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Huber Technology, Inc. v. Gowing Contractors Ltd.

United States District Court, W.D. North Carolina, Charlotte Division

September 18, 2019

HUBER TECHNOLOGY, INC., Plaintiff,
v.
GOWING CONTRACTORS LTD., Defendant.

          ORDER

          Robert J. Conrad, Jr., United States District Judge.

         THIS 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).

         I. BACKGROUND

         On May 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.)

         On 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.)

         II. STANDARD OF REVIEW

         A 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 Cir. 1983).

         III. DISCUSSION

         Plaintiff 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.

         A. Plaintiff timely filed its Motion to Remand.

         “A 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.

         Here, 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 timely.

         B. Plaintiff did not waive its right to seek remand.

         Defendant argues that Plaintiff’s participation in the IAC and CIAC constituted a waiver of Plaintiff’s right to seek remand on the basis that ...


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