Councell v. Homer Laughlin China Co., Civil Action No. 5:11CV45.

CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia
Writing for the CourtFREDERICK P. STAMP
Citation823 F.Supp.2d 370
PartiesCarol L. COUNCELL and Charles E. Councell, Plaintiffs, v. The HOMER LAUGHLIN CHINA COMPANY, aka HLC, aka Homer Laughlin, aka Fiestaware, aka Homer Laughlin China, aka Newell Bridge and Railway Co., Defendant.
Docket NumberCivil Action No. 5:11CV45.
Decision Date11 October 2011

823 F.Supp.2d 370

Carol L. COUNCELL and Charles E. Councell, Plaintiffs,
v.
The HOMER LAUGHLIN CHINA COMPANY, aka HLC, aka Homer Laughlin, aka Fiestaware, aka Homer Laughlin China, aka Newell Bridge and Railway Co., Defendant.

Civil Action No. 5:11CV45.

United States District Court, N.D. West Virginia.

Oct. 11, 2011.


[823 F.Supp.2d 372]

Mark A. Kepple, Bailey & Wyant, PLLC, Wheeling, WV, for Plaintiffs.

Erin J. McLaughlin, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA, for Defendant.

[823 F.Supp.2d 373]

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO REMAND, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND DENYING AS MOOT DEFENDANT'S MOTION TO STRIKE
FREDERICK P. STAMP, JR., District Judge.
I. Procedural History

The husband and wife plaintiffs filed this civil action in the Circuit Court of Hancock County, West Virginia on March 3, 2011. The plaintiffs seek compensatory and punitive damages, and attorney's fees and costs from the defendant, Homer Laughlin China Company (hereinafter “HLC”), the wife plaintiff's former employer, as a result of Ms. Councell's termination.

The complaint alleges that the plaintiffs are citizens of Ohio and that HLC is incorporated in Delaware with its principle place of business in Newell, West Virginia. The complaint also avers that HLC discriminated against Mrs. Councell based upon her age, gender, and/or disability when it terminated her employment. Count II of the complaint alleges that, in addition to the other discriminatory reasons for her termination, adverse employment decisions were also premised upon recent claims that the plaintiffs had made to HLC's health insurance plan.

On March 21, 2011, the defendant removed the action to this Court on the basis of both federal question and diversity jurisdiction. The defendant argued that there was complete diversity on the face of the plaintiffs' complaint because the Councells were citizens of Ohio and HLC is domiciled in Delaware and West Virginia, and that the amount in controversy was more than $75,000.00. Additionally, HLC contended that Count II of the plaintiffs' complaint raised a claim that is completely preempted by the Employee Retirement Income Security Act (hereinafter “ERISA”), specifically § 510 of the Act, 29 U.S.C. § 1140.

The plaintiffs filed a motion to remand on May 9, 2011, arguing that neither diversity nor federal question jurisdiction exists in this case. They assert that HLC cannot remove this action based upon diversity jurisdiction because of the forum defendant rule, as its principal place of business is in the state of West Virginia. They also claim that there is no ERISA claim because they have not pled ERISA, nor is their claim of insurance discrimination preempted by ERISA.

The defendant responded by arguing that the plaintiffs have waived any forum defendant rule argument that may have been available to them because they failed to file a motion to remand within 30 days of removal, as is required by 28 U.S.C. § 1447(c). Additionally, the argument that the plaintiffs' insurance discrimination claim is preempted by ERISA § 510 was renewed in more detail. The plaintiffs replied to the response arguing that Count II of their complaint is not an ERISA claim, and that the forum defendant rule is a substantive subject matter jurisdictional issue and thus is not waived by filing to remand more than 30 days after removal. In any case, they argue, letters were written to HLC within the 30 days and reference to remanding the action was made in the plaintiffs' response to the defendant's motion to dismiss, thus the matter was preserved even if it is a procedural issue.

The defendant also filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss and Federal Rule of Civil Procedure 12(f) motion to strike to which the plaintiffs responded in opposition and with and alternative motion to amend the complaint. The defendant argues that each of the

[823 F.Supp.2d 374]

claims in the plaintiffs' complaint contains only legal conclusions and fails to assert sufficient facts to support those statements. HLC also advances that Count III, which alleges wrongful personnel file documentation, is not a viable cause of action under West Virginia or federal law, nor is Count VI, a count of spoliation, a viable claim in the context in which it is asserted here. The defendant does not, however appear to include Count VII of the complaint, an allegation of violation of the West Virginia Human Rights Act, in its motion to dismiss.

The plaintiffs, in response, alleged that they have met their burden to survive defendant's Rule 12(b)(6) motion because sufficient facts have been alleged to the best of their knowledge before discovery has taken place. Additionally, they argue that all causes of action in the complaint are cognizable under West Virginia law. Finally, the defendant filed a reply brief.

The motion to remand and motion to dismiss and to strike have now been fully briefed and are ripe for disposition. For the reasons stated below, this court denies the plaintiffs' motion to remand and grants in part and denies in part the defendant's motion to dismiss. The Court also grants the plaintiffs' motion to file an amended complaint, and accordingly denies the defendant's motion to strike as moot.

II. Facts 1

The wife plaintiff in this case, Carol Councell, was employed by HLC for approximately 15 years when she was terminated at the age of 58 on November 2, 2010. Throughout her employment, Ms. Councell was not sanctioned, disciplined or otherwise criticized for poor attendance. She also allegedly possessed the ability to and did perform her job in a satisfactory manner throughout most of her career. At some time prior to her termination, Ms. Councell and her husband, Charles Councell allegedly began to suffer from undisclosed health problems. Ms. Councell's ailments necessitated medical intervention and work interruption. Additionally, both plaintiffs began to make claims to HLC's health insurance plan to which they were both participants and to which Ms. Councell contributed $50.00 per month. Mr. Councell specifically made claims for knee, wrist, and ankle surgeries, kidney treatments, and post-traumatic stress disorder therapy.

The plaintiffs contend that, due to Ms. Councell's age, gender, and her alleged disability, as well as because the Councells were making claims to the company health insurance plan, HLC, through its managers and personnel, began to make false notations in Ms. Councell's file in order to “build the record” to terminate her. The Councells also argue that, despite this negative performance documentation in Ms. Councell's file, her productivity had not decreased. Finally, the plaintiffs argue that, in order to attempt to force Ms. Councell to resign from her position, HLC created a “culture of mean-spirited, age based, gender based, and disability based discrimination.” The plaintiffs argue that Ms. Councell was eventually terminated due to these discriminatory motivations.

III. Applicable Law
A. Motion to Remand

A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily

[823 F.Supp.2d 375]

two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75,000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a). The party seeking removal bears the burden of establishing federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Id.

B. Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to raise the defense of “failure to state a claim upon which relief can be granted” as a motion in response to a plaintiffs' complaint before filing a responsive pleading.

In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept the factual allegations contained in the complaint as true. Advanced Health–Care Servs., Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir.1990). Dismissal is appropriate only if “ ‘it appears to be a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proven in support of its claim.’ ” Id. at 143–44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969)); see also Rogers v. Jefferson–Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989).

A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted only in very limited circumstances, as the pleading requirements of Federal Rule of Civil Procedure 8(a)(2) only mandate “a short and plain statement of a claim showing that the pleader is entitled to relief.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Still, to survive a motion to dismiss, the complaint must demonstrate the grounds to entitlement to relief with “more than labels and conclusions ... factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

IV. Discussion
A. Motion to Remand

The defendant removed this action based upon both 28 U.S.C. § 1331 federal question and 28 U.S.C. § 1332 diversity jurisdiction. The Court will address each jurisdictional basis asserted in turn.

Federal jurisdiction based upon 28 U.S.C. § 1331 requires that a question “arising under the Constitutions, laws, or treaties of the United States” be present on the face of the plaintiff's well pleaded complaint. However, there is an exception to...

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34 practice notes
  • Campbell v. Hampton Roads Bankshares, Inc., Civil Action No. 2:12cv567–HCM–LRL.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • February 19, 2013
    ...v. Mylan Pharm., Inc., No. 1:08cv85, 2008 WL 3540462, at *5 (N.D.W.Va. August 13, 2008); see also Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 378 (N.D.W.Va.2011) (“Although the United States Court of Appeals for the Fourth Circuit has yet to rule on this question, ten circuit c......
  • Phillips Constr., LLC v. Daniels Law Firm, PLLC, Civil Action No. 2:14–cv–23809.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 19, 2015
    ...on the basis of diversity to instances where no defendant is a citizen of the forum state.' ” Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 377 (N.D.W.Va.2011) (Stamp, J.) (quoting Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir.2006) ). In Councell, Judge Stamp provi......
  • Almutairi v. Johns Hopkins Health Sys. Corp., Civil No. ELH-15-2864
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 8, 2016
    ..."forum defendant rule" constitutes a procedural or a jurisdictional challenge to removal. See Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 378 (N.D.W. Va. 2011) (recognizing that the Fourth Circuit "has yet to rule on this question . . ."). However, "[o]f the ten circuits that......
  • Branch Banking & Trust Co. v. Okay, 1:16cv555(JCC/JFA)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 23, 2016
    ...the majority of circuit courts in holding that the forum defendant rule is merely procedural." Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 378 (N.D.W. Va. 2011). 3. Plaintiff settled with Priscilla Okay before the notice of removal had been filed. The effect of the settlement......
  • Request a trial to view additional results
35 cases
  • Campbell v. Hampton Roads Bankshares, Inc., Civil Action No. 2:12cv567–HCM–LRL.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • February 19, 2013
    ...v. Mylan Pharm., Inc., No. 1:08cv85, 2008 WL 3540462, at *5 (N.D.W.Va. August 13, 2008); see also Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 378 (N.D.W.Va.2011) (“Although the United States Court of Appeals for the Fourth Circuit has yet to rule on this question, ten circuit c......
  • Phillips Constr., LLC v. Daniels Law Firm, PLLC, Civil Action No. 2:14–cv–23809.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 19, 2015
    ...on the basis of diversity to instances where no defendant is a citizen of the forum state.' ” Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 377 (N.D.W.Va.2011) (Stamp, J.) (quoting Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir.2006) ). In Councell, Judge Stamp provi......
  • Almutairi v. Johns Hopkins Health Sys. Corp., Civil No. ELH-15-2864
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 8, 2016
    ..."forum defendant rule" constitutes a procedural or a jurisdictional challenge to removal. See Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 378 (N.D.W. Va. 2011) (recognizing that the Fourth Circuit "has yet to rule on this question . . ."). However, "[o]f the ten circuits that......
  • Branch Banking & Trust Co. v. Okay, 1:16cv555(JCC/JFA)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 23, 2016
    ...the majority of circuit courts in holding that the forum defendant rule is merely procedural." Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 378 (N.D.W. Va. 2011). 3. Plaintiff settled with Priscilla Okay before the notice of removal had been filed. The effect of the settlement......
  • Request a trial to view additional results

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