Why WVU v. Rodriguez Was Remanded to West Virginia State Court

by Howard M. Wasserman

(Editor's Note: Howard M. Wasserman is currently serving as a Visiting Associate Professor of Law at the St. Louis University School of Law for the 2007-2008 academic year. He has also served as an Associate Professor of Law at the Florida International University College of Law since 2003.)

My thanks to Professor andré cummings and the WVU Sports and Entertainment Law Society for inviting me to occasionally guest blog about West Virginia University v. Rodriguez. I also want to thank visiting Professor Beth Thornburg at the WVU College of Law, who has been keeping me apprised of the developments and documents.

As a college sports fan and occasional sports law commentator, I think this could prove to be a very important case about the mobility of prominent Division I coaches in football and men’s basketball and about what schools can try to do to prevent (or at least deter) coaches from bolting for better jobs. As a civil procedure teacher and scholar, it is fun to see a high-profile case that turns on basic procedural issues and to be able to use that case as a teaching tool. Finally, I hope all students watch this case closely; it is a great opportunity to be able to watch case law being made based in a real-world situation and in a real-world context with which you are familiar. For law students, I think it can help make the stuff you are reading about feel more “real.”

In a Feb. 11 post to this blog, Stacey Evans wrote about last week’s order from the federal district court remanding the case back to state court in West Virginia and does a good job explaining the decision for sending the case back. Let me add a few thoughts on the procedural niceties underlying Judge Bailey’s decision.

Federal jurisdiction in this case turned on Congress’ decision to divide jurisdiction among the three levels of the federal judicial in a particular way. Federal district courts (trial courts) have jurisdiction only over civil actions between citizens of different states and, under well-established Supreme Court precedent, a state or state agency is not a citizen of a state. Because the University is an arm of the State of West Virginia, the case could not originally have been filed in federal district court, even if Rich Rodriguez had successfully changed his citizenship to Michigan prior to the date of the lawsuit. And because the case could not have been filed in federal district court in the first instance, Rodriguez as a defendant could not remove it.

If Rodriguez had become a Michigan citizen in time, the case might have been brought in the federal system, but only in the Supreme Court exercising its original jurisdiction over “All actions or proceedings by a State against the citizens of another State.” Putting that class of case within the Supreme Court’s original jurisdiction was a nod to the special concerns of states as independent sovereign entities — if a state is going to litigate in federal court, keep it there for the shortest time possible by allowing it to begin and end the case in the court of last resort. But that possibility would not help Rodriguez, because there is no procedure for a defendant removing a case from state court to the Supreme Court of the United States.

And that is why Judge Bailey never reached the question of Rodriguez’s citizenship - it was unnecessary. No matter where Rodriguez is a citizen, the case was not removable to federal court under any circumstances. Moreover, and probably more important as an explanation for Judge Bailey’s approach, the citizenship question was more complicated than the legal issue of WVU’s state status. Citizenship for purposes of diversity is about a person’s “domicile,” his true, fixed, permanent residence to which he always intends to return. It is undisputed that, prior to taking the Michigan job, Rodriguez was a citizen of West Virginia because that was his domicile — he lived there and he intended to remain there. Citizenship changes only if a person affects a “change-of-domicile” by actually taking up residence in a new state with the intent to remain there. Clearly Rodriguez intended to remain in Michigan. But the court would have had to undertake the potentially complex and fact-intensive inquiry into what Rodriguez did to try to establish himself and his family in Michigan and when and whether that was sufficient, where he was spending most of his time as of December 27, and where he actually was “residing” at the time of the lawsuit. This, in turn, probably would have required some period for the parties to take jurisdictional discovery on the question of citizenship — deposing witnesses and exchanging and reviewing documents showing Rodriguez’s activities since he took the Michigan job on December 14. That is a lot of time and effort for an issue that, in light of WVU’s status as an arm of the state, has no effect.

Of course, the original rationale for giving the federal judiciary jurisdiction over controversies between citizens of different states or between a State and citizens of another state was to enable an out-of-state litigant to avoid potential local bias that comes from having to litigate on “foreign” soil (think about it historically — in 1789, a New Yorker litigating in Georgia would have been like a Venezuelan litigating in Chile). But the way Congress divided that jurisdiction creates the anomaly that an out-of-stater sued by the State, with the State bringing to bear all its power and resources and influence, remains stuck in that state’s courts to fight the State on its own soil. It is hard to imagine a defendant more subject to potential local bias within a forum than the former football coach of the flagship school who left for the job at a higher-profile school in a different state. Even more so when he is fighting the State of West Virginia.

But state court is where Rodriguez was sued and that is where the case will be litigated — no matter where he now claims citizenship.