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Wednesday, January 16, 2008
 
When Academic Interests Meet: Thank you, Rich Rodriguez

I got involved in this forum because of the overlap between sport and one of my primary scholarly interests--free speech. It is nice to see one time in which sport meets my other scholarly interest--civil procedure geekiness.

West Virginia last month sued former football coach Rich Rodriguez in state court in West Virginia seeking to recover on a $ 4 million buyout clause in Rodriguez's contract, after the coach left WVU to become head coach at Michigan. Today, Rodriguez removed the case to federal court; Rodriguez argues there is federal jurisdiction over the case because he was, at the time the lawsuit was filed, already a citizen of Michigan. The theory underlying diversity always has been that an out-of-stater should be able to avoid the likely local bias by proceeding in federal court, where judge and jury are deemed to be insulated by local passions. I guess that is even more true for a football coach who just jilted an entire state. As Prof. Steve Gensler said in a list serv comment, "I guess Rich Rod didn’t like the idea of facing a Monongalia County jury (or judge)."

The key is how quickly Rodriguez was able to change his citizenship. The petition alleges that in the eleven days between his hiring (December 16) and the suit (December 27), Rodriguez became a Michigan citizen because he and his wife registered to vote in Michigan, obtained Michigan drivers' licenses, set up home mailing address and telephone, and set up a business office in the new state. Pretty quick moving. But it is not clear generally how long it takes to become a citizen of a new state; can it be done in less than two weeks? There also are indications in news reports (and from sources teaching at WVU) that the Rodriguezes have not sold their house in West Virginia, that their children still are in school in West Virginia, and that Mrs. Rodriguez, at least, is spending her time in W. Va.

I already have made copies of the petition to distribute to my students.

Update: Thursday, 10:50 a.m.:

Putting aside whether Rodriguez is manipulating citizenship, an e-mailer points out two potential problems with the petition:

1) The Removal petition nowhere asserts that Rodriguez is a citizen of Michigan, only that he has changed domicile to Michigan and had "established residency in the State of Michigan at the time this lawsuit was commenced." Now the latter goes into the analysis of the former. But the statute (and the rules) look solely to whether the "Party is a citizen of ____" and that is missing. Oversight?

2) It is not clear this case is removable to federal court. The petition alleges "the Plaintiff is a resident of the State of West Virginia." But the plaintiff is the West Virginia University Board of Governors, which may, in fact, be an alter-ego of the State of West Virginia, rather than a citizen of West Virginia. State law provides that the Board "is the governing body with the mission of general supervision and control over the academic and business affairs of West Virginia
University. The West Virginia University Board of Governors (hereinafter, the "University") is a resident of the state of West Virginia."

The diversity statute only gives jurisdiction over actions "between citizens of different states" and case law since the late 19th century makes clear that a state is not considered a citizen for purposes of that provision. Given the above language about being a "resident" of the state, does that also make it a citizen for diversity purposes? Or does it remain an alter-ego of the state?





6 Comments:

Isn't the threshold for citizenship pretty low? Domicile = presence plus intent to remain indefinitely?

Anonymous Anonymous -- 1/17/2008 8:44 AM  


Yes, but, as indicated in some of my updated comments, it is not clear he is present in a way that would satisfy the statute.

Blogger Howard Wasserman -- 1/17/2008 1:31 PM  


But if citizenship in the jurisdictional context is equivalent to domicile, would it be necessary to say that he is a "citizen" of Michigan?

Anonymous Anonymous -- 1/17/2008 4:37 PM  


What would really make this fun is if the University of Michigan moved to intervene as a defendant--which would give the Supreme Court original jurisdiction as a trial court.

Anonymous Anonymous -- 1/18/2008 11:25 AM  


On the alter-ego doctrine, there is a case in Fourth Circuit, Maryland Stadium Authority v. Ellerbe Becket Inc.,that is on point to the question of whether public universities are alter-egos. The court concluded that the university in that case was, but may have stopped short of announcing a broader rule applicable to all public universities. Anyone interested can find the text of the case at http://pacer.ca4.uscourts.gov/opinion.pdf/041743.P.pdf

By the way, I had Professor cummings for a few classes during my time at WVU Law; I'm sure he's in Sports Law/Civ Pro heaven right now as well.

Blogger Brian -- 1/18/2008 4:33 PM  


Anonymous:

The only way this case could be in federal court at all would be in the Supreme Court on original jurisdiction. SCOTUS has original and exclusive jurisdiction over controversies between two or more states and original but not exclusive jurisdiction over actions by a State against a citizen of another State (where the case is in federal court on diversity). Unfortunately for Rodriguez, there is no removal from a state trial court to SCOTUS.

Blogger Howard Wasserman -- 1/19/2008 1:15 AM  


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