United States District Court, W.D. North Carolina, Charlotte Division
KIM ROSAS et. al., Plaintiffs,
AMANDA HEARN et. al., Defendants.
MEMORANDUM AND RECOMMENDATION AND ORDER
S. CAYER JUDGE.
MATTER is before the Court on “Plaintiffs'
Motion to Remand” (document #3) and
“Defendants' Motion to Dismiss …”
(document #7), as well as the parties' briefs and
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and these Motions are
ripe for disposition.
their “Motion for Extension of Time to Answer
…” (document #13), Defendants represent that
they agreed to withdraw their Motion to Dismiss in exchange
for Plaintiffs' consent to the extension of time. On
December 13, 2019, the Court granted the extension.
Accordingly, “Defendants' Motion to Dismiss
…” (document #7) is administratively denied
as moot without prejudice.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Plaintiffs' Motion to Remand be denied as
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
October 28, 2019, Plaintiffs filed their verified Complaint
in Mecklenburg County Superior Court. Plaintiffs are North
Carolina citizens and Defendants are citizens of Ohio.
Plaintiffs assert eleven claims for relief. Six of the claims
seek injunctive and declaratory relief concerning an alleged
partnership, including an accounting, dissolution and winding
up. In their claims for breach of partnership agreement,
breach of fiduciary duty, conversion, and constructive fraud,
Plaintiffs allege that they are entitled to recover “in
excess of $25, 000” for each claim. Document #1-3.
Plaintiffs assert a claim for unfair and deceptive trade
practices seeking treble damages and attorneys' fees.
Plaintiffs also seek punitive damages.
November 5, 2019, Defendants removed the state court action
to the United States District Court for the Western District
of North Carolina alleging diversity subject matter
November 6, 2019, Plaintiffs filed their Motion to Remand
arguing that “Defendants' removal cannot be based
solely upon the boilerplate jurisdictional prayer …
for damages ‘in excess of $25, 000.'”
Plaintiffs' “Memorandum …” at 2
existence of subject matter jurisdiction is a threshold
issue. When a removed case lacks a proper basis for subject
matter jurisdiction, it must be remanded. Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 96 (1998);
Jones v. American Postal Workers Union, 192 F.3d
417, 422 (4th Cir. 1999); Evans v. B.F. Perkins Co.,
166 F.3d 642, 647 (4th Cir. 1999). The requirements are so
absolute that “[n]o party need assert [a lack of
subject matter jurisdiction]. No. party can waive the defect,
or consent to jurisdiction. No. court can ignore the defect;
rather a court, noticing the defect, must raise the matter on
its own.” Wisconsin Dept. of Corrections v.
Schacht, 524 U.S. 381, 389 (1998) (internal citations
omitted). See also Ashcroft v. Iqbal, 129 S.Ct.
1937, 1945 (2009) (“Subject-matter jurisdiction cannot
be forfeited or waived and should be considered when fairly
in doubt”) (citing Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006); United States v. Cotton,
535 U.S. 625, 630 (2002)); Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
party asserting federal jurisdiction has the burden of
proving that subject matter jurisdiction exists. See,
e.g., Lovern v. Edwards, 190 F.3d 648, 654 (4th
Cir. 1999); Richmond, Fredericksburg & Potomac R. Co.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991);
Norfolk Southern Ry. Co. v. Energy Dev. Corp., 312
F.Supp.2d 833, 835 (S.D.W.Va. 2004). Any doubts about removal
must be resolved in favor of remand. Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(“Because removal jurisdiction raises significant
federalism concerns, [courts] must strictly construe removal
jurisdiction. If federal jurisdiction is doubtful, a remand
is necessary”) (citations omitted); Griffin v.
Holmes, 843 F.Supp. 81, 84 (E.D. N.C. 1993); Storr
Office Supply v. Radar Business Systems, 832 F.Supp.
154, 156 (E.D. N.C. 1993).
defendant may remove a case to federal district court if the
court has original jurisdiction. 28 U.S.C. § 1441;
Dixon v. Coburg Dairy, 369 F.3d 811, 816 (4th Cir.
2004). A case falls within a district court's diversity
jurisdiction only if diversity of citizenship among the
parties is complete and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a); Carden v.
Arkoma Associates, 494 U.S. 185, 187 (1990);
Strawbridge v. Curtiss, 3 Cranch 267 (1806). It is
undisputed that there is complete diversity of citizenship
between Plaintiffs and Defendants.
jurisdiction is predicated upon diversity of citizenship and
the complaint does not allege a specific amount of damages
but instead seeks “in excess” of a certain dollar
amount, the party asserting jurisdiction must prove by a
preponderance of the evidence that the amount in controversy
requirement has been met. 28 U.S.C. §1446(c)(2)(A);
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