Louise Root v. County of Fairfax

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1735
LOUISE ROOT,
Plaintiff - Appellant,
v.
COUNTY OF FAIRFAX; MICHELLE MCCALL; PAMEAL SCHMOLL; MICHEL
BODART; DIANNE LANIGAN; SUE GILBERT; SHEILA REILLY; JOHN
COLWELL; BRYANT FLETCHER,
Defendants - Appellees.
No. 08-1794
LOUISE ROOT,
Plaintiff - Appellee,
v.
COUNTY OF FAIRFAX; MICHELLE MCCALL; PAMEAL SCHMOLL; MICHEL
BODART; DIANNE LANIGAN; SUE GILBERT; JOHN COLWELL; BRYANT
FLETCHER; SHEILA REILLY,
Defendants - Appellants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cv-00498-CMH-TCB)
Submitted: March 10, 2010 Decided: March 26, 2010

-- 1 of 8 --

2
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia, for
Appellant/Cross-Appellee. David P. Bobzien, County Attorney,
Peter D. Andreoli, Jr., Deputy County Attorney, Karen L.
Gibbons, Senior Assistant County Attorney, Fairfax, Virginia;
David J. Fudala, Fairfax, Virginia, for
Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 8 --

3
PER CURIAM:
Louise Root appeals from the district court’s order
dismissing her 42 U.S.C. § 1983 (2006) complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim. The Appellees
filed a cross-appeal of the portion of the order remanding the
supplemental state law claim to the state court. Root filed a
motion to dismiss the cross-appeal. For the reasons below, we
affirm the district court’s order.
Louise Root filed a civil action in the Fairfax County
Circuit Court against the County of Fairfax (County) and eight
individual defendants, arising from the seizure of nine dogs and
one horse from Root by County animal control officers. The
individual defendants were sued because ownership of the animals
was transferred to them by adoption from the County. The action
contained one count seeking damages under 42 U.S.C. § 1983
against the County for depriving Root of her property without
due process under the Fourteenth and Fifth Amendments. The only
remaining count sought an injunction against the County and the
individual defendants ordering the return of the animals to
Root.
We review de novo the district court’s rulings on a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See
Philips v. Pitt County Mem’l Hosp., 572 F.3d 176, 179-80 (4th
Cir. 2009). To survive a Rule 12(b)(6) motion, a complaint’s

-- 3 of 8 --

4
“[f]actual allegations must be enough to raise a right to relief
above the speculative level” and have “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Generally,
when ruling on a Rule 12(b)(6) motion, “a judge must accept as
true all of the factual allegations contained in the complaint.”
Ericson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
Under the Due Process Clause of the Fifth Amendment,
no person shall be “deprived of life, liberty, or property,
without due process of law.” U.S. Const. amend. V. Procedural
due process requires, at a minimum, fair notice and an
opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333
(1976). In order to determine whether an individual has
received fair notice, we “must examine the relevant facts of
each case.” United States v. Hoechst Celanese Corp., 128 F.3d
216, 224 (4th Cir. 1997). Beyond the minimum requirements of
notice and an opportunity to be heard, due process is “flexible
and calls for such procedural protections as the particular
situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481
(1972).
To state a successful claim for failure to provide due
process, “a plaintiff must have taken advantage of the processes
that are available to him or her, unless those processes are
unavailable or patently inadequate.” Alvin v. Suzuki, 227 F.3d

-- 4 of 8 --

5
107, 116 (3d Cir. 2000) (reviewing procedural due process claim
where plaintiff did not follow formal grievance procedure
provided).
Keeping this flexibility of the due process
requirements in mind, we conclude that the procedural due
process given to Root was adequate. Root was notified of the
allegations of animal neglect against her in accordance with Va.
Code Ann. § 3.1-796.115(A) (2007). She does not contend that
the process provided in the Code of Virginia was inadequate.
Root’s contention is that, after the County moved for and was
awarded a nonsuit in the circuit court, there was no avenue
provided for return of the animals. However, Root had multiple
opportunities to arrest the adoption of the animals directed by
the general district court’s December 22, 2004 ruling and order
entered on January 4, 2005. Knowing that the order was to be
effective immediately, she did not file for a stay. Root cannot
now complain that the order was effectuated. Neither did Root
file a motion for stay when she appealed to the state circuit
court. We conclude the district court did not err in holding
that there was no violation of procedural due process under
these circumstances.
In its cross-appeal, the County argues that the
district court erred in remanding the state claim to state
court. The County asserts this count failed to state a claim

-- 5 of 8 --

6
for relief as the County was compelled by a general district
court order to place the animals for adoption. Therefore, the
County argues that the count should have been dismissed instead
of remanded. The County maintains that the general district
court order directing that the County place the animals was a
final order and therefore is dispositive on the question of
whether Root is now entitled to the animals. The County further
argues that the state law count did not set forth a cause of
action, but sought injunctive relief only and relied entirely on
the § 1983 count being a viable cause of action. The County
concedes, however, that the state law count arguably states a
claim in the nature of detinue, but contends a claim for detinue
would not be successful because, again, the County had lawfully
placed the animals. Root continues to argue that the County did
not have the right to place the animals for adoption because the
general district court order was not a final order and title to
the animals had not passed from Root.
Appellate review of remand orders is permitted when it
is clear that the district court’s order was based, not on a
belief that it lacked subject matter jurisdiction over the
removed action, but because it declined to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(c) (2006). See
Jamison v. Wiley, 14 F.3d 222, 233 (4th Cir. 1994); see also
Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606 n.16 (4th

-- 6 of 8 --

7
Cir. 2002) (explaining that, under “well-settled precedent,”
remands based on § 1367(c) are appealable final orders under 28
U.S.C. § 1291 (2006)); Hinson v. Norwest Fin. South Carolina,
Inc., 239 F.3d 611, 615 (4th Cir. 2001) (finding that court had
jurisdiction to review remand order that was “not derived from
§ 1447(c), but is inherent in the authority of a district court
to decline to exercise jurisdiction under 28 U.S.C. § 1367(c)”).
Here, the district court specifically declined to
exercise its jurisdiction under § 1367(c). The district court’s
ruling from the bench demonstrates that the court, having
dismissed the only federal claim, believed it had the
discretionary authority to exercise supplemental jurisdiction
over the remaining state law claim, but chose not to do so.
Accordingly, because the district court did not remand for lack
of subject matter jurisdiction, or because of a defect in the
removal procedure, this court has jurisdiction to review the
district court’s remand decision.
The district court’s remand order is reviewed for
abuse of discretion. Hinson, 239 F.3d at 617. Under § 1367(c),
a district court may decline to exercise its supplemental
jurisdiction if:
(1) the claim raises a novel or complex
issue of State law,
(2) the claim substantially dominates over
the claim or claims over which the

-- 7 of 8 --

8
district court has original
jurisdiction,
(3) the district court has dismissed all
claims over which it had original
jurisdiction, or
(4) in exceptional circumstances, there are
other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c).
Here, the court had dismissed the sole claim over
which it had original jurisdiction. See 28 U.S.C. § 1367(c)(3).
There is nothing in the record to suggest that it was an abuse
of discretion to decline to exercise supplemental jurisdiction.
We therefore also affirm the portion of the district court’s
order remanding the state law claim to the state court for
further proceedings. We deny Root’s motion to dismiss the
cross-appeal.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

-- 8 of 8 --