Spaulding v. Mingo County Bd. of Educ.

• Decision Date: 25 August 1995
• Docket Number: Civ. A. No. 2:95-0165.
• Citation: 897 F. Supp. 284
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Ronnie Lee SPAULDING, et al., Plaintiffs, v. MINGO COUNTY BOARD OF EDUCATION, et al., Defendants.

897 F. Supp. 284

Ronnie Lee SPAULDING, et al., Plaintiffs, v. MINGO COUNTY BOARD OF EDUCATION, et al., Defendants.

Civ. A. No. 2:95-0165.

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

August 25, 1995.

Mary M. Downey, Charleston, WV, for plaintiffs.

Gerard R. Stowers, Elizabeth D. Harter, Bowles, Rice, McDavid, Graff & Love, Charleston, WV, Claudia W. Bentley, Bowles, Rice, McDavid, Graff & Love, Martinsburg, WV, Roberta Green and Charles R. Bailey, Shuman, Annand & Poe, Charleston, WV, for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is the Plaintiffs' Motion to Remand. The parties have submitted memoranda in support of their respective positions and the matter is mature for the Court's consideration.

This action was initiated in the Circuit Court of Kanawha County, West Virginia on February 14, 1995. On March 7 the Defendants timely filed a Notice of Removal in this Court asserting the Plaintiffs' causes of action satisfy the original subject matter jurisdiction of this Court, pursuant to the provisions of Title 28 United States Code Sections 1331¹, 1343(a)(3)², 1367³, and 1441(b)⁴. The Defendants contend the factual allegations apparent on the face of the Complaint allege, under color of state laws and regulations, deprivations of rights secured by the Constitution of the United States and laws providing for the equal rights of citizens pursuant to 20 United States Code Section 1400, et seq., the Individuals with Disabilities Education Act ("IDEA"), in that Plaintiffs allege Ronnie Lee Spaulding was denied special education and related services; and, pursuant to 29 United States Code Section 794 (Section 504 of the Rehabilitation Act of 1973), in that Plaintiffs allege Ronnie Lee Spaulding was discriminated against by virtue of his disability by the Defendant education agencies, their agents and representatives.

The Plaintiffs' Motion for Remand argues no cause of action arising under the Constitution, treaties, or laws of the United States is contained in the Complaint. In fact, the Complaint specifically states the action "is not filed under the United States Constitution or 42 U.S.C. and related federal statutes." (Complaint ¶ 2). Plaintiffs' Complaint asserts several causes of action: (a) violations of West Virginia common law, namely the tortious acts of assault and battery, infliction of severe emotional distress, negligent supervision and training, false imprisonment, misrepresentation and fraud, and retaliation; (b) violations of the West Virginia Human Rights Act, West Virginia Code 5-11-1, et seq.; (c) violations of the West Virginia Constitution; (d) violations of West Virginia Code §§ 18-20-1, 5, and 7; and, (e) violations of the Policies, Rules, and Regulations of the West Virginia Board of Education, specifically Rules 4370, 4371, and 2419 promulgated through the West Virginia Legislature.

If the Court concludes it has original jurisdiction over these claims, Plaintiff argues state law predominates over federal law and the Court yet has discretion, pursuant to Title 28 United States Code Sections 1367(c) and 1441(c)⁵, to remand all claims for state adjudication.

DISCUSSION

Because federal courts are courts of limited jurisdiction, the removal statutes, 28 United States Code Section 1441 et seq., must be given a strict construction and the burden of establishing federal jurisdiction is upon the removing party. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Fairfax Countywide Citizens Ass'n v. Fairfax County, Va., 571 F.2d 1299 (4th Cir.), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978); Bowman v. White, 388 F.2d 756 (4th Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 214, 21 L.Ed.2d 172 (1968). Normally, the existence of federal jurisdiction on removal must be determined from the face of the plaintiff's complaint. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Gully v. First Nat'l Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936).

"To sustain a claim of federal question jurisdiction, the complaint must ... contain allegations `affirmatively and distinctly' establishing federal grounds, `not in mere form, but in substance' and `not in mere assertion, but in essence and effect.'" Burgess v. Charlottesville Savings & Loan Ass'n, 477 F.2d 40, 43 (4th Cir.1973) (citations omitted) (cited with approval in Hubbard v. Union Oil Co. of California, 601 F.Supp. 790, 792-93 (S.D.W.Va.1985) (Haden, C.J.). The mere existence of a disputed issue of federal law does not necessarily confer federal question jurisdiction. Goldsmith v. Mayor & City Council of Baltimore, 845 F.2d 61, 64 (4th Cir.1988) (citing McCorkle v. First Pa. Banking & Trust Co., 459 F.2d 243 (4th Cir.1972)).

To a considerable extent, a plaintiff is the master of his claim and should be free to frame and pursue his theory of pleading, especially if the claim could be state or federal. Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, n. 6, 106 S.Ct. 3229, 3233 n. 6, 92 L.Ed.2d 650 (1986) ("Jurisdiction may not be sustained on a theory that the plaintiff has not advanced"); Pan American Petroleum Corp. v. Superior Court of Del. In & For New Castle County, 366 U.S. 656, 662-63, 81 S.Ct. 1303, 1307-08, 6 L.Ed.2d 584 (1961); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411-12, 57 L.Ed. 716 (1913) ("the party who brings a suit is master to decide what law he will rely upon").

"The plaintiff may by the allegations of his complaint determine the status with respect to removability of a case ... when it is commenced, and ... this power to determine removability ... continues with the plaintiff throughout the litigation, so that whether such a case ... shall afterwards become removable depends ... solely upon the form which the plaintiff by his voluntary action shall give to the pleadings."

Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239-40, 62 L.Ed. 713 (1918); Sanford v. Moving Picture Mach. Operators' Protective Union, Local No. 224, 14 F.3d 596 (4th Cir.1993). "Where plaintiff's claim involves both a federal ground and a state ground, the plaintiff may plead both grounds.... Plaintiff is, however, free to ignore ... the federal ground and rely on the state ground." 1A James Wm. Moore, Moore's Federal Practice ¶ 0.1603. — 3 at 230-231 (2d ed. 1995) (footnote citations omitted).

The well-pleaded complaint rule is designed to protect the plaintiff from a defendant reading a cause of action into a complaint where none is stated. Scott v. Greiner, 858 F.Supp. 607, 609 (S.D.W.Va.1994) (Haden, C.J.). The rule is designed to allow the plaintiff the right to choose the forum. Id. The plaintiff either may assert state causes of action or include federal causes of action, thereby leaving the action vulnerable to removal by the defendant. Id.; Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 964 (2d Cir.1981) ("a plaintiff alleging facts that would support a claim founded upon either federal or state law is free to confine his claim to one based on state law and proceed in state court"); La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975); Brough v. United Steelworkers of America, 437 F.2d 748 (1st Cir. 1971).

"To be sure, `arising under' removal is not proper simply because the factual allegations of the complaint could have formed the basis for reliance on federal law; where the facts of a case support both a federal and a state law claim, the `face-of-the-complaint rule' provides that `the party who brings the suit is master to decide what law he will rely upon,' The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913), meaning that the plaintiff in such a case can confine its complaint to a state law theory and proceed in state court without fear of removal to federal court."

Alameda Room, Inc. v. Pitta, 538 F.Supp. 1072, 1075 (S.D.N.Y.1982) (emphasis in original); United Jersey Banks v. Parell, 783 F.2d 360 (3d Cir.1986), cert. denied, 476 U.S. 1170, 106 S.Ct. 2892, 90 L.Ed.2d 979 (1986) (A case does not arise under federal law unless a federal question is raised by the allegations of plaintiffs' well-pleaded complaint. A plaintiff is under no obligation to state a federal claim even if one is available.). "The plaintiff has the prerogative of determining the theory of his action and, so long as fraud is not involved, he may defeat removal to the federal courts by avoiding allegations which provide a basis for the assertion of federal jurisdiction." Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). Therefore, great weight is given to the plaintiff's chosen forum and legitimate doubts as to the existence of federal jurisdiction must be resolved against removal and in favor of remand. See gen. 1A James Wm. Moore, Moore's Federal Practice, ¶ 0.157i. — 3 at 43, n. 23 (2d ed. 1995).

An exception to this principle arises when "the claim, although ostensibly asserted under state law, is in fact a federal law claim but by artful pleading is misrepresented in order to defeat defendant's right to a federal forum." Salveson v. Western States Bankcard Ass'n, 525 F.Supp. 566, 574 (N.D.Cal.1981), aff'd in part and rev'd in part on other grounds, 731 F.2d 1423 (9th Cir.1984). Where the plaintiff seeks to conceal the true federal nature of his claim through artful pleading, the court will look beyond the complaint to determine whether a federal question persists precluding remand. Scott v. Greiner, 858 F.Supp. 607, 609, n. 1 (S.D.W.Va.1994) (Haden, C.J.).

Under the artful pleading doctrine, a plaintiff cannot...