United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge.
MATTER comes before the Court on Plaintiff’s
Motion to Remand, (Doc. No. 5); the Magistrate Judge’s
Memorandum and Recommendation (“M&R”), (Doc.
No. 9); Plaintiff’s Objections to the M&R, (Doc.
No. 12); and Defendant’s Response to Plaintiff’s
Objections, (Doc. No. 14).
31, 2018, Plaintiff Huber Technology, Inc.
(“Plaintiff”) filed a Complaint against Defendant
Gowing Contractors Ltd. (“Defendant”) in the
Superior Court of Mecklenburg County, North Carolina. (Doc.
No. 1-1.) On September 27, 2018, Defendant removed the action
to the United States District Court for the Western District
of North Carolina on the basis of diversity jurisdiction
under 28 U.S.C. § 1332(a)(2). (Doc. No. 1.) The parties
conducted an Initial Attorney’s Conference
(“IAC”) on October 18, 2018 and filed their
Certificate of Initial Attorney’s Conference
(“CIAC”) on October 25, 2018. (Doc. No. 3.)
October 29, 2018, Plaintiff filed its Motion to Remand,
arguing that Defendant’s removal was untimely. (Doc.
No. 5.) In the M&R, the Magistrate Judge recommended that
the Court deny Plaintiff’s motion. (Doc. No. 9, at 4.)
The Magistrate Judge concluded that Plaintiff had waived its
right to seek remand because the motion was untimely,
Plaintiff participated in the IAC and CIAC without raising
its demand for remand, and Plaintiff failed to comply with
Local Rule 7.1(e). (Doc. No. 9, at 3.)
STANDARD OF REVIEW
district court may assign dispositive pretrial matters,
including motions to dismiss, to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A)–(B). The Federal
Magistrate Act 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.” Id. at §
636(b)(1)(C); Camby v. Davis, 718 F.2d 198, 199 (4th
makes two objections to the M&R: (1) the M&R
incorrectly found that Plaintiff’s Motion to Remand was
untimely filed, and (2) the M&R erred in concluding that
Plaintiff waived its right to seek remand. (Doc. No. 12, at
2.) After a de novo review of the record, the Court agrees.
Plaintiff timely filed its Motion to Remand.
motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a).” 28 U.S.C. § 1447(c). Under Rule
6 of the Federal Rules of Civil Procedure, in computing a
time period under a statute that does not specify a method of
computing time, the court is to “include the last day
of the period, but if the last day is a Saturday, Sunday, or
legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal
holiday.” Fed.R.Civ.P. 6(a)(1)(C). Section 1447 does
not specify a method of computing time and, thus, Rule 6
applies when computing the thirty-day time period thereunder
for filing a motion to remand.
Defendant filed its Notice of Removal on September 27, 2018.
(Doc. No. 1.) Accordingly, Plaintiff was required to file a
motion to remand on or before Saturday, October 27, 2018.
See 28 U.S.C. § 1447(c). Applying Rule 6,
Plaintiff’s deadline for filing a motion to remand
continued to run until the end of the day on Monday, October
29, 2018. Fed.R.Civ.P. 6(a)(1)(C). Plaintiff filed its Motion
to Remand on October 29, 2018 and, thus, the motion was
Plaintiff did not waive its right to seek remand.
argues that Plaintiff’s participation in the IAC and
CIAC constituted a waiver of Plaintiff’s right to seek
remand on the basis that ...