Strickland et al v. Freedom Industries, Inc. et al, No. 2:2014cv11009 - Document 27 (S.D.W. Va. 2014)

Court Description: MEMORANDUM OPINION AND ORDER granting the West Virginia Department of Environmental Protection's 21 MOTION to Dismiss; directing that this action as to WVDEP is dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 5/19/2014. (cc: counsel of record) (taq)

Download PDF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON ROGER STRICKLAND and ANGEL STRICKLAND and NEWTECH SYSTEMS, INC., and RACHEL BLAKENSHIP and MICHAEL BRYANT and CHRISTIAN BRYANT and JOHN MICHAEL BRYANT and HELEN CHRIST and TIANA ALLEN and CHRISTOPHER ALLEN and JOCELYN ALLEN and GARIETH ALLEN and SABRA ALLEN, Minors, By and Through Their Parents and Next Friends, TIANA ALLEN and CHRISTOPHER ALLEN and ANDREA LUPSON and JON LUPSON and Individually, and on behalf of all others similarly situated, Plaintiffs v. Civil Action No. 2:14-11009 FREEDOM INDUSTRIES, INC., and WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION and AMERICAN WATER WORKS COMPANY, INC., d/b/a/ WEST VIRGINIA AMERICAN WATER COMPANY, and EASTMAN CHEMICAL COMPANY and CORPORATE JOHN DOES 1-6, and INDIVIDUAL JOHN DOES 7-10, Defendants MEMORANDUM OPINION AND ORDER Pending is the motion to dismiss filed April 24, 2014, by the West Virginia Department of Environmental Protection ( WVDEP ). On February 24, 2014, this action was removed from the Circuit Court of Kanawha County. Among the claims asserted by the plaintiffs is a negligence cause of action against the WVDEP. In seeking dismissal, the WVDEP asserts, inter alia, that it is immune from suit under the Eleventh Amendment to the United States Constitution. The Eleventh Amendment states, The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The immunity protects unwilling states from damage suits in federal court, along with their agents and instrumentalities. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Will v. Michigan Dep't of State Police, 491 U.S. at 70 71; Edelman v. Jordan, 415 U.S. 651, 662 63 (1974); Bland v. Roberts, 730 F.3d 368, 389-90 (4th Cir. 2013). It is undisputed that the WVDEP is an instrumentality of the State of West Virginia. from this action. It is thus entitled to dismissal In accordance with governing precedent, however, the dismissal is without prejudice. See Southern Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ( A dismissal for . . . any . . . defect in subject matter jurisdiction must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits. ). 2 It is, accordingly, ORDERED that the motion to dismiss be, and hereby is, granted, and that this action as to WVDEP be, and hereby is, dismissed without prejudice.1 The Clerk is directed to forward copies of this written opinion and order to all counsel of record. DATED: May 19, 2014 John T. Copenhaver, Jr. United States District Judge 1 It is noted that the circumstances in this case are unlike those in Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 624 (2002) ( We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity . . . .). WVDEP asserts it was not served with the notice of removal. It thus could not have joined therein. 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.