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Rhodes v. Municipal Emergency Services, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

November 18, 2014

PAIGE RHODES, Plaintiff,

As Amended December 2, 2014.

For Paige Rhodes, Plaintiff: Charles Murphy Archibald, Jr., LEAD ATTORNEY, Archibald Law Firm, Charlotte, NC; Julie Hanna Fosbinder, LEAD ATTORNEY, Fosbinder Law Office, Charlotte, NC.

For Municipal Emergency Services, Inc., Defendant: Kelly Suzanne Hughes, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Charlotte, NC.

For Eric A. Johnson, Defendant: Kevin Joseph Dalton, LEAD ATTORNEY, Fisher & Phillips, LLP, Charlotte, NC.


Max O. Cogburn Jr., United States District Judge.

THIS MATTER is before the court on review of a Memorandum and Recommendation issued in this matter. In the Memorandum and Recommendation, the Magistrate Judge advised the parties of the right to file objections within 14 days, all in accordance with 28, United States Code, Section 636(b)(1)(C). Objections have been filed within the time allowed and Plaintiff has filed a timely response.

This matter presents the court with questions of subject matter jurisdiction, effectuation of service, and fraudulent joinder. Plaintiff initiated this action, which consists of only state law claims, in state court against Municipal Emergency Services (" MES") (an out of state defendant) and Mr. Johnson, a North Carolina resident. Defendant removed this case and Plaintiff then moved to remand, claiming that Mr. Johnson's North Carolina citizenship destroyed the complete diversity requirement of 28 U.S.C. § 1332. Defendants contend that jurisdiction in this federal court is proper in that Plaintiff fraudulently joined Mr. Johnson in this action in order to defeat diversity, and that after disregarding this fraudulently joined party, complete diversity exists between the parties.


I. Introduction

The Federal Magistrates Act of 1979, as amended, provides that " a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). However, " when objections to strictly legal issues are raised and no factual issues are challenged, de novo review of the record may be dispensed with." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not required by the statute " when a party makes general or conclusory objections that do not direct the court to a specific error in the Magistrate Judge's proposed findings and recommendations." Id. Moreover, the statute does not on its face require any review at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final determination and outcome of the case, and accordingly the court has conducted a careful review of the Magistrate Judge's recommendation.

The court has carefully considered the Magistrate Judge's findings and recommendation as to the disposition of the Plaintiff's Motion to Remand (#6), as well as the associated briefs and exhibits (##6-1, 12, and 16). The Magistrate Judge recommended that the motion be granted. Defendant MES has objected to the recommendation (#21) and Plaintiff has filed a timely response to such objections (#24). Having carefully considered the Magistrate Judge's recommendation, each objection, and the responses to each objection, the court will reverse the recommendation of the Magistrate Judge.

II. Legal Standards

A. Removal, Subject Matter Jurisdiction, and Fraudulent Joinder

An action may be removed from state court to federal court if it is one over which the district court would have had original jurisdiction. 28 U.S.C. § 1441(a). Courts construe removal jurisdiction strictly because removal implicates significant federalism concerns. Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005). Without a proper basis for subject matter jurisdiction, a removed case must be remanded to state court. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Jones v. American Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999). The burden of establishing federal jurisdiction is on the party seeking ...

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