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Putative class action over toll fees dismissed

Where a woman’s putative class-action suit alleged the West Virginia Parkways Authority unjustly enriched itself by collecting administrative and notice toll fees in violation of West Virginia law, but the Class Action Fairness Act limits jurisdiction where a governmental entity is the primary defendant and it may be immune from suit, the court lacked jurisdiction over the lawsuit.


In 2018, Blazine Monaco drove through four separate cash toll booths on the West Virginia Turnpike. Because she had no cash on hand, Monaco passed through without paying the tolls. Nor did she pay the tolls on her own after her trip. So the West Virginia Parkways Authority sent Monaco an “Unpaid Toll Violation Notice.” That notice explained that she now owed $8 in unpaid tolls, $120 in administrative fees and a $10 notice fee. Monaco paid the $138 but then filed a putative federal class-action suit against the Parkways Authority.

In her suit, Monaco alleged that the Parkways Authority unjustly enriched itself by collecting the administrative and notice fees in violation of West Virginia law. The Parkways Authority moved to dismiss the suit, arguing that it was immune from suit under the United States and West Virginia Constitutions, and that, in any event, the fees were properly assessed under its Enabling Act.

The district court granted the Parkways Authority’s motion. It rejected the Parkways Authority’s immunity arguments but concluded that the fees were proper under the Parkways Authority’s Enabling Act. This court questioned whether it had jurisdiction over this suit and asked the parties to address this issue at oral argument.


Monaco alleged in her complaint that there was jurisdiction under the Class Action Fairness Act. That Act expanded diversity jurisdiction over certain interstate class actions. But the Act also limits this jurisdictional grant. Relevant here, the Act’s jurisdictional grant “shall not apply to any class action in which … the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief.” This language raises three questions: (1) Who are the primary defendants? (2) Are they governmental entities? and (3) May the district court be foreclosed from ordering relief against them?

The first question is easy, as there is only one defendant here — the Parkways Authority. So it is the “primary defendant.” The second question is also straightforward. The Parkways Authority is a governmental entity. It is “an agency of the state” of West Virginia whose powers and duties are set by statute.

That leaves the third question, which is also satisfied. The district court “may be foreclosed from ordering relief” against the Parkways Authority based on its assertion of sovereign immunity. The statute’s use of “may be” reflects that the court need not determine that the Parkways Authority certainly has immunity to hold that the Act nonetheless limits jurisdiction here. In context, “may” conveys a mere possibility or likelihood, not certainty.

Limiting § 1332(d)(5)(A) to times when a governmental entity is in fact entitled to sovereign immunity would render that subsection superfluous, because the entity would already be immune from suit. So the Parkways Authority need not actually be entitled to sovereign immunity for § 1332(d)(5)(A) to apply.

But that does not mean that “may be” has no limits. A bare claim of sovereign immunity would not trigger § 1332(d)(5)(A). Section 1332(d)(5)(A) is a prerequisite for jurisdiction. Invoking jurisdiction under the Act requires plausibly alleging — and if challenged, demonstrating — that jurisdiction exists. And a plainly implausible claim of immunity would not defeat jurisdiction by application of § 1332(d)(5)(A) because it would not show that the district court “may be foreclosed from ordering relief.”

In this case, the court need not define the precise bounds of § 1332(d)(5)(A). It applies without definitively determining that the Parkways Authority has immunity. And it would not apply if the Parkways Authority’s claimed immunity was plainly implausible. Whether the precise line is drawn closer to possibility, probability or plausibility, the Parkways Authority’s immunity arguments are enough to apply § 1332(d)(5)(A). Accordingly, the judgment of the district court must be vacated, and the case remanded to the district court with directions to dismiss without prejudice.

Vacated and remanded.

Monaco v. WV Parkways Authority, Case No. 21-1230, Jan. 6, 2023. 4th Cir. (Richardson), from SDWVA at Charleston (Goodwin). Patrick J. Perotti for Appellant. Stuart A. McMillan for Appellee. VLW 023-2-008. 8 pp.

VLW 023-2-008