Gleichauf v. Ginsberg, Civ. A. No. 3:94-0481.

• Decision Date: 01 August 1994
• Docket Number: Civ. A. No. 3:94-0481.
• Citation: 859 F. Supp. 229
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Judith A. GLEICHAUF, et al., Plaintiffs, v. Leon H. GINSBERG, Commissioner, et al., Defendants.

859 F. Supp. 229

Judith A. GLEICHAUF, et al., Plaintiffs, v. Leon H. GINSBERG, Commissioner, et al., Defendants.

Civ. A. No. 3:94-0481.

United States District Court, S.D. West Virginia, Huntington Division.

August 1, 1994.

J. Benjamin Dick, Charlottesville, VA, for plaintiffs.

Bryan R. Cokeley, Jan L. Fox, Steptoe & Johnson, Charleston, WV, for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are Plaintiffs' motions to remand and re-seal this action and Defendants' motion for more definite statement. Defendants have responded to the motions to remand and re-seal, and Plaintiffs have replied. Plaintiffs have not responded to the motion for a more definite statement.¹ These matters are now ripe for adjudication.²

On April 13, 1994 Plaintiffs' filed their complaint in the Circuit Court of Cabell County, West Virginia. The complaint was served upon the Defendants on May 16, 1994. The complaint is framed in motion form and is headed as follows: "PRAYER FOR EQUITABLE AND LEGAL RELIEF UNDER RULE 60 AND RULE 57 OF THE WEST VIRGINIA CRP AND BY INHERENT AND STATUTORY POWERS OF THIS COURT AND BY THE GRANT OF CONCURRENT JURISDICTION AS TO 42 U.S.C. § 1983." Attached to the "prayer for relief" is a document styled as a "draft complaint." The Court will treat the pleadings as a complaint. On June 16, 1994 Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiffs then moved to remand on June 28, 1994, asserting (1) because state courts have concurrent jurisdiction over § 1983 claims, the action is not removable for reasons of original jurisdiction, and (2) the Court should abstain from the proceeding.

I.

REMAND

A.

It is true West Virginia state courts exercise concurrent jurisdiction over § 1983 claims. As this Court recently noted:

"West Virginia, and indeed all other states, have permitted maintenance of § 1983 claims in state courts. Thus, the state courts clearly have concurrent jurisdiction over § 1983 claims. Howlett v. Rose, 496 U.S. 356, 378, n. 20, 110 S.Ct. 2430, 2444, n. 20, 110 L.Ed.2d 332, n. 20 (1990) ("Virtually every state has expressly or by implication opened its courts to § 1983 cases."); Harrah v. Leverette, 165 W.Va. 665, 682, 271 S.E.2d 322, 332 (1980) ("It is ... clear that 42 U.S.C. § 1983 actions may be pursued in our state courts."). See Syllabus Point 2, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d 895 (1981) ("An action based on 42 U.S.C. § 1983 can be maintained in our State courts to challenge prison conditions.")." Scott v. Greiner, 858 F.Supp. 607, 608 (S.D.W.Va.1994).

However, mere concurrent jurisdiction with the state courts is not enough to withstand removal on original jurisdiction grounds. Section 1441(a) of Title 28 U.S.C. allows for removal of cases where federal district courts have jurisdiction "except as otherwise expressly provided by Act of Congress."³ (emphasis added). No Act of Congress expressly provides that § 1983 causes of action should be treated as nonremovable. The great majority of courts addressing whether § 1983 claims are removable have concluded original jurisdiction precludes remand despite the concurrent jurisdiction of state courts. Dorsey v. Detroit, 858 F.2d 338, 341 (6th Cir.1988) ("Section 1983 actions are not included among the nonremovable actions listed in 28 U.S.C. § 1445, and no other statute provides, expressly or otherwise, that § 1983 actions are nonremovable."); Pace v. Hunt, 847 F.Supp. 508, 509-10 (S.D.Miss.1994) ("The removal statute would be eviscerated if actions such as those arising under § 1983 were remanded simply because such courts have concurrent jurisdiction."); Hummel v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 749 F.Supp. 1023, 1025 (D.Hawaii 1990) ("Claims under ... the civil rights statutes which are within this court's original jurisdiction ... are generally removable."); Aben v. Dallwig, 665 F.Supp. 523, 524 (E.D.Mich. 1987) ("Nothing in the civil rights statute expressly prohibits removal."); Spencer v. South Florida Water Management Dist., 657 F.Supp. 66, 67 (S.D.Fla.1986) ("To allow the Plaintiff to remand the civil rights case and effectively overturn the Defendant's otherwise lawful removal to federal court would essentially render meaningless the federal removal statute, which contemplates the use of removal procedures when the district court can properly exercise original jurisdiction over the matter in dispute."); California Republican Party v. Mercier, 652 F.Supp. 928, 932 (C.D.Cal.1986); Cook v. Robinson, 612 F.Supp. 187, 189 n. 2 (E.D.Va.1985); Routh v. City of Parkville, Mo., 580 F.Supp. 876, 877 (W.D.Mo.1984) ("It stretches current statutory language past the breaking point to hold that the granting of concurrent jurisdiction expressly prohibits removal.").⁴ See 14 Wright, Miller & Cooper, Federal Practice & Procedure, § 3729 at 495 (2nd ed. 1985). See also Whitfield v. Federal Crop Ins. Corp., 557 F.2d 413 (4th Cir.1977) (where federal and state courts have concurrent jurisdiction, Congress must expressly provide for nonremovability to prevent removal).

This Court concludes it should follow the overwhelming majority view. Therefore, this case will not be remanded on the basis of the concurrent jurisdiction of the state courts over § 1983 actions. Plaintiffs' motion to remand on that basis is DENIED.

B.

Plaintiffs also assert this Court should abstain from hearing this action and defer to the state courts because this is a "family law" matter. Plaintiffs cite to the leading cases on abstention, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to support their contention. This judge has noted that, "abstention questions are decided with a balancing approach beginning with a presumption against abstention and requiring a clear justification before exercising discretion to abstain." Hartshorn by Sade v. Heydinger, 647 F.Supp. 73, 75 (S.D.W.Va.1986), citing Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 14-16, 103 S.Ct. 927, 936-37, 74 L.Ed.2d 765 (1983); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818-19, 96 S.Ct. 1236, 1246-47, 47 L.Ed.2d 483 (1976).

Younger abstention is appropriate "where there is a parallel state proceeding at the time the federal action is instituted." Heydinger, supra at 75. There is no parallel state proceeding to this action. The prior state court action involving the Plaintiffs was closed in 1992. The instant complaint appears to raise issues involving the conduct of state officials in the closed litigation, but this Court deems Younger abstention to apply only to (1) parallel issues and (2) active cases. The Plaintiffs complaint does not raise parallel issues, and the state court litigation is not active. Younger abstention is therefore inappropriate.

Abstention in the Pullman context is "appropriate where a case presents a federal constitutional issue which could be mooted or presented in a different posture by a determination of state law." Heydinger, supra at 75. Plaintiffs assert, "the entire legislative system of family law comes into play and the construction of those state statutes and the administrative processes and any wrongs claimed as to their operation on this family are questions for a state court to decide." Plaintiffs' reply memorandum at 5. The foregoing assertion is made baldly with no citation to any state law requiring determination in this case. Plaintiffs have not overcome the presumption against abstention, Heydinger, supra at 75, and their motion to remand on abstention grounds is DENIED.

II. RE-SEALING THE FILE

Plaintiffs seek damages from the State of West Virginia for alleged wrongful acts committed by state officials. Plaintiffs are the movants in this action, yet they seek to have their claims resolved under seal, out of the public view. None of the Plaintiffs are of tender years nor do they now represent an infant. The Court believes issues of alleged governmental wrongdoing should be tried in public absent countervailing policy reasons of paramount importance; and this is especially true where damages are sought from the public coffers. Plaintiffs have an alternative to revealing the facts of their case — they need not have instituted this action. One who seeks damages payable from public monies, however, should not be permitted to hide the issues of their case behind the seal of this Court. Plaintiffs motion to re-seal this case is DENIED.

III.

RULE 12(e)

Defendants moved for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure. Rule 12(e) states, in pertinent part:

"Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired."

Defendants contend Plaintiffs complaint is defective because (1) the complaint does not clearly state the names of the defendants, (2) the paragraphs of the complaint relate more than one set of circumstances, transactions or occurrences, making response to the assertions therein difficult, and (3) the complaint does not state the specific acts of the specific defendants complained of, nor does it state the relevant time periods of the factual allegations or the specific rights of the plaintiffs violated.

Whether a motion for a more definite statement should be granted is a matter "generally left to the district court's discretion." Hodgson v. Virginia Baptist Hosp., Inc., 482 F.2d 821, 824 (4th Cir.1973). The standard for determining whether to grant a Rule 12(e) motion "is whether it is reasonable to require defendants to respond to the ... complaint." Gilbert...