WEST VIRGINIA RECORD

SUMMERSVILLE – Summersville Mayor Robert Schafer and police sergeant Jason Lanham say a case in which a woman claims Lanham unlawfully detained her after Schafer blocked her return to a gambling parlor should remain in federal court.

Schafer, Lanham and the city of Summersville removed Shelly Stubbs' complaint against them to federal court and contend it should remain there because Stubbs raised a federal question in her lawsuit.

In her complaint originally filed in Nicholas Circuit Court, Stubbs claims she talked with Schafer outside Patty's, a gambling parlor in Summersville. During their conversation, Stubbs complained to Schafer of a noisy celebration that happened next to her residence near Webster Road, according to the complaint.

"As a result thereof, Robert Schafer, who is a loyal and dedicated customer of Patty's, and spends considerable more money than does the plaintiff, called Patty's, told them that if plaintiff was allowed back in their establishments, he would quit coming," the suit states.

"Robert Schafer, as mayor of the City of Summersville, unlawfully and unjustly caused plaintiff to be barred from an establishment for no other reason that he did not want to listen to complaints of citizens of Summersville while he was pursuing his gambling interests."

Not wanting to lose the mayor's business, Patty's area manager Kristy Spenia decided to personally deliver a letter to Stubbs' prohibiting her from returning to the establishment, the complaint says. She requested Summersville police accompany her while she handed the letter to Stubbs.

Summersville police chief Jay Novack approved the accompaniment and assigned Lanham to the task, Stubbs claims.

So when Lanham saw Stubbs sitting in her automobile in Memorial United Methodist Church's parking lot, he detained her for five minutes until Sepia could arrive to deliver the letter, according to the complaint.

"Plaintiff was not free to leave and was being held against her will for that time," the suit states. "Jason Lanham was solely to accompany Kristy Spenia to prevent any violence or confrontation. Instead, he arrested plaintiff and held her without cause, without justification, with no warrant pending, and plaintiff had committed no crime in his presence."

In her four-count suit, Stubbs alleges violation of civil rights code, tort of outrage, false arrest and false imprisonment.

The defendants removed Stubbs' case to federal court, saying that because Stubbs alleged a violation of the U.S. Constitution in her complaint, the lawsuit should be heard in the appropriate jurisdiction.

But Stubbs attempted to remand the case back to circuit court, contending that she seeks less than $75,000, which is usually the minimum monetary requirement before a case can be removed to federal court.

The defendants fought back, saying there are two separate ways for a complaint to be removed in federal court.

In one case, diversity of citizenship exists in which the plaintiff is a resident of a different state than the defendants. In this instance, the plaintiff has to be seeking more than $75,000 for the lawsuit to be removed to federal court.

But in the second case, the plaintiff can be demanding the answer to a federal question. In this case, the plaintiff does not have to be seeking more than $75,000 for the case to be removed, the defendants claim.

"The defendants are not claiming that diversity of citizenship exists, but only that a question of federal law has been presented for alleged violations of the United States Constitution," the suit states. "As such, the amount in controversy in this case is completely irrelevant and should not form the basis of a remand to the Circuit Court of Nicholas County, West Virginia."

Stubbs is seeking compensatory and punitive damages.

The defendants are asking the court to deny Stubbs' motion to remand the case to Nicholas Circuit Court, plus award them costs and other relief the court deems just.

Larry E. Losch of Losch and McCourt in Summersville will be representing Stubbs.

Cy A. Hill Jr. of Pullin, Fowler, Flanagan, Brown and Poe in Charleston will be representing the defendants.

U.S. District Court Judge John Copenhaver has been assigned to the case.

U.S. District Court case number: 2:09-cv-1114