Petition for Writ of Certiorari — Todd Bowers, Petitioner v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO

No. ______

In the Supreme Court of the United States

__________________

TODD BOWERS,

Petitioner,

v.

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS, AND

HELPERS AFL-CIO,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

CHRISTIAN J. RIDDELL

Counsel of Record

THE RIDDELL LAW GROUP

329 S. Queen Street

Martinsburg, WV 25401

(304) 267-3949

mail@theriddelllawgroup.com

Counsel for Petitioner

February 8, 2023

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED FOR REVIEW

Whether it was proper for a district court to

maintain federal question jurisdiction upon Notice of

Removal and Response in Opposition/Motion to

Remand where Plaintiff’s claims as set forth in his

Complaint were based exclusively on state law and

were not substantially dependent upon the collective

bargaining allegedly giving rise to federal jurisdiction

under Labor Management Relations Act (“LMRA”).

Whether it was proper, upon assuming

jurisdiction, for the district court to dismiss

Plaintiff’s claims based on LMRA preemption.

Whether, notwithstanding its dismissal under

the LMRA, dismissal of Appellant’s claims on state

law grounds constitutes a violation of Appellants due

process rights under the 14th Amendment.

ii

LIST OF PARTIES

Petitioner:

1. Todd Bowers

Respondent:

1. International Brotherhood of Boilermakers,

Iron Ship Builders, Blacksmiths, Forgers,

and Helpers AFL-CIO

CORPORATE DISCLOSURE STATEMENT

Petitioner

is

not

a

nongovernmental

corporation or other corporate entity, and so is

exempted from this requirement per U.S. Supreme

Court Rule 29.6

STATEMENT OF RELATED PROCEEDINGS

United States District Court for the Northern

District of West Virginia

Todd Bowers v. International Brotherhood of

Boilermakers, Iron Ship Builders, Blacksmiths,

Forgers, and Helpers, AFL-CIO, 3:21-cv-00089-GMG

(January 20, 2022)

United States Court of Appeals for the Fourth Circuit

Todd Bowers v. International Brotherhood of

Boilermakers, Iron Ship Builders, Blacksmiths,

Forgers, and Helpers, AFL-CIO, Docket No. 22-1130

(November 10, 2022).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW............... i

LIST OF PARTIES ..................................................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ........................................v

OPINIONS BELOW ....................................................1

BASIS OF JURISDICTION ........................................1

STATUTORY OR CONSTITUTIONAL

PROVISIONS AT ISSUE ............................................2

STATEMENT OF THE CASE ....................................3

REASONS FOR GRANTING THE PETITION..........6

I.

STANDARD OF REVIEW ................................6

II.

THE

4TH

CIRCUIT

LACKED

JURISDICTION

BECAUSE

APPELLANT’S CLAIMS AS SET FORTH

IN THE COMPLAINT WERE BASED

EXCLUSIVELY ON STATE LAW AND

ARE

NOT

SUBSTANTIALLY

DEPENDENT ON ANY COLLECTIVE

BARGAINING AGREEMENT .........................7

III. THE 4TH CIRCUIT FURTHER ERRED IN

FINDING THAT APPELLANTS CLAIMS

WERE PREEMPTED BY THE LMRA

BECAUSE

THE

LMRA

IS

NOT

INTEGRAL TO APPELLANT’S CLAIMS

AND HIS COMPLAINT DOES NOT

REQUIRE THE COURT TO INTERPRET

THE OVA ........................................................15

iv

IV.

THE 4TH CIRCUIT ERRED IN FINDING

THAT NO PRIVATE CAUSE OF ACTION

EXISTS UNDER WEST VIRGINIA’S

CRIMINAL STATUTES, AND, IN SO

DOING, VIOLATED APPELLANTS DUE

PROCESS RIGHTS UNDER THE 14TH

AMENDMENT ................................................21

CONCLUSION ..........................................................36

APPENDIX

Appendix A

Opinion in the United States

Court of Appeals for the Fourth

Circuit

(November 10, 2022) ................ App. 1

Appendix B

Order

Granting

Defendant’s

Motion to Dismiss in the United

States District Court for the

Northern

District

of

West

Virginia

(January 20, 2022) ................... App. 9

v

TABLE OF AUTHORITIES

Cases

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985) ...................................... 7, 16, 18

Anderson v. Moulder,

183 W.Va. 77, 394 S.E.2d 61 (1990) ...................... 35

Balcorta v. Twentieth Century - Fox Film Corp.,

208 F.3d 1102 (9th Cir.2000) ................................. 16

Bass v. E.I Dupont de Nemours & Co.,

324 F.3d 761 (4th Cir. 2003) .................................... 7

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .................................................. 7

Beneficial Nat’l Bank v. Anderson,

539 U.S. 1 (2003) .................................................... 11

Blankenship v. Manchin,

471 F.3d 523 (4th Cir. 2006) ............................ 12, 17

Board of Regents v. Roth,

408 U.S. 564 (1972) ................................................ 22

Burnside v. Kiewit Pac. Corp.,

491 F.3d 1053 (9th Cir. 2007) .......................... 16, 20

Caterpillar, Inc. v. Williams,

482 U.S. 386, 107 S.Ct. 2425,

96 L.Ed.2d 318 (1987) ...................... 8, 11, 15, 18, 19

Conley v. Gibson,

355 U.S. 41 (1957) .................................................... 7

Cort v. Ash,

422 U.S. 66, 95 S.Ct. 2080,

45 L.Ed.2d 26 (1975) ........................................ 25, 31

vi

Cunningham Energy, LLC v. Outman,

No. 2:13-cv-20748, 2013 WL 5274361

(S.D. W. Va. Sept. 18, 2013) ................. 26, 27, 28, 34

Diaz de Gomez v. Wilkinson,

987 F.3d 359 (4th Cir. 2021) .............................. 6, 21

Firestone v. Southern California Gas Co.,

219 F.3d 1063 (9th Cir. 2000) .......................... 15, 16

Fort Halifax Packing Co. v. Coyne,

482 U.S. 1, 107 S.Ct. 2211 (1987) .......................... 16

Foy v. Giant Food, Inc.,

298 F.3d 284 (4th Cir. 2002) .............................. 7, 16

Gay v. Wall,

761 F.2d 175 (4th Cir.1985) ................................... 17

Gully v. First National Bank,

299 U.S. 109 (1936) ................................................ 11

Holmes Group, Inc. v. Vornado Air Circulation

Sys., Inc., 535 U.S. 826 (2002) ............................... 11

Horton v. Vinson,

No. 1:14-cv-192, 2015 WL 4774276

(N.D. W. Va. Aug. 12, 2015) ................................... 26

Hurley v. Allied Chem Corp.,

164 W.Va. 268,

262 S.E.2d 757 (1980) .................... 24, 25, 26, 30, 31

IBEW, AFL-CIO v. Hechler,

481 U.S. 851, 107 S.Ct. 2161 (1987) ...................... 18

Lingle v. Norge Div. of Magic Chef,

486 U.S. 399 (1988) ................................ 8, 15, 16, 20

vii

Livadas v. Bradshaw,

512 U.S. 107, 114 S.Ct. 2068,

129 L.Ed.2d 93 (1994) ...................................... 16, 20

Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149 (1908) ................................................ 11

Machinery Hauling, Inc. v. Steel of West Virginia,

384 S.E.2d 139 (1989) ................................ 32, 33, 34

Philips v. Pitt Cty. Mem’l Hosp.,

572 F.3d 176 (4th Cir. 2009) ............................ 12, 17

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ................................................ 12

Sartin ex rel. Sartin v. Evans,

186 W.Va. 717, 414 S.E.2d 874 (1991) ....... 28, 34-36

Soremekun v. Thrifty Payless, Inc.,

509 F.3d 978 (9th Cir. 2007) ............................ 16, 20

State v. Hoult,

113 W.Va. 587, 169 S.E. 241 (1933)....................... 30

State ex rel. Graney v. Sims,

144 W.Va. 72, 105 S.E.2d 886 (1958) .................... 30

State ex rel. Miller v. Locke,

253 S.E.2d 540 (1979) ............................................ 29

State ex rel. Slatton v. Boles,

147 W.Va. 674, 130 S.E.2d 192 (1963) .................. 30

Teets v. Miller,

237 W.Va. 473, 780 S.E.2d 1 (2016) ...................... 29

Constitution and Statutes

U.S. Const. amend. XIV ............................ 2, 21, 22, 26

28 U.S.C. § 1254 .......................................................... 1

viii

28 U.S.C. § 2101(c) ...................................................... 1

29 U.S.C. § 185 ............................................................ 5

29 U.S.C. § 185(a) ........................................ 1, 2, 5, 6, 7

W. Va. Const. Art. 3-11 ............................................. 22

W.Va. Code § 17C-7-3 .......................................... 35, 36

W.Va. Code § 55-7-9 ....................... 2, 22, 24-32, 34, 35

W.Va. Code § 61-2-9a .................................................. 5

W.Va. Code § 61-2-9A .............................. 23, 24, 28, 29

W.Va. Code § 61-2-13 .............................. 22, 23, 24, 33

W.Va. Code § 61-2-13(a) .............................................. 5

Rules

Fed.R.Civ.P. 12(b) ................................ 6, 12, 17, 19, 20

Sup. Ct. R. 13(1) .......................................................... 1

Other Authorities

13D Wright & Miller § 3566...................................... 11

1

OPINIONS BELOW

This matter was originally filed in the Circuit

Court of Berkeley County West Virginia, on February

19, 2021. See Complaint, JA14-19. Upon receipt of

the Complaint, Respondent filed a Notice of Removal

to remove the case to the U.S. District Court for the

Norther District of West Virginia, alleging federal

question jurisdiction and preemption based on

section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185(a). See Notice of Removal,

JA6-13. Defendant filed a timely objection to such

removal. See Plaintiff’s Motion in Objection to

Removal and Memorandum (JA212-213). Thereafter,

Respondent filed a motion to dismiss, which was

granted by the District Court on January 20, 2022

(JA9-23). On February 8, 2022, Petitioner filed his

Notice of Appeal to the 4th Circuit. After full briefing

of the same, the United States 4th Circuit Court of

Appeal issued an unpublished opinion on November

10, 2022 affirming the decision of the District Court.

(App. 1-8). Petitioner now timely files his Petition for

Certiorari before the United States Supreme Court

within the ninety-day timeframe provided for under

United States Supreme Court Rule 13(1) and 28

U.S.C. § 2101(c).

BASIS OF JURISDICTION

The date of the Opinion sought to be reviewed

is November 10, 2022. (App. 1-8).

Jurisdiction over this matter is proper under

28 U.S.C. § 1254 because it seeks review of a final

judgment from a United States Court of Appeals, to

2

wit, The United States Court of Appeals for the

Fourth Circuit.

STATUTORY OR CONSTITUTIONAL

PROVISIONS AT ISSUE

1. United States Constitution, 14th Amendment: No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

2. Labor Management Relations Act, 29 U.S.C.

§ 185(a): Suits for violation of contracts between

an employer and a labor organization

representing employees in an industry affecting

commerce as defined in this chapter, or between

any such labor organizations, may be brought in

any district court of the United States having

jurisdiction of the parties, without respect to the

amount in controversy or without regard to the

citizenship of the parties.

3. W.Va. Code § 55-7-9: Any person injured by the

violation of any statute may recover from the

offender such damages as he may sustain by

reason of the violation, although a penalty or

forfeiture for such violation be thereby imposed,

unless the same be expressly mentioned to be in

lieu of such damages.

3

STATEMENT OF THE CASE

Petitioner, Todd Bowers, claims in this matter

revolve around a series of tortious, anti-competitive,

and criminal acts taken by Defendant, the

International Brotherhood of Boilermakers, Iron Ship

Builders, Blacksmiths, Forgers, and Helpers, AFLCIO (“IBB”), to damage Plaintiff’s business following

Plaintiff’s 2017 withdrawal from a union agreement

known as the Ohio Valley Agreement (“OVA”).

Petitioner was a longtime union member of

IBB through its Local Lodge 193 (now merged with

IBB affiliate Local Lodge 45 to become Local 45/193),

based in Baltimore Maryland, and, upon founding

Elite Mechanical, entered into an agreement wherein

IBB agreed to provide him certified boilermakers

upon request on an as needed basis to engage in

constructing, repairing or otherwise working on

boilermakers at the various third party power plants

and other facilities which contracted with Plaintiff

for welding work. Plaintiff’s Complaint, ¶ 3 (JA1415). Plaintiff in turn agreed to make payments into

Defendant IBB’s pension and retirement programs

under the terms mandating in the Ohio Valley

Articles of Agreement (“The Ohio Agreement” or “The

Agreement”). Ibid.

Gradually, Petitioner’s welding business began

to expand to include a greater variety of general

welding work and less boilermaker work. Id. at ¶ 4

(JA15). Nevertheless, Petitioner continued utilizing

IBB boilermakers for his business until late 2017,

when he exited the Agreement. Id. at ¶ 5 (JA15).

4

Trouble between Petitioner and Respondent

began when Local 45/193 discovered that Petitioner

had hired a former boilermaker to work at his

welding company. Respondent IBB was extremely

upset that Petitioner had hired an individual who

had been expelled from the union. Id. at ¶ 6 (JA15).

These hostilities were significantly exacerbated when

Petitioner pulled out of the Agreement in December

of 2017 and no longer participated in any union

activities.

Ibid. Respondent’s hostility increased

further as Petitioner’s business began to compete

more and more often with Respondent’s union

members for non-boilermaker welding work, which

made up a significant portion of the work performed

by IBB union members due to the paucity of

available boilermaker work in the region. Id. at ¶ 7

(JA15). On multiple occasions, meetings were held at

IBB Local 45/193 wherein a major topic of discussion

was what Respondent IBB was going to do about

Plaintiff using non-union labor for his general

welding business Id. at ¶ 8 (JA16). 1

Thereafter, Petitioner asserts that Respondent

engaged in multiple activities designed to harass,

intimidate, and unlawfully extract funds for the

explicit purpose of putting Plaintiff out of business.

Id. at ¶ 9 (JA16). These acts included (a) procuring

the prosecution of knowingly meritless lawsuits

through IBB’s pension funds and trusts subsidiaries,

on knowingly false allegations in an inconvenient

1 It is uncontested in this matter that the OVA applied only to

boilermaker work – not to general welding work – and that

Petitioner was under no legal obligation to employ only IBB

members for his general welding business.

5

forum 1,000 miles away from all relevant parties;

(b) demanding compensation and threatening further

legal action for work engaged in post-2017 to which

Respondent knew it had no right; (c) threatening and

harassing Plaintiff’s employees in an attempt to

coerce them into leaving Petitioner’s employ; and

(d) falsely reporting Petitioner for violations to

relevant oversight organizations. Ibid.

In response, Petitioner filed a Complaint in the

Circuit Court of Berkeley County West Virginia, the

county in which Petitioner and his business are

located, on February 19, 2021. See Complaint, JA1419. That Complaint asserted causes of action of

Tortious Interference of Business, Abuse of Process,

Intentional Infliction of Emotional Distress, and

statutory violations of West Virginia’s criminal

extortion and harassment statutes, West Virginia

Code § 61-2-13(a) and West Virginia Code § 61-2-9a,

respectively. Ibid.

Upon receipt of the Complaint, Respondent

removed the case to the U.S. District Court for the

Norther District of West Virginia, alleging federal

question jurisdiction and preemption based on

section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185(a). See Notice of Removal,

JA6-13. Defendant filed a timely objection to such

removal. See Plaintiff’s Motion in Objection to

Removal and Memorandum, JA212-213. Thereafter,

Respondent filed a motion to dismiss, again arguing

preemption under 29 U.S.C. § 185 for Petitioner’s

claims under Counts 1-3 and further arguing that

criminal statutes under which Petitioner’s Counts 4

and 5 were filed do not allow for a private cause of

6

action. Petitioner responded in opposition thereto on

both counts, and requested that discovery be had

before the Court made a ruling. See Plaintiff’s

Response in Opposition to Defendant’s Motion to

Dismiss, p. 4 (JA225).

On January 20, 2022, the District Court

granted Respondent’s Motion to Dismiss, finding that

West Virginia’s criminal statutes under which

Petitioner brought counts four and five did not allow

for a private cause of action, and further finding that

all Plaintiff’s claims were preempted under 29 U.S.C.

§ 185(a). See Order of Dismissal, App. 9-23. On

February 8, 2022, Petitioner filed his Notice of

Appeal to the 4th Circuit (JA292).

After full briefing of the same, the United

States 4th Circuit Court of Appeal issued an

unpublished opinion on November 10, 2022 affirming

the decision of the District Court (App. 1-8). This

Petition for Certiorari follows:

REASONS FOR GRANTING THE PETITION

I.

STANDARD OF REVIEW

Questions of law are subject to de novo review

on appeal. See Diaz de Gomez v. Wilkinson, 987 F.3d

359, 363 (4th Cir. 2021). All arguments below relate

purely to questions of law and, as such, de novo

review is the appropriate standard for adjudicating

each of Appellant’s Assignments of Error outlined

below.

In evaluating the sufficiently of a complaint on

a Rule 12(b)(6) motion to dismiss, a valid claim for

relief “requires only a ‘short and plain statement of

7

the claim showing that the pleader is entitled to

relief,’ in order to ‘give the defendant fair notice of

what the… claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). A Plaintiff must allege facts sufficient to

state all the elements of his or her claim. Bass v. E.I

Dupont de Nemours & Co., 324 F.3d 761, 765 (4th

Cir. 2003).

II.

THE 4TH CIRCUIT LACKED JURISDICTION

BECAUSE APPELLANT’S CLAIMS AS SET

FORTH IN THE COMPLAINT WERE BASED

EXCLUSIVELY ON STATE LAW AND ARE

NOT SUBSTANTIALLY DEPENDENT ON

ANY

COLLECTIVE

BARGAINING

AGREEMENT.

The 4th Circuit further erred in affirming the

District Court’s assumption of jurisdiction in this

matter based on Appellee’s assertion of federal

question authority under 29 U.S.C. § 185(a).

In its original Suggestion in Support of

Removal, Respondent argued that 29 U.S.C. § 185(a)

of the LMRA conferred jurisdiction upon the District

Court, even though Plaintiff raised no causes of

action related to the LMRA, because Petitioner’s

state law claims “are substantially dependent on

analysis of the collective bargaining agreement and

thus are completely preempted by the LMRA,” citing

to Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220

(1985); and further citing to Foy v. Giant Food, Inc.,

298 F.3d 284, 288 (4th Cir. 2002).

8

Petitioner, in response, filed an Objection to

Removal (JA212-213), wherein he argued that none

of his claims were “substantially dependent” upon an

analysis of a collective bargaining agreement because

none of his claims requires interpretation of that

agreement. See Lingle v. Norge Div. of Magic Chef,

486 U.S. 399, 413 (1988) (emphasis added);

Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107

S.Ct. 2425, 96 L.Ed.2d 318 (1987).

Petitioner’s Complaint alleges four categories

of activity which it claims gives rise to the causes of

actions alleged. At paragraph 9, its notes the

following acts of Defendant which it claims were

designed to harass, intimidate, and put him out of

business:

A. Filing meritless lawsuits, through IBB’s

pension funds and trusts subsidiaries, on

knowingly false allegations and in an

inconvenient forum 1,000 miles away from

all relevant parties and witnesses when a

clearly more convenient forum existed;

B. Demanding compensation and threatening

further legal action for work engaged in by

Plaintiff post-2017;

C. Threatening and harassing Plaintiff’s

employees in an attempt to coerce them

into leaving Plaintiff’s employ;

D. Falsely reporting Plaintiff for violations to

relevant oversight organizations.

See Complaint at ¶ 9 (JA16).

9

Only one of these actions, to wit, those

described in part (a), relate to anything that might be

considered as arising out of the Ohio Valley

Agreement (“OVA”) or dependent upon an

interpretation of the OVA provisions cited by

Defendant. However, even part (a) does not state or

imply any dispute as to the meaning of the provisions

of the OVA at articles 5 and 6. Rather, subparagraph

(a) alleges that Defendant “knowingly” made “false

allegations” in a “meritless lawsuit”. As such, the

allegation is not that Defendant made a good faith,

though erroneous, effort to recover damages for

actual perceived violations of the OVA, but rather

that it knowingly engaged in a bad faith attempt to

extract money from Plaintiff when it knew that its

claimed violations had no basis in fact.

Respondent claimed, in its Suggestion in

Support of Removal (JA9), at paragraph 7, that

Petitioner’s allegations of IBB’s intent to put him out

of business related to his hiring practices while he

was still a member of the Agreement, and thereby

were required to be submitted to arbitration.

However, although there are certain facts that are

alleged to have taken place in 2017, Petitioner at no

point alleged in his Complaint that the tortious acts

taken against him and his business occurred in 2017.

In fact, all of the events alleged in paragraph 9 of the

Complaint took place after his dissociation in

December 2017. Nor can Petitioner’s claims be fairly

said to genuinely relate to his hiring practices for

multiple reasons. First – there is no dispute between

the parties that Petitioner was permitted to hire nonboilermakers for non-boilermaker activities like

general welding. Second, these arguments amount to

10

an attempt by Respondent to reconfigure Petitioner’s

claims, as Petitioner’s Complaint does not claim

merely that he made hires which Defendant believed

violated the Agreement, but, rather, that Respondent

knew Petitioner was not violating the OVA but chose

to move against him anyway because he represented

competition in an unrelated sector for which

Petitioner had never entered into any agreement

with IBB (i.e. general, non-boilermaker welding

work). See Complaint ¶ 4-6 (JA15).

In fact, the Complaint specifically alleges that

Defendant did these things after Petitioner had

withdrawn from the OVA in 2017. Id. at ¶ 6 (JA15).

It further asserts that Respondent’s actions were

motivated by Petitioner’s hiring of an ex-boilermaker

to engage in non-boilermaker welding work - for

which Appellee does not claim that Appellant

maintained a contractual agreement with them - and

subsequently ceasing to hire boilermakers for such

general welding work (for which he, again, had no

contractual obligation). Nowhere in Respondent’s

district court memoranda/suggestions do they claim

that general, non-boilermaker welding work is

potentially subject to the clauses identified as the

basis for their preemption.

Respondent further, in its Reply Brief to the

district court on Notice of Removal, introduced

numerous new facts which were not contained in

Petitioner’s Complaint or any other pleading

(Respondent never provided an Answer) upon which

they wished the Court to uphold Removal. See

Suggestions In Opposition to Plaintiff’s Misnamed

Motion to Remand (JA250-253), pp. 2-5. This is

11

improper. “The presence or absence of federal

question jurisdiction is governed by the ‘well-pleaded

complaint rule,’ which provides that federal

jurisdiction exists only when 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) (citing Gully v.

First National Bank, 299 U.S. 109, 112-113 (1936)).

(emphasis added). “The rule makes the plaintiff the

master of the claim; he or she may avoid federal

jurisdiction by exclusive reliance on state law.” Ibid.

When determining whether a claim arises

under federal law, a court will “examine the ‘well

pleaded’ allegations of the complaint and ignore

potential defenses: ‘[A] suit arises under the

Constitution and laws of the United States only when

the plaintiff’s statement of his own cause of action

shows that it is based upon those laws or that

Constitution.’” Beneficial Nat’l Bank v. Anderson, 539

U.S. 1, 6 (2003) (jurisdiction upheld) (quoting

Louisville & Nashville R. Co. v. Mottley, 211 U.S.

149, 152 (1908) (jurisdiction lacking)). Jurisdiction

will not be supported by a federal question in a

counterclaim (even if the counterclaim is

compulsory). Holmes Group, Inc. v. Vornado Air

Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (“[A]

counterclaim—which appears as part of the

defendant’s answer, not as part of the plaintiff’s

complaint—cannot serve as the basis for ‘arising

under’ jurisdiction.”). Additionally, jurisdiction will

not even be supported by a federal question raised by

“allegations to support [the plaintiff’s] own case that

are not required by pleading rules.” 13D Wright &

Miller § 3566, p. 272 (discussing superfluous

12

allegations with example of the different allegations

necessary in an action to clear a cloud on title versus

an action to quiet title). See also Rivet v. Regions

Bank of La., 522 U.S. 470, 475 (1998)) (“The wellpleaded-complaint rule mandates that in assessing

subject-matter jurisdiction, a federal court must

disregard allegations that a well-pleaded complaint

would not include—e.g., allegations about anticipated

defenses.”).

The District Court made no ruling on

Appellant’s Response in Opposition to Removal /

Motion to Remand, and thereby provided no

additional basis for its assumption of jurisdiction –

which it plainly exercised by virtue of granting

Appellee’s Motion to Dismiss - beyond that argued by

Respondent. The district court addressed the use of

the OVA in adjudicating the motion to dismiss, citing

to Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180

(4th Cir. 2009), and Blankenship v. Manchin, 471

F.3d 523, 526 n.1 (4th Cir. 2006)) for the proposition

that it is permitted to incorporate documents

“attached to the motion to dismiss,” which are

“integral to the Complaint and authentic.” However,

the holding articulated in Phillips and Blankenship

applied to 12(b)(6) motions only, and not to questions

of jurisdiction upon Notice of Removal, which must

apply the well-pleaded complaint rules. Thus, the

district court, even if able to use such documents in

adjudicating a motion to dismiss, would not be able to

assume subject matter jurisdiction on this basis and

should never have accepted jurisdiction to evaluate

the same in the first place.

13

The Fourth Circuit, in addressing this issue,

made a similar error as the district court by

combining the jurisdictional argument as to

Respondent’s Notice of Removal with Respondents

arguments for dismissal on Motion to Dismiss, and

failed to specifically address or analyze the

jurisdictional question outside of acknowledging that

Petitioner raised subject-matter jurisdiction as an

objection to removal. The 11/10/22 Decision of the 4th

Circuit completely ignores the applicability of the

well-pleaded complaint rule to the jurisdictional

questions inherent in Respondent’s claims on Notice

of Removal, and further ignores the necessity of

interpreting preemption narrowly. Instead, it treats

the jurisdictional issues associated with Petitioner’s

Notice of Removal and the arguments on Motion to

Dismiss as interchangeable, finding as follows:

Bowers’s

claims

are

“inextricably

intertwined with consideration of the

terms of” the OVA. His claim for tortious

interference of business depends on

whether he was violating the terms of the

OVA’s exclusive-referral provision and

whether

IBB

was

within

its rights under the OVA’s jobsite-access

provision to talk to and try to convince

his employees to leave. See J.A. 39

(exclusive-referral provision), 55 (jobsiteaccess provision). Resolution of this

claim requires interpretation and

application of these provisions. Bowers’s

abuse-of-process claim depends on

whether IBB’s funds filed meritless

lawsuits,

and

that

question

is

14

inextricably

intertwined

with

consideration of the OVA’s provisions

governing employer contributions. See

id. at 60–67. And Bowers’s claim for

intentional infliction of emotional

distress closely parallels the claim that

we held preempted in Foy: Such a claim

“requires an inquiry into whether [IBB]

was legally entitled to act as [it] did,”

which “can be determined only by

interpreting the collective bargaining

agreement.” 298 F.3d at 288 (quotation

marks omitted). Thus, the Labor

Management Relations Act preempted

Bowers’s claims and established federal

jurisdiction over his case.

This argument does not address the specific

jurisdictional issues asserted by Petitioner that any

claims regarding the specific provisions of the OVA

as discussed in the 4th Circuits above-quoted

reasoning would be inappropriate for consideration at

the Removal stage because they do not appear on the

face of Petitioner’s well-pleaded complaint. As such,

it was error for the 4th Circuit to affirm the district

Court’s exercise of jurisdiction upon Notice of

Removal.

15

III.

THE 4TH CIRCUIT FURTHER ERRED IN

FINDING THAT PETITIONER’S CLAIMS

WERE PREEMPTED BY THE LMRA

BECAUSE THE LMRA IS NOT INTEGRAL

TO PETITIONER’S CLAIMS AND HIS

COMPLAINT DOES NOT REQUIRE THE

COURT TO INTERPRET THE OVA.

Respondent argued, on Motion to Dismiss, that

Petitioner’s claims are preempted by Section 301 of

the Labor Management Relations Act (“LMRA”), and

that Petitioner failed to comply with LMRA

requirements, stating that “the tortious claims

asserted by the Company are all preempted because

the conduct alleged in the remaining causes of action

is inextricably intertwined with the Ohio Valley

Agreement.” See Suggestion in Support of Motion to

Dismiss (JA151), at 12. Both the District and Circuit

Courts erred by affirming these arguments because,

even notwithstanding the lack of jurisdiction,

discussed above, the facts of the case do not meet the

strict standard elucidated by Courts for substantial

dependence.

The LMRA preempts state actions when they

are (1) based upon a right conferred by a collective

bargaining agreement; or (2) otherwise “substantially

dependent [upon an] analysis” of such an agreement.

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 413,

n.10 (1988); Caterpillar, Inc. v. Williams, 482 U.S.

386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987);

Firestone v. Southern California Gas Co., 219 F.3d

1063, 1066 (9th Cir. 2000).) A claim is “substantially

dependent [upon an] analysis” of an agreement if it

“requires ... interpretation” of the agreement. (Lingle,

16

supra, at 413, 108 S.Ct. 1877, 100 L.Ed.2d 410;

Firestone, supra, at 1066.) Due in part to the

presumption against federal preemption (Fort

Halifax Packing Co. v. Coyne 482 U.S. 1, 21, 107

S.Ct. 2211 (1987)), the term “interpret” is “defined

narrowly” (Balcorta v. Twentieth Century – Fox Film

Corp., 208 F.3d 1102, 1108 (9th Cir.2000)). “[T]he

bare fact that a collective bargaining agreement will

be consulted in the course of state-law litigation

plainly does not require [preemption].’ Foy v. Giant

Food, Inc., 298 F.3d 284, 287 (4th Cir. 2002) (quoting

Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct.

2068, 129 L.Ed.2d 93 (1994)). As such, an action will

not be preempted just because the court, to resolve

the state claim, needs to “consider,” “refer to,” or

“apply” one or more terms of a collective bargaining

agreement. Soremekun v. Thrifty Payless, Inc., 509

F.3d 978, 991 (9th Cir. 2007); Burnside v. Kiewit Pac.

Corp., 491 F.3d 1053, 1060 (9th Cir. 2007).) Only if

the court must “construe” disputed terms of the

agreement will the claim be preempted. This rule of

preemption empowers the federal courts to develop

and apply a uniform body of federal common law

governing the interpretation of collective bargaining

agreements, which is thought to encourage collective

bargaining. (Lingle, supra, at 403–404, n.3, 407, 108

S.Ct. 1877; Livadas, supra, 512 U.S. at 122, 114 S.Ct.

2068; Allis – Chalmers Corp. v. Lueck, 471 U.S. 202,

210–211 (1985)).

Respondent, in its Motion to Dismiss and reply

brief, made a series of arguments designed to show

that Petitioner’s claims require an interpretation and

construction of various portions of the OVA which

was not included in or referenced by Petitioner’s

17

pleadings but which Respondents attached to their

Motion to Dismiss. Under Fed.R.Civ.P. 12(b), if

matters outside the pleadings are presented to the

court, a motion to dismiss for failure to state a claim

“shall be treated as one for summary judgment and

disposed of as provided in Rule 56.... [A]ll parties

shall be given reasonable opportunity to present all

material made pertinent to such motion by Rule 56.”

Fed.R.Civ.P. 12(b). When a party is aware that

material outside the pleadings is before the court,

that party is on notice that a Rule 12(b)(6) motion

may be treated as a motion for summary judgment.

See Gay v. Wall, 761 F.2d 175, 177 (4th Cir.1985).

The party opposing such a motion must be given the

right to file counter-affidavits or to pursue reasonable

discovery. See ibid. This was not done.

However, in order to have the OVA considered

on motion to dismiss, both Respondent and the

district court invoked the Phillips and Blankenship

cases, supra, for the holding that a court may

consider documents outside the Complaint on a

Motion to Dismiss without converting it to a motion

for summary judgment “so long as [those] documents

are integral to the complaint and authentic.”

However, it is erroneous to find that the OVA is

“integral” to Plaintiff’s Complaint, as the Complaint

itself references the OVA only in discussing the

timeline of events and does not depend on the OVA’s

existence for any claim asserted. In fact, Appellant’s

factual allegations could be completely rewritten

without ever even mentioning the OVA at all, as

Petitioner demonstrated to the 4th Circuit through a

potential revised Complaint which might have been

submitted had he been given the opportunity to do so

18

(and as was requested). See Petitioner’s 4th Circuit

Appeal Brief, p. 17. Petitioner noted in his perfected

4th Circuit Appeal that from his proposed

reformulated factual allegations – which omits any

mention of the OVA - can all of Appellant’s causes of

action asserted in its Complaint arise. Rather simply,

the OVA cannot possibly be “integral” to Plaintiff’s

claims if the OVA can be completely written out of

Plaintiff’s complaint without affecting the nature of

the Complaint or the causes of action which arise

therefrom.

Respondent, in its briefings, studiously

conflated any claim which, even obliquely, references

an act which might have some relevance to an OVA

provision as proving the OVA’s integrality by

utilizing the much vaguer “inextricably intertwined,”

language rather than the controlling “integral”

language. The reason for this is obvious – no one

could conceivably argue that the OVA is “integral” to

Appellant’s claims such that the Complaint is

substantially dependent on the OVA for the existence

of such claims. See Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 220 (1985). Instead, the Appellee uses

the highly vague and subjective “inextricably

intertwined” language from Allis-Chalmers despite

the fact that it has clearly been modified since its

introduction and is no longer the proper standard (see

IBEW, AFL-CIO v. Hechler, 481 U.S. 851, 859, 107

S.Ct. 2161 (1987) (basing its decision to preempt

state law on the need to interpret provisions of the

relevant labor contract rather than any claim that

the

acts

complained

of

are

“inextricably

intertwined”); See also Caterpillar, Inc. v.

19

Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d

318 (1987)).

What’s more, even if the OVA provisions

inserted by Respondent were fairly considered by the

district court in dismissing Petitioner’s claims on a

Rule 12(b)(6) motion, the claims within the

Complaint do not require the Court to construe any

portion of the OVA because the Complaint language

itself pre-supposes that Respondent was aware that

its claims for remuneration from Petitioner were

false and pursued them anyway in a bad faith

attempt to put Petitioner out of business. Paragraph

nine of the active Complaint, which enumerates the

tortious acts taken by Respondent, states

unequivocally that Respondent utilized its trust

affiliates to pursue “knowingly false allegations,” and

further knowingly “falsely reporting Plaintiff for

violations to relevant oversight organizations.” As

such, Respondent’s desire to hem the Court’s analysis

up in questions about whether Petitioner actually

owed the moneys claimed or whether he was still

technically a party to the OVA post-2017 is of no

import to the question of whether the Complaint

should survive a 12(b)(6) motion because the

Complaint language itself, which is presumed true

for 12(b)(6) purposes, already pre-supposes that

Respondent had actual knowledge of the frivolous

and false nature of their claims against Petitioner,

and chose to bring them anyway. The extent to which

Petitioner might be able to dispute this knowledge

through the discovery process or through submission

of affidavits which demonstrate some sort of ongoing

technical obligation on Petitioner’s behalf or failure

by Petitioner to comply with any provision of the

20

OVA must be reserved for summary judgment and

cannot be a basis for a dismissal under Rule 12(b)(6)

based on the bad faith intent alleged in Petitioner’s

Complaint.

Finally, it would further be inappropriate to

find Petitioner’s complaint preempted by the LMRA,

even notwithstanding the other issues articulated

above, because the Court would not, at any time,

need to interpret or construe the OVA, but would

simply be required to apply its unambiguous terms.

For instance, Respondent asserts in its Suggestion in

Support of Motion to Dismiss and Reply to the same

that the Court would need to construe Article 33 of

the OVA (which governs termination of the

agreement) to determine if Plaintiff was, in fact, still

bound by its terms and requirements. See

Respondent’s 4th Circuit Response Brief, p. 7. This is

in error, as the Court would not need to construe

anything, but would simply need to read the

language of Article 33 and apply its unambiguous

terms. This is, by definition, basic application, rather

than interpretation, pursuant to the Lingle, Livadas,

Burnside, and Payless line of cases, supra. At no

point has Defendant, in the proceedings below,

identified any ambiguous terms in Article 33 which

are ambiguous enough to require interpretation or

construction by the Court.

Nor, for its part, did the District Court identify

any clauses in the OVA which would require the

interpretation or construction necessary for a finding

of preemption, instead simply saying that “every

count in Plaintiff’s complaint is preempted by Section

301 because resolution of those claims is

21

substantially dependent on analyzing the terms of

the OVA.” See Order Granting Motion to Dismiss

(App. 9-23). The district court made no distinction in

its use of the word “analyzing” between the kind of

analysis which would amount to basic application

and the kind that would amount to construction or

interpretation of ambiguous terms in the OVA, and

identified no such term which would require

interpretation.

The 4th Circuit, to its credit, did at least

specifically reference certain portions of the OVA

which it claimed would need interpretation, but their

analysis falls short all the same because it identifies

questions for which it claims the OVA’s plain

language would need to be consulted, rather than

identifying any language or clauses from the OVA

which would require construction and interpretation.

As such, the 4th Circuit identifies only a basic need to

“consult” with the OVA rather than a need to

interpret it, which is manifestly insufficient to give

rise to LMRA preemption.

IV.

THE 4TH CIRCUIT ERRED IN FINDING

THAT NO PRIVATE CAUSE OF ACTION

EXISTS

UNDER

WEST

VIRGINIA’S

CRIMINAL STATUTES, AND, IN SO DOING,

VIOLATED APPELLANTS DUE PROCESS

RIGHTS UNDER THE 14TH AMENDMENT

This issue is subject to de novo review per Diaz

de Gomez v. Wilkinson, 987 F.3d 359, 363 (4th Cir.

2021).

The 14th Amendment to the United States

Constitution provides that “no State shall deprive

22

any person of life, liberty, or property without due

process of law.” Similarly, the West Virginia

Constitution provides, at Article 3-11, that “No

person shall be deprived of life, liberty, or property,

without due process of law.” The U.S. Constitutions

Fifth Amendment contains an identical clause as

well.

The U.S. Supreme Court has held that a

property right exists wherever a benefit or

entitlement is conferred either by law, policy, or

contractual agreement. In Board of Regents v. Roth,

408 U.S. 564, 577 (1972), the Supreme Court held

that “property interests… are created and their

dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law – rules or understandings

that secure certain benefits and that support claims

of entitlement to those benefits.”

W.Va. Code § 55-7-9 states that “Any person

injured by the violation of any statute may recover

from the offender such damage as he may sustain by

reason of the violation, although a penalty or

forfeiture of such violation be thereby imposed,

unless the same be expressly mentioned to be in lieu

of damages.” (emphasis added).

W.Va. Code § 61-2-13 reads:

If any person threaten injury to the

character, person or property of another

person, or to the character, person or

property of his wife or child, or to accuse

him or them of any offense, and thereby

extort money, pecuniary benefit, or any

23

bond, note or other evidence of debt, he

shall be guilty of a felony, and, upon

conviction, shall be confined in the

penitentiary not less than one nor more

than five years. And if any person make

such threat of injury or accusation of an

offense as herein set forth, but fail

thereby to extort money, pecuniary

benefit, or any bond, note or other

evidence of debt, he shall be guilty of a

misdemeanor, and, upon conviction,

shall be confined in jail not less than two

nor more than twelve months and fined

not less than $50 nor more than $500.

W.Va. Code § 61-2-9A reads, in relevant part:

(a) Any person who engages in a course

of conduct directed at another person

with the intent to cause the other person

to fear for his or her personal safety, the

safety of others, or suffer substantial

emotional distress, or causes a third

person to so act, is guilty of a

misdemeanor and, upon conviction

thereof, shall be fined not more than

$1,000, confined in jail for not more than

six months, or both fined and confined.

(b) Any person who harasses or

repeatedly makes credible threats

against another is guilty of a

misdemeanor and, upon conviction

thereof, shall be confined in jail for not

more than six months, or fined not more

than $1,000, or both fined and confined.

24

As the language shows, neither West

Virginia’s extortion nor harassment statutes make

any prohibition as to the civil recovery of damages,

nor do they specify in any way that any penalties

imposed there from are meant to be in lieu of other

damages. As such, as a matter of black letter state

law, Petitioner maintains a statutory property

interest in recovering damages under § 55-7-9 for any

injuries he suffers as a result of any violations of

§ 61-2-13 and § 61-2-9A.

The District Court’s Order of dismissal ran

afoul of the express West Virginia statutory law cited

above, as well as the case of Hurley v. Allied Chem

Corp., 164 W.Va. 268, 278, 262 S.E.2d 757, 763

(1980), wherein the West Virginia Supreme Court set

forth guidance on when a cause of action can be said

to implicitly arise from a statute and the factors that

a Court should consider in making that

determination. Specifically, the Hurley court, at

Syllabus Pt. 1 writes as follows:

The following is the appropriate test to

determine when a State statute gives rise

by implication to a private cause of

action: (1) the plaintiff must be a

member of the class for whose benefit the

statute was enacted; (2) consideration

must be given to legislative intent,

express or implied, to determine whether

a private cause of action was intended;

(3) an analysis must be made of whether

a private cause of action is consistent

with the underlying purposes of the

legislative scheme; and (4) such private

25

cause of action must not intrude into an

area delegated exclusively to the federal

government.

The Hurley Court made clear that these factors are

based on the prior precedent handed down by the

U.S. Supreme Court in Cort v. Ash, 422 U.S. 66, 78,

95 S.Ct. 2080 2089, 45 L.Ed.2d 26, 36-37 (1975). See

Hurley, supra, 262 S.E.2d at 272 (quoting Cort,

supra, 422 U.S. at 78).

Although the Hurley decision strangely omits

any mention of § 55-7-9 in finding an implied cause of

action, Petitioner submits that this omission must

have been based on the fact that the common law

Hurley factors themselves – taken largely from a

prior decision by this Supreme Court in Cort v. Ash were enough to confer jurisdiction without need for

reliance on § 55-7-9. Nevertheless, § 55-7-9 remains

good and valid law in West Virginia, and has never

been abrogated, limited, or modified in any way. It is

the law of the land upon which Petitioner had an

unquestionable property right to a civil cause of

action for violation of any statute which does not

expressly limit civil liability as to the same.

The first Conclusion of Law reached by the

District Court in its Order Granting Defendant’s

Motion to Dismiss was that West Virginia’s Criminal

Statutes do not allow for a private cause of action. In

support of this conclusion, the Court relied almost

exclusively on unpublished federal district court

decisions of no dispositive or controlling precedential

26

value regarding West Virginia law. 2 See Order

Granting Defendant’s Motion to Dismiss (JA14-15),

p. 5.

The 4th Circuit, for its part, also completely

ignored W.Va. Code § 55-7-9 in reaching its decision,

instead looking exclusively to the Hurley case for its

authority to affirm the district court’s findings. First

and foremost, it is clear and obvious error, and a

plain violation of Petitioner’s due process rights

under the 5th and 14th Amendments, to deprive him

of his statutory property interests under § 55-7-9.

However, an analysis of the question through the

prism of the Hurley factors also demonstrates a clear

right to civil relief on Petitioner’s behalf, as follows:

Factor 1

First, it is plain that Petitioner would fall

under the category of persons designed to be

protected by the statutes, as both statutes are plainly

intended to protect any individual who is the target

of the prohibited conduct, and Plaintiff’s complaint

alleges that he has been the victim of both extortion

and harassment.

For this reason, factor 1 falls in favor of a

private cause of action as to both extortion and

harassment.

Respondent, in its Reply on Motion to Dismiss

(JA269-280), attempts to address and rebut

Petitioner’s analysis of the Hurley factors as

2 Specifically, the Court referenced Horton v. Vinson, No. 1:14-

cv-192, 2015 WL 4774276, at*22 (N.D. W. Va. Aug. 12, 2015)

and Cunningham Energy, LLC v. Outman, No. 2:13-cv-20748,

2013 WL 5274361, at *5 (S.D. W. Va. Sept. 18, 2013).

27

submitted in Appellant’s prior response on Motion to

Dismiss. Tellingly, Respondent left Factor 1

completely unaddressed. This is not surprising, as it

is impossible to persuasively argue that Appellant

would not be within the class of persons designed to

be protected by criminal statutes in West Virginia.

Factor 2

The extortion statute contains no language

which would indicate either an intent to create a

private cause of action or an intent to deny one. As

such, factor 2 is neutral as to the extortion statute.

Appellee attempts to rebut this assertion by again

citing to the unpublished district court opinion of

Cunningham, infra, for the proposition that a private

right action does lie as to the extortion statute

“because there is no clear legislative intent to create

a private right of action,” within said extortion

statute. 2013 WL 5274361, at *5. Plaintiff reiterates

that an unpublished federal district court opinion

cannot form a precedentially controlling basis for

authority as to any matter of West Virginia state law,

particularly when a long-standing state statute

explicitly states precisely the opposite, as W.Va. Code

§ 55-7-9 reads, in part, “Any person injured by the

violation of any statute may recover from the offender

such damage as he may sustain by reason of the

violation… unless the same be expressly mentioned

to be in lieu of damages.” As such, there is no need

within the legislative schema to explicitly create a

private right of action in every single statute

because there is a separate statute that creates

a right of action for violations of all statutes,

except where expressly stated otherwise. How the

28

Cunningham Court came to the opposite conclusion

in the face of such explicit statutory authority is

beyond Petitioner’s comprehension, but it is certainly

not incumbent upon this honorable Court to make

the same blunder. Petitioner addresses the erroneous

basis of Cunningham’s rationale for finding no

private right of action or intent to create the same

more fully in the argument on the Sartin case, infra.

Additionally, the harassment statute contains

language, which, while not expressly indicating the

need for a private cause of action, clearly intends to

expand the scope of enforcement beyond the language

of the statute itself. At subsection (m), the statute

authorizes various executive committees and

governmental

organizations

to

“promulgate

legislative rules and emergency rules… establishing

appropriate standards for the enforcement of this

section…” W.Va. Code § 61-2-9A(m). Appellee,

responding to this argument in its Reply brief, first

criticized Appellant for failing to cite to any authority

in support of this proposition (ignoring the fact that

the language of a state statute is itself legal

authority), and then, ironically enough, provides its

own argument in rebuttal which is itself unsupported

by any statutory or case authority, arguing that

Appellant’s interpretation is “illogical” because “Such

a reading would make any statute that included

rulemaking authority imply a right of action.” See

Appellee’s Reply Brief, p. 3. Once again, Appellant

reiterates in response that is § 55-7-9 which creates

the private right of action for “any person injured by

the violation of any statute,” and that the language of

61-2-9A(m) does nothing at all to foreclose the

remedies created through 55-7-9, and, in fact,

29

contains language at section (m) that suggests a

broad and inclusive application of the same. As such,

factor 2 weighs slightly in favor of a private cause of

action as to harassment.

Factor 3

Factor 3 also inveighs in favor of a private

cause of action for both the extortion and harassment

statute. The underlying purpose of both statutory

schemes is, very plainly, to prohibit and deter the

conduct proscribed against therein and deter any

commission of the same. A private cause of action

authorizing a Plaintiff to seek compensation for

deprivations which have resulted from the

commission of any such act would be entirely

consistent with this purpose.

Respondent argued that Factor 3 (misleadingly

referred to as “element 3” in Appellee’s Suggestion in

Support of Motion to Dismiss (JA148) at p. 9)

inveighs against finding a private right of action

because, per the language of Teets v. Miller, 237

W.Va. 473, 480, 780 S.E.2d 1, 8 (2016), “West

Virginia courts will glean legislative intent from the

plain language of a statute.” Of Course, had

Respondent continued with this analysis to its logical

conclusion, he might have applied this same Teets

rule of statutory construction to § 55-7-9, and then

read it in pari materia with the extortion and

harassment statutes. See State ex rel. Miller v. Locke,

253 S.E.2d 540 (1979) (“It is well established in West

Virginia that statutes which are not inconsistent

with one another, and which relate to the same

subject matter, are in pari materia. Statutes in pari

materia should be read and construed together, the

30

primary purpose being to ascertain the intention of

the Legislature.”). See also State ex rel. Slatton v.

Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963); State ex

rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d

886 (1958); State v. Hoult, 113 W.Va. 587, 169 S.E.

241 (1933). Both the harassment and extortion

statutes, when read in pari materia with § 55-7-9

(which is required when evaluating whether a

private cause of action arises) suggest a legislative

intent to allow for private causes of action because

neither statute includes any language which would

suggest that the criminal penalties described therein

are “expressly mentioned to be in lieu of damages.”

This is what the plain language of § 55-7-9 requires,

and no such express exemption can be found in either

statute.

Factor 4

Obviously, neither extortion nor harassment

are areas of law which have been delegated

exclusively to the federal government, as each are

dealt with at the state level in every state

jurisdiction across the nation.

The 4th Circuit’s application of the Hurley

factors to the case bat bar is perfunctory at best.

After quoting the four factors, the 4th Circuit spends

one paragraph of two sentences addressing their

application to the facts of the case at bar, saying only

that:

Here, §§ 61-2-13(a) and 61-2-9a are

criminal statutes “enacted for the

protection of the general public;” they do

not “expressly identif[y]” a class they

31

intend to benefit. Id. at 761 (quotation

marks omitted). Moreover, the plain

language of these statutes—and other

statutes in the same chapter—provides

only for criminal penalties; neither the

statutory text nor scheme suggests any

intent to create a private cause of action.

So, these criminal statutes do not create

private causes of action. Counts Four

and Five failed to state a claim.

The 4th Circuit’s reasoning here is wholly

erroneous, and is so perfunctory and non-responsive

as to border on a wholesale disregard of Petitioner’s

legal argument. They’re suggestion that the criminal

statutes at issue inveigh against finding a private

cause of action because they were enacted for the

benefit of the general public and do not expressly

identify a class they intend to benefit amounts to a

misinterpretation of factor one. Although it is true

that the Hurley Court cited the Supreme Court in

Cort v. Ash, which compared the specific class of

beneficiaries created by an anti-discrimination law to

the general public benefiting through a criminal

statute (such that a specific group reference more

strongly creates a cause of action than does a

generalized protection of the public), this does not

mean that criminal statutes inherently do not give

rise to a private cause of action under Hurley. It

remains true that Petitioner is within the class of

beneficiaries intended for protection by the criminal

extortion statutes because it is meant to protect any

citizen who is being extorted or harassed by imposing

criminal penalties to said extortion. Thus, at absolute

worst, this statute inveighs mildly in favor of a

32

private cause of action because it must still be read

in pari materia with § 55-7-9, which explicitly creates

a private cause of action for every statute excepting

those who specify otherwise. Similarly, the 4th

Circuit’s further argument that the statutory

language of the extortion and harassment statutes

fails to suggest any intent to create a private cause of

action is, of course, belied by the very language of

W.Va. Code § 55-7-9 itself, which expressly and

unequivocally asserts that a private cause of action

exists as to violation of “any” statute, save those

which expressly prohibit the same. It is telling that

the 4th Circuit, like so many other courts who have

attempted to deny a private cause of action arising

out of statute, made no effort whatsoever to address

W.Va. § 55-7-9.

Petitioner’s review of West Virginia precedent

reveals one case wherein a civil cause of action for

extortion was contemplated by the West Virginia

Supreme Court. In Machinery Hauling, Inc. v. Steel

of West Virginia, 384 S.E.2d 139 (1989), the Supreme

Court adjudicated a certified question “concerning

the effect of threats made by one party for the

purpose of inducing contract concessions from the

other.” Id. at 140. There, Plaintiff sought damages for

“extortionate demands,” Ibid. The matter was then

submitted to the Supreme Court on certified

question, wherein, just as in the instant matter,

Plaintiff argued that it had a right to proceed under a

civil cause of action for extortion and the defendant

arguing that it did not. Said the Court, “The Plaintiff

argues that there is a cause of action under our

criminal extortion statute… the defendants, on the

other hand, argue that there is no general authority

33

that recognizes the right to recover civil damages for

extortion,” Id. at 140-41. Although the Court

ultimately found that a cause of action could not

arise under the circumstances of the case, it did so

only because Plaintiff’s claims failed to meet the

elements of extortion under § 61-2-13, and refused to

find that no civil cause of action could arise from said

Statute. Said the Court:

[S]ince there was no threat in the legal

sense, the facts would not appear to come

within the statutory language of a

threatened injury to the “character,

person or property of another person.”

W.Va. Code, 61-2-13. In Black’s Law

Dictionary 1327 (5th ed.1979), a “threat”

is defined as “[a] declaration of an

intention to injure another or his

property by some unlawful act.” Iden v.

Adrian Buckhannon Bank, 661 F. Supp.

234 (N.D.W.Va. 1987), modified, 841

F.2d 1122 (4th Cir. 1988); Schott v.

People,

174

Colo.

15, 482

P.2d

101 (1971); State v. Schweppe, 306

Minn. 395, 237 N.W.2d 609 (1975). As

we discuss in more detail later, the

plaintiff had no continuing contract with

Steel. As a consequence, Steel was free to

place its haulage business wherever it

chose. Its statement to the plaintiff did

not constitute an unlawful act.

Id. at 141.

As such, the West Virginia Supreme Court,

even when given the ideal opportunity, made no

34

finding whatsoever that plaintiffs were prohibited, as

a matter of law, from bringing a civil action based on

a violation of the extortion statute, despite the

Defendants specifically arguing that “there is no

general authority that recognizes the right to recover

civil damages for extortion.” Id. at 141.

Although all of these arguments regarding

West Virginia Code § 55-7-9 and the Hurley and Steel

cases were clearly asserted and articulated before the

District Court and the 4th Circuit (See Plaintiff’s

Response in Opposition to Defendant’s Motion to

Dismiss, pp. 4-8 (JA225-229), and Appellant’s 4th

Circuit Appeal Brief (4th Cir. Dkt. 21). Both Courts’

Orders ignores them entirely. Rather, the closest

anyone thus far has gotten to providing an

authoritative rebuttal to Appellant’s argument

regarding § 55-7-9 is when Respondent, in its Reply

Brief (and also briefly in its Suggestion in Support of

Motion to Dismiss), cited to Sartin ex rel. Sartin v.

Evans, 186 W.Va. 717, 720, 414 S.E.2d 874, 877

(1991). However, a reading of Sartin shows that it

does not inapposite to Appellant’s arguments.

Appellee, after citing to the same unpublished

district Court case referenced by the District Court –

Cunningham, supra –argues as follows:

Despite the fact that Cunningham is a

federal case applying West Virginia law,

the West Virginia Supreme Court of

Appeals also long ago held that the

statute cited only “provide[s] for a

rebuttable prima facie presumption of

negligence . . . .” Sartin ex rel. Sartin v.

Evans, 186 W. Va. 717, 720, 414 S.E.2d

35

874, 877 (1991). Then, the Court noted

that the violation must have proximately

caused the injury in order to be

actionable. Id. So, it is clear that this

statute only satisfies part of the common

law negligence test.

Defendant’s Reply in Support of Its Motion to

Dismiss, p. 2 (JA270).

However, even a cursory reading of Sartin

shows that it does not stand for the proposition

asserted by Respondent at all. Specifically, while

Sartin does hold that § 55-7-9 creates a presumption

of negligence for violation of a statute, at no point

does the Sartin case suggest that this is all that § 557-9 does. In Sartin, the Plaintiff initiated a civil

action relating to a car accident, contending that the

Defendant was negligent for passing Appellant on

the right, and further asserted that the combination

of W.Va. Code § 17C-7-3 (prohibiting drivers from

passing on the right), and W.Va. Code § 55-7-9

created a rebuttable presumption of negligence. Id. at

875.

The

Sartin

Court

agreed

with

Plaintiff/Appellant, and found that “Violation of a

statute is prima facie evidence of negligence. In order

to be actionable, such violation must be the

proximate cause of the plaintiff’s injury.’” Id. at Syl.

Pt. 2 (quoting Syl. Pt. 1, Anderson v. Moulder, 183

W.Va. 77, 394 S.E.2d 61 (1990)). Critically, however,

the Sartin decision does not in any way limit the

applicability of § 55-7-9 to negligence claims only.

Rather, the Sartin court discussed a presumption of

negligence for violation of the relevant statute

because the case itself was a negligence action. As

36

the Plaintiff did not raise violation of § 17C-7-3 as an

independent cause of action, but rather only asserted

a common law negligence tort, the Court was right to

discuss the matter in the context of negligence. As

such, Sartin, if anything, actually inveighs in favor of

Petitioner’s position.

CONCLUSION

Based on the above, Petitioner respectfully

requests that this Honorable Court grant Petitioner’s

Petition for Writ of Certiorari, reverse the 4th Circuit

on the arguments identified above, and remand the

matter back to the District Court for discovery and

trial.

Respectfully submitted,

CHRISTIAN J. RIDDELL

Counsel of Record

THE RIDDELL LAW GROUP

329 S. Queen Street

Martinsburg, WV 25401

(304) 267-3949

mail@theriddelllawgroup.com

Counsel for Petitioner