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Oehman v. Concert Macgregor Downs, LLC

United States District Court, E.D. North Carolina, Western Division

March 18, 2019

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,
v.
CONCERT MACGREGOR DOWNS, LLC, Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         Plaintiffs 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.

         Defendant 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.

         Plaintiffs 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).

         Defendant 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.

         In the meantime, the court entered case management order setting a December 2, 2019, deadline for discovery in this case.

         COURT'S DISCUSSION

         A. Standard of Review

         In any 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”).

         B. Analysis

         1. Untimely Removal

         Generally, “[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) (emphasis added).

         “[O]nly 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 paper.” Id.

         The 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 ...


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