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The Gemini lawsuit continues

The Rhode Island court where the Big East is suing West Virginia University over their plan to leave the conference by giving less than the required 27-month's notice, has ruled against the Mountaineers on their motion to dismiss. Now the case remains active in in parallel suits in both West Virginia and Rhode Island courts.

The Rhode Island court opted not to stay their proceedings either, a judicial procedure that allows a court to put a case "on hold" for a period of time. Normally state courts will do this out of deference to another state's court where an earlier suit was filed, exercising a principal called "comity." Comity is not mandatory for courts, however, and the Rhode Island court found that the WVU filed case was an anticipatory lawsuit that was not subject to comity under the first-to-file rule:

This Court is not required to defer based on principles of comity to a case filed four days prior. WVU, aware that the Big East may bring legal action,brought its own anticipatory action in West Virginia just days prior to the Big East‟s. This Court in its discretion denies WVU‟s motion to dismiss based on the first-to-file rule. [Citations omitted]

In fact, the Rhode Island court declined the WVU motion on all grounds:

After due consideration, this Court denies Defendant's motion to dismiss on all grounds. This Court finds personal jurisdiction over WVU and sufficient service of process. Further, this Court declines to dismiss the Plaintiff's Complaint on the basis of comity or the doctrine of forum non conveniens. Prevailing counsel may present an Order consistent herewith which shall be settled after due notice to counsel of record.

This does not mean, however, that the case will follow through in both courts simultaneously, however. The West Virginia judge, while denying the Big East's motion to dismiss the suit there, reserved judgement on whether to stay the proceedings and has yet to rule on that matter. A ruling could come down soon now that it is clear that the Rhode Island court will go forward. A stay there would be an interesting shift in the conference's favor, but is no guarantee.

Perhaps most interesting is that while the West Virginia court recognized some level of sovereign immunity flowing to WVU as an arm of the state government, the Rhode Island court declined to recognize it as such. Instead, Rhode Island classified WVU as a "public corporation," which would not have all of the privileges and immunities of a state government.

This currently controlling interpretation of sovereign immunity "supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts." Nevada[ v. Hall], 440 U.S. [410 (1979)].
A sovereign state will only have immunity in the courts of another sovereign state if there is an agreement between the two states providing for such immunity, or if the forum state voluntarily decides to respect that immunity as a matter of comity. Id. at 416.

In fact, that recognition of Sovereign immunity by the West Virginia courts was one of the reasons that the Rhode Island court based it's decision on, noting that a suit against a state entity in West Virginia cannot provide "adequate relief" because an injunction is limited in scope as relates to the state and counterclaims cannot adequately compensate the conference.

The next decisions expected to come along are the decision of the West Virginia court on whether or not to stay its proceedings and a decision in Rhode Island over whether or not to grant the Big East's request for a preliminary (temporary) injunction. The Big XII, which is hoping to release a 2012 football schedule next month, will be watching closely for that second decision. If the preliminary injunction is granted, West Virginia could be held in the Big East for at least one more season until the lawsuit in Rhode Island is resolved.

See also: Read the Rhode Island court's opinion.