United States District Court, E.D. North Carolina, Western Division
ROBERT EDWARD OEHMAN, JR. Trustee of the Robert Edward Oehman, Jr. Revocable Trust; CHARLOTTE TEICHMAN OEHMAN Trustee of the Charlotte Teichman Oehman Revocable Trust; CHARLES H. MUNN; JUDY C. MUNN; GRAHAM LYTHGOE; and KATHRYN LYTHGOE, Plaintiffs,
CONCERT MACGREGOR DOWNS, LLC, Defendant.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiffs' motion to
remand (DE 18), pursuant to 28 U.S.C. § 1447. Defendant
has responded in opposition, and the time for replies has
passed. In this posture the issues raised are ripe for
ruling. For the following reasons, plaintiffs' motion is
granted and this case is remanded to the Superior Court of
Wake County, North Carolina.
OF THE CASE
commenced this action in Superior Court of Wake County on May
21, 2018, asserting claims for trespass, nuisance,
negligence, and breach of covenants related to excessive
sedimentation of a lake abutting their properties and for
flooding of their respective properties caused by the
accumulated sediment in the lake (hereinafter, the
“lake”). Plaintiffs seek compensatory damages and
injunctive relief as discussed in further detail herein.
answered the complaint in state court on July 20, 2018, and
it filed requests for statement of monetary relief pertaining
to each of the plaintiffs on August 14, 2018. Each plaintiff
filed a statement of monetary relief on October 17, 2018.
Defendant filed a notice of removal in this court on October
25, 2018, on the basis of diversity jurisdiction, where
plaintiffs are citizens of North Carolina and defendant is a
Delaware company, and where plaintiffs specified damages in
excess of $75, 000.00 in their statements of monetary relief.
filed the instant motion for remand, on the basis that
defendant did not timely remove the matter pursuant to 28
U.S.C. § 1446. Plaintiffs argue that the amount in
controversy in excess of $75, 000.00 was plain from the face
of the complaint, and that defendant knew of the value of
injunctive relief at the time the complaint was filed. In
support of their motion, plaintiffs rely upon correspondence
between the parties and other documentation dating prior to
commencement of suit pertaining to proposals for remediation
of sediment in the lake. Plaintiffs also request attorneys
fees and costs pursuant to 28 U.S.C. § 1447(c).
responded in opposition to remand on December 17, 2018,
arguing that its notice of removal was timely because the
amount of controversy was not clear from the face of the
complaint, and that pre-suit communications cannot establish
amount in controversy.
meantime, the court entered case management order setting a
December 2, 2019, deadline for discovery in this case.
Standard of Review
case removed from state court, “[i]f at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c). “An untimely
removal is a defect in removal procedure, ” providing a
basis for remand under § 1447(c). Cades v. H & R
Block, Inc., 43 F.3d 869, 873 (4th Cir. 1994).
“[R]emoval statutes must be construed narrowly, and any
doubt about the propriety of removal should be resolved in
favor of remanding the case to state court.”
Barbour v. Int'l Union, 640 F.3d 599, 615 (4th
Cir. 2011) (applying rule in analyzing timeliness of
removal); see also Palisades Collections LLC v.
Shorts, 552 F.3d 327, 336 (4th Cir. 2008) (recognizing
the court's “duty to construe removal jurisdiction
strictly and resolve doubts in favor of remand”).
“[t]he notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based.” 28 U.S.C.
§ 1446(b). However, “if the case stated by the
initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it
may first be ascertained that the case is one which is or has
become removable.” Id. § 1446(b)(3)
where an initial pleading reveals a ground for removal will
the defendant be bound to file a notice of removal within 30
days.” Lovern v. Gen. Motors Corp., 121 F.3d
160, 162 (4th Cir. 1997). “Where, however, such details
are obscured or omitted, or indeed misstated, that
circumstance makes the case ‘stated by the initial
pleading' not removable, and the defendant will have 30
days from the revelation of grounds for removal in an amended
pleading, motion, order, or other paper to file its notice of
removal.” Id. The court need not
“inquire into the subjective knowledge of the
defendant, an inquiry that could degenerate into a mini-trial
regarding who knew what and when.” Id. Rather,
the court should “rely on the face of the initial
pleading and on the documents exchanged in the case by the
parties to determine when the defendant had notice of the
grounds for removal, requiring that those grounds be apparent
within the four corners of the initial pleading or subsequent
issue thus presented in this case is whether the initial
pleading in this case gave notice to defendant of an amount
in controversy in excess of $75, 000.00. If so, the notice of
removal filed more than 30 days thereafter is untimely. If
not, the notice of removal was timely filed ...