United States District Court, M.D. North Carolina
ANTOINETTE NICOLE BROWN SLAUGHTER, KATRINA LAVERNE BROWN HARRISON, EVELYN DELAINE BROWN JONES, and MARCIA LATANZA BROWN, Petitioners,
MAXINE PATRICIA BROWN PIPPEN and husband, MICHAEL J. PIPPEN, Respondents.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE .
April 28, 2016, Petitioners filed a Petition to Partition in
Guilford County Superior Court, seeking the partition by sale
of certain real property against Respondents, pursuant to
North Carolina General Statute § 46-22. (ECF No. 1
¶ 2; ECF No. 9 at 2.) Following substantial litigation
in state court, including multiple orders by the state court
and appeals by Respondents, (see ECF Nos. 7, 7-1 to
7-7), Respondents filed a Notice of Removal to this Court on
March 22, 2018, (ECF No. 1). Respondents are appearing
pro se in this proceeding. (See ECF Nos. 5,
6.) Before the Court are Petitioners' Motion to Remand
and Motion for Attorney's Fees and Costs (“Motion
to Remand”), (ECF No. 8), Respondents' Motions to
Strike Petitioners' Motion to Remand and Strike
Petitioners' Motion for Attorney's Fees and Costs,
(ECF Nos. 12, 14), and Respondents' Motion to Amend
Notice of Removal Jurisdiction, (ECF No. 16). Because this
Court concludes that it lacks subject matter jurisdiction to
entertain this matter, Petitioners' Motion to Remand will
be granted, including their request for attorney's fees,
and all remaining motions will be denied as moot.
MOTION TO REMAND
make two arguments in support of their motion to remand this
matter to state court: (a) that this Court does not have
subject matter jurisdiction over this petition, and (b) that
Respondents' removal was untimely. (ECF No. 9 at 5, 9.)
Respondents, on the other hand, are seeking to invoke the
Court's federal question jurisdiction under 28 U.S.C.
§ 1331, arguing that “[t]his action arise [sic]
[under] the United State [sic] Constitution Fourteen [sic]
Amendment.” (ECF No. 1 ¶¶ 9-10.)
matter jurisdiction relates to the Court's power to hear
this case. Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 453 (4th Cir. 2012) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006)). Thus, the Court must address this issue before
addressing other issues in the case. Jones v. Am. Postal
Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). The
burden of establishing subject matter jurisdiction rests with
the party seeking removal. Hoschar v. Appalachian Power
Co., 739 F.3d 163, 169 (4th Cir. 2014). Those seeking
the removal of a case from state court to federal court may
remove “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). However,
remand is required “[i]f at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction.” 28 U.S.C. § 1447(c). The
court must strictly construe its removal jurisdiction, and if
jurisdiction is doubtful, remand is necessary.Palisades
Collections LLC v. Shorts, 552 F.3d 327, 333-34 (4th
the critical inquiry here is “whether [this] claim
could have been brought originally in federal district
court.” Lontz v. Tharp, 413 F.3d 435, 439 (4th
Cir. 2005) (quoting King v. Marriott Int'l,
Inc., 337 F.3d 421, 424 (4th Cir. 2003)). Under 28
U.S.C. § 1331, district courts have jurisdiction over
“all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Courts generally use the “well-pleaded
complaint rule” to determine whether federal question
jurisdiction exists, thus asking the question whether
“a federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). “A civil action can ‘arise under'
federal law in two ways.” Flying Pigs, LLC v. RRAJ
Franchising, LLC, 757 F.3d 177, 181 (4th Cir. 2014).
“Most commonly, ‘a case arises under federal law
when federal law creates the cause of action
asserted.'” Id. (quoting Gunn v.
Minton, 568 U.S. 251, 257 (2013)). Here, all of
Petitioners' claims originate in state law. (See
ECF No. 1-1 at 2.) The Court must therefore determine whether
Petitioner's action falls within the “slim
category” of state law cases where “a federal
issue is: (1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court
without disrupting the federal-state balance approved by
Congress.” Gunn, 568 U.S. at 258.
in this case have not identified any federal issue raised by
Petitioners' claims, nor have they addressed any of the
remaining requirements articulated by the Supreme Court in
Gunn. Rather, Respondents argue that the state court
proceedings and the state statutes relied on in those
proceedings are unconstitutional because they do not
guarantee a right to a jury trial. (ECF No. 13 at 15; ECF No.
15 at 15.) However, as argued by Petitioners, “[t]he
fact that a defense to the action may raise a federal
question is immaterial” to the inquiry of whether a
case arises under federal law for the purpose of removal.
(ECF No. 9 at 12 (emphasis omitted)); see City of
Winston-Salem v. Chauffeurs, Teamsters & Helpers Local
Union No. 391, 470 F.Supp. 442, 447 (M.D. N.C. 1979)
(quoting Brough v. United Steelworkers of Am., 437
F.2d 748, 749 (1st Cir. 1971) (internal citations omitted)).
In addition, “[a] suit brought under a state statute
does not arise under federal law merely because federal law
may invalidate the statute.” City of
Winston-Salem, 470 F.Supp. at 448 (citing Gully v.
First Nat'l Bank, 299 U.S. 109, 113 (1936)).
the Petitioners' Amended Petition for Partition does not
state a federal claim on its face, instead making their claim
“pursuant to N.C. Gen. Stat. § 46-1 et seq. and
N.C. Gen. Stat. § 46-22.” (ECF No. 1-1 at 2.) Nor
do Respondents' constitutional arguments form the basis
of Petitioners' petition. Consequently, this Court does not
have federal question jurisdiction which can serve as the
basis for removal by Respondents in this matter. Accordingly,
this case will be remanded to state court.
because this Court lacks subject matter jurisdiction, the
Court need not address Petitioners' argument that
Respondents' removal was untimely. Nor does
Respondents' motion entitled, “Motion to Amend
Notice of Removal Jurisdiction Pursuant [to] 28 U.S.C. §
1653, ” (ECF No. 16), which the Petitioners do not
oppose, (ECF No. 17), affect the outcome of this Court's
also request in their Motion to Remand that attorney's
fees be awarded pursuant to 28 U.S.C. § 1447(c).
(See ECF No. 8.) 28 U.S.C. § 1447(c) provides
that “[a]n order remanding the case may require payment
of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.” 28 U.S.C.
§ 1447(c). The Supreme Court has explained that
“absent unusual circumstances, attorney's fees
should not be awarded when the removing party has an
objectively reasonable basis for removal.” Martin
v. Franklin Capital Corp., 546 U.S. 132, 136 (2005).
“In applying this rule, district courts retain
discretion to consider whether unusual circumstances warrant
a departure from the rule in a given case, ” but a
court's “reasons for departing from the general
rule should be faithful to the purposes of awarding fees
under § 1447(c).” Id. at 141 (internal
quotation marks omitted). These purposes include
“deter[ring] removals sought for the purpose of
prolonging litigation and imposing costs on the opposing
party, while not undermining Congress' basic decision to
afford defendants a right to remove as a general matter, when
the statutory criteria are satisfied.” Id. at
140. The court need not find bad faith by the movant in order
to award fees under § 1447(c). In re Lowe, 102
F.3d 731, 733 n.2 (4th Cir. 1996).
Notice of Removal, in the present case, lacked “an
objectively reasonable basis for removal.”
Martin, 546 U.S. at 136. “[A] cursory
examination [of the petition] would have revealed a lack of
federal jurisdiction.” Lowe, 102 F.3d at 733
n.2 (internal quotation marks omitted). Although Respondents
are proceeding pro se in this matter, courts have
granted fees pursuant to § 1447(c) when a removal action
by a pro se party is based on a “fatally
flawed theory[, ] with no basis in law.” Sanders v.
Farina, 183 F.Supp.3d 762, 763, 765 (E.D. Va.),
aff'd, 669 Fed.Appx. 184 (4th Cir. 2016) (per
curiam). Further, the record reveals that Respondents were
already aware that their litigation strategy of
“persistent[ly] filing[ ] . . . motions and appeals
asserting essentially the same positions” could result
in negative consequences. (See ECF No. 9-5 at 3-4.)
In a January 3, 2018 Order, in which the Guilford County
Superior Court denied Petitioners' motion for sanctions
against Respondents, the state court “informed”
Respondents that “if their litigation tactics going
forward continue in the vein that they have used to date, the
authority to limit their access may well be exercised, and
sanctions could also be imposed.” (Id.)
had been warned about the consequences of their litigation
strategy, yet they continued to use such a strategy to
include filing in this Court a Notice of Removal that lacked
any “objectively reasonable basis, ”
Martin, 546 U.S. at 136. Accordingly, this Court
will award “just costs and any actual expenses,
including attorney fees, incurred as a result of the removal,
” 28 U.S.C. § 1447(c).
awarding attorney's fees to a party, the Fourth Circuit
has instructed courts to “determine[ ] a
‘lodestar' figure by multiplying the number of
reasonable hours expended times a reasonable rate.”
Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir.
1998) (quoting Daly v. Hill, 790 F.2d 1071, 1077
(4th Cir. 1986)); Williamsburg Plantation, Inc. v.
Bluegreen Corp., Civ.A. 4:06CV102, 2007 WL 445289, at
*1, *4 (E.D. Va. Feb. 5, 2007) (applying such calculation to
a § 1447(c) award of attorney's fees). The Fourth
Circuit has provided twelve factors for courts to consider
when awarding attorney's fees, including “the ...