United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. CAYER, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's
unopposed “Motion to Remand” (document #4) and
the parties' briefs and exhibits.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and this Motion is now
ripe for the Court's consideration.
filed this action in Union County Superior Court seeking to
recover damages for a broken tooth she suffered while
consuming food from Defendant's restaurant. She alleges
that the food contained a bone fragment. Plaintiff asserts
claims for negligence, breach of implied warranties, and
breach of express warranties. Her Complaint seeks damages in
excess of $25, 000 on each claim. Defendant timely removed
this matter alleging federal diversity subject matter
has moved to remand arguing that the $75, 000 amount in
controversy has not been met. Plaintiff also submitted an
Affidavit dated June 4, 2019, stating that she has never
demanded nor does she seek more than $30, 000 in damages.
Document #4-2. Plaintiff seeks attorney's fees for
improvident removal but has not briefed that issue.
Response, Defendant states that in reliance on
Plaintiff's Affidavit, it does not oppose remand.
Defendant opposes paying attorney's fees and costs.
unusual circumstances, courts may award attorney's fees
under 28 U.S.C. § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal.
Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). Conversely, when an objectively reasonable basis
exists, fees should be denied.” Id. While a
finding of bad faith is not necessary to support an award of
attorneys' fees under 28 U.S.C. § 1447(c),
“cases that award attorney's fees in this context
typically involve some indication of an improper
motive.” Chase Manhattan Mortgage Corp. v.
Phillips, No. 3:07-CV-00315-FDW, 2007 WL 2902993, at *1
(W.D. N.C. Oct. 2, 2007). Plaintiff did not stipulate to an
amount in controversy of less than $75, 000 until after
removal. An award of attorney's fees and costs is not
the undersigned respectfully recommends that Plaintiffs'
Motion to Remand be granted and that each party bear
its own attorney's fees and costs.
IS HEREBY ORDERED that all further proceedings in
this action, including all discovery, are
STAYED pending the District Judge's
ruling on this Memorandum and Recommendation and Order.
THE FOREGOING REASONS, the undersigned respectfully
recommends that Plaintiff's “Motion to
Remand” (document #4) be GRANTED and
this matter be REMANDED to Union County
NOTICE OF APPEAL RIGHTS
parties are hereby advised that pursuant to 28 U.S.C.
§636(b)(1)(c), written objections to the proposed
findings of fact and conclusions of law and the
recommendation contained in this Memorandum and
Recommendation must be filed within fourteen days after
service of same. Failure to file objections to this
Memorandum and Recommendation with the Court constitutes a
waiver of the right to de novo review by the District Judge.
Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th
Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198,
201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d
1363, 1365 (4th Cir. 1989). Moreover, failure to file timely
objections will also preclude the parties from raising such
objections on appeal. Thomas v. Arn, 474 U.S. 140,
147 (1985); Diamond, ...