F.3d 224, 248–49

(2012). The first arises when Congress affirmatively abrogates the immunity by conveying its

unequivocal intention to do so “and acts pursuant to a valid grant of constitutional authority.” Id.

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at 249 (quoting Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363

(2001)). The second exception is the recognized principle that “the Eleventh Amendment permits

suits for prospective injunctive relief against state officials acting in violation of federal law.” Id.

(quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)). The third exception

recognizes that a state “remains free to waive its Eleventh Amendment immunity from suit in a

federal court.” Id. (quoting Lapides v. Board of Regents of University Systems of Georgia, 535

U.S. 613, 618 (2002)). Plaintiffs only raise arguments related to the second and third exceptions.

The second exception to state sovereign immunity, also known as the Ex Parte Young

exception, is inapplicable here. To begin, the Ex Parte Young exception only applies to state

officials, not the state itself or its agencies. See Biggs v. North Carolina Department of Public

Safety, 953 F.3d 236, 242 (4th Cir. 2020) (“While under the doctrine set forth in Ex Parte Young .

. . state officials may be sued in their official capacities for prospective injunctive relief without

violating the Eleventh Amendment, the same doctrine does not extend to states or state agencies.”)

(quoting Monroe v. Arkansas State University, 495 F.3d 591, 594 (8th Cir. 2007)). Since

Defendant WVDEP is a state agency, it is entitled to immunity even for prospective relief.

The second exception also does not apply to Plaintiffs’ official capacity claims against the

individual Defendants. As part of the Ex Parte Young exception, a federal court may “issue

prospective, injunctive relief against a state officer to prevent ongoing violations of federal law,

on the rationale that such a suit is not one against the state for purposes of the Eleventh

Amendment.” Biggs, 953 F.3d at 242 (quoting Bland v. Roberts, 730 F.3d 368, 390 (4th Cir.

2013)). To meet that exception, however, a court must determine “whether [the] complaint

alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”

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Id. at 242–43 (quoting Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535

U.S. 635, 645 (2002)).

Notably, those allegations are lacking in the Amended Complaint. With respect to the

retaliation claim, Plaintiffs state in a conclusory fashion that Defendants “continu[e] to deprive

them of the rights secured” by the First Amendment. (ECF No. 28 at ¶ 39.) Yet the actual facts

pled do not support that conclusion. Instead, Plaintiffs claim the retaliation occurred when

Defendants “fil[ed]the Circuit Court Claims described herein and throughout in state court against

Plaintiffs.” (Id. at ¶ 40.) Although those suits continue, the alleged deprivation is the moment

of filing, not prosecution of those suits themselves.4 In other words, the retaliatory action was

completed once Defendants filed their Civil Enforcement Suits. Because Plaintiffs’ complaint

fails to adequately plead an ongoing constitutional violation, the second exception to sovereign

immunity does not apply in this case.

Nor does the third exception to sovereign immunity apply here. It is true that, under West

Virginia law, the state waives sovereign immunity to the extent that it procures insurance for a

specific claim. An exception to sovereign immunity under the West Virginia Constitution comes

in the form of West Virginia Code Section 29-12-5(a)(4). That section sets forth a waiver where

“(1) a state agency has acquired liability insurance with legislative authorization and (2) the

plaintiff suing the agency seeks recovery only ‘under and up to the limits’ of the available

insurance coverage.” Spurling v. Metropolitan Life Insurance Co., 2 025 WL 1840669, at *5

(S.D. W. Va. July 3, 2025) (citing Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 310 S.E.2d

4 If this Court did find that the federal rights deprivation is the prosecution of the Civil Enforcement Suits, then it

would likely have to decline jurisdiction of this case under Younger abstention. See Laurel Sand & Gravel, Inc. v.

Wilson, 519 F.3d 156, 165 (4th Cir. 2008). If that were the case, then the case would have to be dismissed with

prejudice. See Nivens v. Gilchrist, 444 F.3d 237, 247 (4th Cir. 2006).

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675, 688 (W. Va. 1983)).

Even though Plaintiffs make a barebones argument regarding Defendants’ insurance, it is

without merit. The Supreme Court of Appeals of West Viriginia has stated that “the state

insurance policy exception to sovereign immunity, created by West Virginia Code § 29–12–5(a)(4)

. . . applies only to immunity under the West Virginia Constitution.” West Virginia Bd. of Educ.

v. Marple, 236 W. Va. 654, 662, 783 S.E.2d 75, 83 (2015) (emphasis original). Any waiver of

sovereign immunity must be by “express language, or by such overwhelming implication from the

text as [will] leave no room for any other reasonable construction.” Westinghouse Elec. Corp. v.

West Virginia Department of Highways, 845 F.2d 468, 470 (4th Cir. 1988). The insurance statute

has not been held as an unequivocal waiver of sovereign immunity for federal constitutional

claims. See Hood v. West Virgina Department of Health and Human Resources, 2023 WL

350409, at * 3 (S.D. W. Va. Jan. 20, 2023) (collecting cases). Thus, even assuming Plaintiffs’

unsupported assertion that the Defendants did procure insurance, that would still not result in a

waiver of sovereign immunity for the § 1983 claim.

Because no exception applies, Defendants are entitled to Eleventh Amendment immunity

for all official capacity claims.

iv. Punitive damages under § 1983

Defendants next claim that Plaintiffs are not entitled to punitive damages under federal

law. They state that it is “well established that punitive damages are not available against the

State in a § 1983 claim.” (ECF No. 30 at 15.) Plaintiffs respond that “Defendants do not contest

that such damages are available for Plaintiffs’ § 1983 claims against the individual Defendants in

their individual capacities.” (ECF No. 33 at 11.)

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Both parties are correct. “Punitive damages are not available in suits under § 1983 against

government entities.” Wells v. Board of Trustees of California State University, 393 F. Supp. 2d

990, 998 (N.D. Cal. 2005) (citing Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529

U.S. 765, 785 (2000)). When a state official is acting in their official capacity, they are also

immune from punitive damages. Will v. Michigan Department of State Police, 491 U.S. 58, 71

(1989). Yet punitive damages are available for individual capacity claims against a state official.

Smith v. Wade, 461 U.S. 30, 35 (1983). Of course, a plaintiff may only collect those punitive

damages where a “defendant's conduct is shown to be motivated by evil motive or intent, or when

it involves reckless or callous indifference to the federally protected rights of others.” Johnson v.

City of Fayetteville, 91 F. Supp. 2d 775, 817 (E.D.N.C. 2015) (citing Smith v. Wade, 461 U.S. 30,

56 (1983)). At this point, however, the claim may remain.

Accordingly, Plaintiffs may pursue punitive damages under § 1983 against Defendants for

individual capacity claims

B. Counts II and IV: Fourteenth Amendment due process claim and abuse of

process

Defendants raise a variety of arguments related to Counts II and IV.5 However, the only

one that the Court needs to address, and which justifies dismissal, is the argument that Plaintiffs’

claim is not ripe for adjudication.

“Ripeness concerns the appropriate timing of judicial intervention,” Cooksey v. Futrell,

721 F.3d 226, 240 (4th Cir. 2013), and serves as “a justiciability doctrine designed ‘to prevent the

courts, through avoidance of premature adjudication, from entangling themselves in abstract

disagreements.’” National Park Hospitality Association v. Department of Interior, 538 U.S. 803,

5 Defendants and Plaintiffs address both of these counts together.

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808 (2003) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967)). Ripeness as

a doctrine draws its origin both from Article III standing and prudential considerations. See id.

When assessing ripeness, a court considers “(1) the fitness of the issues for judicial decision

and (2) the hardship to the parties of withholding court consideration.” In re Naranjo, 768 F.3d

332, 347 (4th Cir. 2014) (quoting Cooksey, 721 F.3d at 240). As for the first prong, “[a] case is

fit for adjudication when the action in controversy is final and not dependent on future

uncertainties.” Scroggins v. Lee’s Crossing Homeowners Association, 718 F.3d 262, 270 (4th

Cir. 2013). By contrast, fitness is absent and the “claim is not ripe when ‘it rests upon contingent

future events that may not occur as anticipated.’” In re Naranjo, 768 F.3d at 347 (quoting

Scroggins, 718 F.3d at 270). Ideally, a fit case simply presents legal issues for a court to consider.

Id. The second prong regarding hardship assesses “the immediacy of the threat and the burden

imposed on the [parties].” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006).

In response to Defendants’ assertion, Plaintiffs state that their due process claim is founded

on the following facts: (1) that Defendants failed to “serve upon Plaintiffs the Notices of Violation”

which form the basis of Defendants’ Civil Enforcement Suits; (2) that Defendants failed to

“effectuate proper service” of Defendants’ Civil Enforcements Suits; and (3) “Defendants’

decision to file the [Civil Enforcement Suits] against Plaintiffs seeking to recover millions of

dollars in monetary penalties while foregoing any of the required administrative procedures . . . as

prescribed by state statute . . . .” (ECF No. 33 at 5–6.) As such, Plaintiffs aver that they were

“deprived . . . of the opportunity to engage in the administrative process for resolving [the Notices

of Violation] and” that Defendants’ choice to file the suit “compromised [their] ability to preserve

relevant evidence and mount a defense to [the Civil Enforcement Suits].” (Id. at 5.)

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Yet, as Defendants note, these deprivations are all “contingent upon the State Court’s

ruling.” (ECF No. 30 at 6.) An examination of the procedural due process, substantive due

process, and abuse of process claims highlights why that is.

i. Procedural due process

To plead a procedural due process claim, Plaintiffs must show three elements. First, they

must show that they possessed “a constitutionally cognizable life, liberty, or property interest.”

Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013). Second, they “must show that

the deprivation of that interest was caused by some form of state action.” Id. Third, Plaintiffs

are required to show “that the procedures employed were constitutionally inadequate.” Id.

(quoting Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009)).

Plaintiffs’ Amended Complaint does not directly state what interest is deprived under

procedural due process. From the Amended Complaint, it seems the interest asserted is the

property interest in the “exorbitant monetary penalties” that the Defendants “now seek . . . in

connection with the Notices of Violation[s].” (ECF No. 28 at ¶ 55.) As Plaintiffs rightly state,

the Defendants now seek. Yet, it is unclear if they will be successful in that endeavor. In other

words, whether or not Plaintiffs will be deprived of their protected interest is contingent upon the

state court’s ruling. Thus, Plaintiffs procedural due process claim is not ripe.

ii. Substantive due process

Similarly, Plaintiffs do not have a ripe substantive due process claim. “[A] plaintiff

asserting a § 1983 substantive due process claim must allege both the deprivation of his life, liberty

or property interest by a state actor, and that the deprivation of this interest was ‘arbitrary in the

constitutional sense.’” Callahan v. North Carolina Department of Public Safety, 18 F.4th 142,

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145 (4th Cir. 2021) (citing Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). To be

arbitrary in the constitutional sense, the deprivation involved must “shock[] the conscience.”

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

Here, Plaintiffs assert that the liberty interest at issue is “the fundamental right to challenge

government actions by Defendants and to hold the Defendants, as government actors, accountable

for violations of Plaintiffs’ constitutional rights.” (ECF No. 28 at ¶ 56.) Even assuming that

Plaintiffs’ asserted right is a constitutionally cognizable liberty interest under the Fourteenth

Amendment,6 it is unclear if Plaintiffs have been deprived of such an opportunity. Since

Plaintiffs are currently contesting Defendants’ Civil Enforcement Suits through the process

prescribed by state law, it is unclear if they have been deprived of their asserted right to challenge.

For purposes of a ripe due process claim, it does not matter what Defendants’ motivations

were. (See ECF No. 33 at 6 (suggesting that the choice to proceed with the Civil Enforcement

Suits in lieu of alternative actions “prove[s] both a violation of Plaintiffs’ due process rights and a

retaliatory animus”).) Rather, it matters if the procedures employed were constitutionally

adequate. Since the state proceedings continue to play out, the Court has no ability to assess the

adequacy of the process involved at this time.

iii. Abuse of process

Similarly, Defendants argue that Plaintiffs’ claim for abuse of process under state law is

not ripe.

Under West Virginia law, “abuse of process consists of the willful or malicious misuse or

misapplication of lawfully issued process to accomplish some purpose not intended or warranted

6 A “right to challenge” would seem to draw its essence from the text of the First Amendment right to petition.

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by that process.” Williamson v. Harden, 214 W. Va. 77, 80, 585 S.E.2d 369, 372 (2003) (quoting

Preiser v. MacQueen, 177 W. Va. 273, 279, 352 S.E.2d 22, 28 (1985)). “The elements of an

abuse of process claim include ‘first, an ulterior purpose, and second, a willful act in the use of the

process not proper in the regular conduct of the proceeding.’” Ballock v. Costlow, 430 F. Supp.

3d 146, 158 (N.D. W. Va. 2019) (quoting Preiser, 352 S.E.2d at 28 n.8) (emphasis removed).

Unlike a malicious prosecution claim, an abuse of process claim stems from “the improper use of

a regular issued process, not for maliciously causing process to issue.” Southern States

Cooperative, Inc. v. I.S.P. Co., 198 F. Supp. 2d 807, 816 (N.D. W. Va. 2002) (quoting Preiser,

352 S.E.2d at 28–29)

Plaintiffs’ claim is, at best, not ripe. To begin, the only viable basis of an abuse of process

claim would be Defendants’ conduct during the Civil Enforcement Suits.7 Simply initiating a

suit, even with ill intent, is insufficient to form the basis of an abuse of process claim. Hoback v.

Cox, 2021 WL 3669324, at *6 (S.D. W. Va. Aug. 18, 2021) (“Because the distinctive nature of an

action for abuse of process . . . is that it lies for the improper use of a regularly issued process, not

for maliciously causing process to issue, . . . the mere filing of a complaint does not give rise to a

claim for abuse of process.” (citations omitted)). This means the only way a viable claim can

arise is if Defendants do something during the pendency of the Civil Enforcement Suits that would

be considered abuse of process. However, “there is no liability” for a claim of abuse of process

7 Plaintiffs’ Amended Complaint suggests that the basis of their abuse of process claim is either Defendants’ choice

to sue Plaintiffs, or that Defendants failed to adhere to unspecified administrative procedures. (See ECF No. 28 at ¶

79 (“Upon information and belief, the Defendants intentionally subverted the proceedings prescribed by administrative

and statutory law in an attempt to accomplish their animus plan. . . .”).) Plaintiffs have never explained what these

procedures were. However, Defendants cite to West Virginia law which says the Secretary “may issue an order

stating with reasonable specificity the nature of the violation and requiring compliance within a reasonable specified

time period, or the secretary may commence a civil action in [a] circuit court . . . for appropriate relief, including a

temporary or permanent injunction.” (ECF No. 30 at 7 n.3 (emphasis added).)

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“where the defendant has done nothing more than carry out [a lawful] process to its authorized

conclusion.” Launi v. Hampshire County Prosecuting Attorney’s Office, 249 W. Va. 262, 273,

895 S.E.2d 117, 128 (2023) (quoting Preiser, 352 S.E.2d at 28 n.8). Given that the process

continues to play out, and that Plaintiffs have not shown anything within that process that was

abusive, it is unclear how Defendants have abused the process of the Civil Enforcement Suits.

Perhaps Defendants will do something in the future to abuse the state process. Given that the

Court can only speculate as to what that abuse would be, Plaintiffs’ claim for abuse of process is

not ripe.

For those reasons, Counts II and IV of the Amended Complaint must be DISMISSED

WITHOUT PREJUDICE.

C. Count III: West Virginia constitutional claims

For Count III, Plaintiffs allege multiple violations of their rights protected by the West

Virginia Constitution. These include Article III, §§ 7, 10, and 17, which are, respectively,

freedom of speech, due process rights, and the right to petition. (ECF No. 28 at ¶ 65.) This Court

will first address § 10 before addressing §§ 7 and 17 together.

i. State due process rights (Article III, § 10)

Plaintiffs’ Amended Complaint alleges that, for similar reasons as stated in Count II,

Defendants deprived them of their due process rights under Article III, § 10 of the West Vrignia

Constitution. (See ECF No. 28 at ¶¶ 64–70.)

Defendants contend that Plaintiffs “have not alleged sufficient facts to state a claim” under

§ 10. They note that the Supreme Court of Appeals of West Virginia has indicated that it “relie[s]

upon federal interpretation of the due process clause of the United States Constitution to determine

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the nature and scope of Article III § 10 of the West Virginia Constitution.” (ECF No. 30 at 11

(citing North v. West Virginia Board of Regents, 160 W. Va. 248, 253–54, 233 S.E.2d 411, 415–

16 (1977)).) As such, Defendants argue that the Court should analyze the § 10 claim in a similar

manner as the federal due process claim. Specifically, Defendants point to Parratt v. Taylor for

the proposition that “[t]he fundamental requirement of due process is the opportunity to be heard,

and it is an opportunity which must be granted at a meaningful time and in a meaningful manner.”

(Id. (citing Parratt v. Taylor, 451 U.S. 527, 540 (1980)).)

Plaintiffs for their part largely repeat their same arguments made in Count II. They claim

to “have alleged that they were not served with/put on notice of the Notices of Violation prior to

the filing of the three Circuit Court actions to enforce them,” and that “Defendants did not decide

to pursue those Notices until” the filing of the Civil Enforcement Suits. (ECF No. 33 at 8.)

Similar to Count II, Plaintiffs also claim Defendants did not engage in an unspecified

“administrative process” and “unquestionably compromised Plaintiffs’ ability to gather evidence”

by “waiting in some cases six and seven years to put Plaintiff[s] on notice of or seek to enforce

these Notices of Violation.”

Defendants’ belief that Count II and the § 10 claim should be analyzed under a similar

framework has support. See Brown v. Mason County Commission, 2019 WL 6654124, at *4 (S.D.

W. Va. Dec. 5, 2019) (“In deciding whether a party deprived someone of their property or liberty

interest without due process of law under the West Virginia Constitution, the West Virginia

Supreme Court looks to, and follows federal case law and precedent.”). As such, the claim should

be dismissed as not ripe. Although the ripeness argument was not specifically raised as to Count

III, a district court is empowered to consider the issue of ripeness on its own. See National Park

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Hospitality Association, 538 U.S. at 808 (“The ripeness doctrine is drawn both from Article III

limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction, . . .

[B]ut, even in a case raising only prudential concerns, the question of ripeness may be considered

on a court's own motion.” (quotations omitted)).

Like Count II, it is unclear if Plaintiffs were given the opportunity to be heard or if their

ability to “gather evidence” truly deprived them of that meaningful opportunity. Regardless, it is

clear that these are not the sort of purely legal issues that make a case fit for adjudication. See In

re Naranjo, 768 F.3d at 347 (“A case is fit for adjudication when the action in controversy is final

and not dependent on future uncertainties; conversely, a claim is not ripe when it rests upon

contingent future events that may not occur as anticipated. . . . In addition, a fit case would ideally

present ‘purely legal’ issues.” (quotations omitted)).

As noted earlier in this opinion, the question of any deprivation in violation of the due

process clause remains unanswered. As such, it would be improper for the Court to adjudicate a

right that may or may not be violated in the end. Count III, with respect to the § 10 due process

claim, must be DISMISSED WITHOUT PREJUDICE.

ii. State rights to freedom of speech and to petition (Article III, §§ 7 and 17)

Similar to Count I, Defendants raise a variety of arguments as to why Count III should be

dismissed. As such, the Court will first address the merits of Plaintiffs’ §§ 7 and 17 claim,

followed by an analysis of qualified immunity, the availability of monetary damages, the

availability of punitive damages, and finally the official capacity claims.

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a. The merits of the §§ 7 and 17 claims

Regarding the merits of Plaintiffs’ §§ 7 and 17 claims, Defendants state that these claims

“can be analyzed under the same framework [as Count I] has been analyzed.” (ECF No. 30 at 9.)

Defendants then argue “[i]n the same vein as [Count I] . . . Plaintiffs[‘] claims fail due to the lack

of meeting the causation element as illustrated above.” (Id.) As such, the only argument

Defendants raise concerns causation and the allegation that “Defendants in this matter had issued

[the Notices of Violation] to the Plaintiffs” before they initiated the Civil Enforcement Suits. (Id.

at 9–10.)

Defendants’ proposition that §§ 7 and 17 can be analyzed in the same manner as a § 1983

retaliation claim has support. See McGraw v. Imperial Marketing, 196 W. Va. 346, 359 n.43, 472

S.E.2d 792, 805 n.39 (1996) (“The First Amendment to the United States Constitution and Article

III, Section 7 of the West Virginia Constitution are virtually identical in pertinent parts. . . . [W]e

use the First Amendment to the United States Constitution and Article III, Section 7 of the West

Virginia Constitution interchangeably.”); see also State v. Berrill, 196 W. Va. 578, 581–86, 474

S.E.2d 508, 512–16 (1996) (analyzing a First Amendment claim and a claim under the West

Virginia Constitution together). Therefore, the Court will simply adopt the same reasoning

applied to Count I. Accordingly, Plaintiffs have sufficiently pled a cause of action for Count III

with respect to the §§ 7 and 17 claims.

b. Qualified immunity

Similar to their discussion of the merits of a §§ 7 and 17 claim, Defendants also state that

the qualified immunity analysis should follow that of Count I. (See ECF No. 30 at 16–17 (“West

Virginia follows a similar framework as the Supreme Court outlined in West Virginia Regional

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Jail and Correctional Facility Authority v. A.B., 234 W. Va. 492, 503, 766 S.E.2d 751, 762

(2014).”).)

As before, the Court will simply adopt the reasoning applied to Count I to qualified

immunity for §§ 7 and 17. Accordingly, Defendants are not entitled to qualified immunity on the

state law constitutional claims.

c. Monetary damages

Defendants argue that, even if Plaintiffs have alleged a cause of action under §§ 7 and 17,

they do not “provide a cause of action for money damages.” (ECF No. 30 at 12.) For support,

Defendants note that in Fields v. Mellinger, the Supreme Court of Appeals of West Virginia held

that “there was no right of action for money damages under Article III, § 6” of the West Virginia

Constitution. (Id. at 13.) The holding was based on a “lack of an authorizing statutory scheme

[under West Virginia law] akin to § 1983 and the fact that there were alternative remedies

available.” (Id. (citing Fields v. Mellinger, 851 S.E.2d 789, 792–99 (W. Va. 2020)).) Plaintiffs

claim the same analysis should be applied to §§ 7 and 17. Since Plaintiffs have “multiple

alternative remedies” through § 1983, and because there is no “authorizing statute” akin to § 1983

claims, Defendants believe the Court should dismiss Count III “to the extent Plaintiff[s] [are]

asking for money damages.” (Id.)

For their part, Plaintiffs do not dispute much of Defendants’ argument. They first claim

they were not seeking monetary penalties against Defendant WVDEP. (ECF No. 33 at 9.)

Plaintiffs then state that if “the Court believes monetary damages to be unavailable to for claimed

violations of Article III, Sections 7 and 17 . . . the claim for all damages other than monetary

damages for violations of Article III, Sections 7 and 17 must stand and survive Defendants’ Motion

22

to Dismiss.” (Id.)

Defendants’ uncontested argument has merit. In Fields, the Supreme Court of Appeals of

West Virginia ruled that there was no claim for monetary damages under § 6 because “alternative

remedies” existed in the absence of a state authorizing scheme. Fields, 244 W. Va. at 136, 851

S.E.2d at 799. Among those remedies included the ability to bring suit under 42 U.S.C. § 1983.

See id. As should be clear from the preceding sections of this opinion, Plaintiffs have the ability

to recover monetary damages under § 1983 for violations of their First Amendment rights. That

includes the right to speech and the right to petition. Accordingly, § 1983 serves as an alternative

remedy and no monetary damages appear to be recoverable for the corresponding state claims.

This conclusion is supported by caselaw within this district. Since West Virginia “lacks

a state analogue to § 1983,” courts within the district “have generally held money damages are not

available for violations of [A]rticle III rights.” Billiter v. Jones, 2020 WL 118595, at *5 (S.D. W.

Va. Jan. 9, 2020) (concluding no monetary damages are recoverable under § 7 claims) (collecting

cases). True, a suit seeking non-monetary damages may be permissible. See id. (“The Supreme

Court of Appeals did, however, authorize injunctive relief in Harrah v. Leverette for an article III,

section 5 claim.”). Yet given the application of Fields, this Court will not depart from its

colleagues within the district with respect to the availability of monetary damages.

Accordingly, Plaintiffs may not recover monetary damages under Count III.

d. Punitive damages

Under Count III, Plaintiffs claim they are entitled to punitive damages against both

WVDEP and the individual defendants. (See ECF No. 28 at ¶ 72.) Defendants assert that

Plaintiffs are not entitled to such damages since West Virginia Code § 55-17-4(3) precludes

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collecting punitive damages from a government agency. (ECF No. 30 at 15.) Defendants also

claim that “Plaintiffs cannot receive punitive damages as they are not seeking money damages,”

since “the general rule in West Virginia [is] that one cannot recover punitive damages when

compensatory damages have not been awarded.” (ECF No. 35 at 11 (citing Lunsford v. Shy, 243

W. Va. 175, 182, 842 S.E.2d 728, 735 (2020).) Plaintiffs claim that other courts within the district

have found that the waiver of punitive damages is not applicable in federal courts. (ECF No. 33

at 11 (citing Smith v. Allred, 2016 WL 3094008, at *15–16 (S.D. W. Va. June 1, 2016).)

Defendants’ contention that Plaintiffs are not seeking monetary damages is factually

incorrect. (See ECF No. 28 at ¶ 74 “Plaintiffs hereby demand from the Defendants other than

WVDEP injunctive relief, punitive damages, attorney’s fees, costs and expenses, plus monetary

damages for monetary loss and non-monetary loss. . . .”).) Despite that shortcoming, the general

argument that punitive damages are not recoverable for the §§ 7 and 17 claims is well taken. As

the Supreme Court of Appeals of West Virginia has stated, “punitive damages [generally] must

bear a reasonable relationship to actual damages because compensatory damages provide a

reasonable measure of likely harm.” Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 667, 413

S.E.2d 897, 908 (1991). A court may not award punitive damages for a West Virginia state law

claim without an award of compensatory damages. Cf id. (“Therefore, we overrule Syllabus Point

3 of Wells to the extent that it stands for the proposition that a jury may return an award for punitive

damages without finding any compensatory damages.” (emphasis original)). Since Plaintiffs are

not able to recover monetary damages for their §§ 7 or 17 claims, it logically follows that they

cannot recover punitive damages.

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While Plaintiffs may be correct that they can theoretically recover punitive damages

against these Defendants, there is no such recovery for the state claims they have asserted.

Because there is no right to compensatory damages for these claims under West Virginia law, there

is no ability to recover punitive damages under Count III.

e. Official capacity claims under §§ 7 and 17

Defendants raise for the first time in their reply brief that there is sovereign immunity

related to the official capacity claims on the state law claims.8 In fact, Defendants’ only argument

regarding Plaintiffs’ official capacity claims for Count III regards diversity and, by implication,

supplemental jurisdiction.9

Defendants’ failure to raise the issue means it is, at least for this order, waived. A party

must raise their arguments in the opening brief of their motions. “Generally, new arguments

cannot be raised in a reply brief before the district court.” De Simone v. VSL Pharmaceuticals,

Inc., 36 F.4th 518, 531 (4th Cir. 2022). “A party waives an argument by failing to present it in its

opening brief or by failing to develop its argument–even if its brief takes a passing shot at the

issues.” Grayson O Co. v. Agadir International LLC, 856 F.3d 307, 316 (4th Cir. 2015).

Here, Plaintiffs only took a passing shot at claiming sovereign immunity for official

capacity claims in their reply brief. The opening brief clearly frames the issue of Eleventh

8 (Compare ECF No. 30 at 18 (“Based on Plaintiffs’ Complaint, Plaintiffs’ claims against the WVDEP, Defendant

Ward, and Defendant Emery in their official capacities, are claims under 42 USC §1983 against the State of West

Virginia. As the State has not waived its right to the protections of the 11th Amendment, Plaintiffs’ claims against

the State must be dismissed before this Court.”), with ECF No. 35 at 10 (“Accordingly, the State Defendants are

entitled to Eleventh Amendment Immunity on both federal and state law claims.”).)

9 (See ECF No. 30 at 19–20 (“As described above, the WVDEP, Defendant Ward, and Defendant Emery in their

official capacities have not waived their right to the protections of the 11th Amendment, thus the Federal Law claims

against the state must be dismissed. . . . The second provision of subject matter jurisdiction, diversity of citizenship,

has not been met as Plaintiffs are corporations lawfully organized in the State of West Virginia with a principal place

of business in the State. . . . Given this, the Court lacks subject matter jurisdiction over the state law claims contained

in counts 3, 4, 5, and 6 against the WVDEP, Defendant Wade, and Defendant Emery, in their official capacities.”).)

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Amendment immunity with respect to § 1983 claims. However, even the reply brief fails to

explain how that analysis interacts with the state law claims. Having raised sovereign immunity,

it was Defendants’ burden to prove they were entitled to it. See Williams v. Big Picture Loans,

LLC, 929 F.3d 170, 176 (4th Cir. 2019) (“Given the unique attributes of sovereign immunity, we

have held that the burden of proof falls to an entity seeking immunity as an arm of the state, even

though a plaintiff generally bears the burden to prove subject matter jurisdiction.”). Defendants

have failed to meet the burden based on their briefing.

In any event, it is not immediately clear that Defendants are entitled to immunity. As

previously stated, Plaintiffs lack the ability to recover monetary damages generally for their state

constitutional claims. It is not clear, however, that a plaintiff cannot seek prospective relief for a

claim under Article III, §§ 7 or 17. While it was clear Plaintiffs could not meet the standard for

prospective relief under federal law, Defendants failed to make it apparent to the Court that

Plaintiffs cannot receive prospective relief under state law. In fact, the Court has found instances

where a right to prospective relief for violations of the West Virginia Constitution have been

authorized. See Billiter v. Jones, 2020 WL 118595, at *5 (S.D. W. Va. Jan. 9, 2020) (allowing a

claim for injunctive relief under Article III, §§ 7 and 16 to proceed). Whether Plaintiffs may seek

that relief against individuals in their official or individual capacity is not clear, but the Court will

not develop that argument for Defendants.

Since Defendants have failed to develop that argument in their opening brief, the issue is

waived for the purposes of this opinion only.10

10 However, “subject-matter jurisdiction can never be waived.” United States v. Moran, 70 F.4th 797, 802 (4th Cir.

2023) (citing Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)). If it is later determined that the Court lacks subject-

matter jurisdiction over this specific claim, then the Court will proceed accordingly. See Fed. R. Civ. P. 12(h)(3).

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D. Count V: civil conspiracy

Count V of Plaintiffs’ Complaint asserts civil conspiracy among the Defendants. Under

West Virginia law, civil conspiracy is “not a standalone cause of action.” Green v. Putnam

County Commission, 2022 WL 16859755, at *6 (S.D. W. Va. Nov. 10, 2022). Instead, it is a

“legal doctrine under which liability for a tort may be imposed on people who did not actually

commit the tort themselves but who shared a common plan” with the tortfeasors themselves. Id.

(quotation omitted). Under § 1983, however, civil conspiracy is a standalone claim. It requires

the plaintiff to prove “1) the defendants acted jointly in concert, 2) an overt act was done in

furtherance of the conspiracy, and 3) the overt act resulted in deprivation of plaintiff's

constitutional right.” Id. (citing Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)).

Here, Defendants only argue that, because “the proceeding Counts [I–V of Plaintiffs’

Amended Complaint] fail, then [so] too must” the civil conspiracy claim. (ECF No. 30 at 13.)

Because Counts I and III remain, Defendants’ sole argument is moot. Thus, Defendants’

Motion as to Count V is DENIED.

E. Count VI: Negligence

Plaintiffs plead Count VI as an “[i]n the alternative” allegation of general negligence.

(ECF No. 28 at ¶ 95.) They claim that Defendants owed them “a duty of reasonable care to follow

the law as to the procedures required to enforce Notices of Violation.” (Id.)

Defendants claim that Count VI fails to plausibly state a claim for negligence. Notably,

Defendants observe that Plaintiffs’ Amended Complaint generally alleges “intentional torts.”

(ECF No. 30 at 14.) Yet the mere “allegation that the Defendants were also negligent at the same

time does not transform the claims based on intentional acts into a negligence claim.” (Id.)

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Plaintiffs dispute the characterization. They claim that, despite their previous assertions

of intentional or malicious acts, Defendants may have actually initiated the Civil Enforcement

Suits “without conducting due diligence to know that there was no factual or legal basis for those

claims.” (ECF No. 33 at 10.) This “due diligence failure” apparently took the form of “failing

to effectuate service of process upon Plaintiffs[,] . . . failing to follow the law in pursuing

enforcement of” the Notices of Violation, or “foregoing any of the required administrative

procedures or seeking injunctive relief as prescribed by the state statute.” (Id.) Plaintiffs then

claim that if they “prove Defendants failed to serve Notices of Violation upon [them] . . . but fail

to prove that Defendants did so intentionally and the jury concludes it was simply oversight,” then

they can make out a negligence claim. (Id.) Alternatively, Plaintiffs aver that Defendants “failed

. . . to conduct due diligence to ensure that there was any factual or legal basis for the issuance of

the Notices of Violation and that there is no factual or legal basis for their issuance, but fail to

prove that Defendants did so intentionally to retaliate against Plaintiffs,” then Defendants would

similarly be liable for negligence. (Id.) Of note, neither of these allegations appear in Plaintiffs’

Amended Complaint.

A claim for negligence under West Virginia law requires the plaintiff to “show four basic

elements: duty, breach, causation, and damages.” Hersh v. E–T Enterprises, Ltd., 232 W.Va. 305,

310, 752 S.E.2d 336, 341 (2013). As a rule, a plaintiff cannot “prevail on a claim of simple

negligence based on [a defendant's] intentional act.” Smith v. Lusk, 533 F. App'x 280, 284 (4th

Cir. 2013) (citing Stone v. Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944)). “Conduct that supports

a negligence claim can be distinguished from conduct that supports an intentional tort claim by

examining the subjective intent of the alleged tortfeasor.” Weigle v. Pifer, 139 F. Supp. 3d 760,

28

780 (S.D. W. Va. 2015) (Copenhaver, J.). Rather, conduct that forms the basis of an intentional

tort “generally require[s] that the actor intend the consequences of an act, not simply the act itself.”

Id. (quoting Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998)). Merely alleging negligence does not

“turn an intentional tort into negligent conduct.” Id. (quoting Benavidez v. United States, 177

F.3d 927, 931 (10th Cir.1999)).

Here, Plaintiffs simply regurgitate the same factual allegations, yet claim that the actions

could be seen as negligent. The entirety of Plaintiffs’ Amended Complaint repeatedly states some

variation of the allegation that Plaintiffs’ actions were intentional or malicious in some way. (See

ECF No. 33 at ¶¶ 29–31, 44–45, 53–54, 60–61, 71–72, 79, 82–83, 90–91.) It is only in paragraph

96 where Plaintiffs state that all of the allegations “as described herein and throughout” are also a

“breach[] [of] the duty of reasonable care” owed to them. (ECF No. 28 at ¶ 96.) As described

throughout, Plaintiffs allege “Defendants intentionally bypassed the required administrative

procedures and statutory requirements.” (See, e.g., id. at ¶ 29.) Further, they assert that

Defendants exhibited a “knowingly, intentionally, and with a callous disregard” for Plaintiffs’

rights “by filing the Circuit Court Claims with no factual or legal basis.” (See, e.g., id. at ¶ 53.)

Plaintiffs’ allegation in their response brief that Defendants alternatively engaged in “simple

oversight” in failing to serve the Notices of Violations or failed to “conduct due diligence to ensure

that there was any factual or legal basis,” (ECF No. 33 at 10), lacks any support within the

Amended Complaint.

Because Plaintiffs are merely relying on intentional acts to form the basis of their

negligence claim, it cannot overcome a motion to dismiss. Therefore, Count VI of the Amended

Complaint is DISMISSED.

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IV. CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART

Defendants’ Motion to Dismiss. (ECF No. 29.) The Motion is DENIED as to Count I, for all

individual capacity claims against Defendants. It is also DENIED as to Count III’s prayer for

non-monetary relief brought under Article III, $$ 7 and 17 of the West Virginia Constitution.

Finally, it is DENIED as to Count V.

Except as stated above, Defendants’ Motion is otherwise GRANTED. Counts II, III (as

it relates to Article III, § 10 of the West Virginia Constitution), and IV are DISMISSED

WITHOUT PREJUDICE. Count VI is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: September 19, 2025

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Le JOHNSTON t—~™

UNITED STATES DISTRICT JUDGE

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