PRESS et al v. AGC AVIATION, LLC et al, No. 1:2015cv00041 - Document 27 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 8/13/2015; that Plaintiffs' motion to remand (Docket Entry 5 ) be GRANTED IN PART to the extent this case should be REMANDE D to the General Court of Justice, Superior Court Division, in Guilford County, North Carolina for further proceedings pursuant to 18 U.S.C. § 1447(c), but DENIED IN PART as to Plaintiffs' requests for attorney's fees and costs. RECOMMENDED that Plaintiffs' motion to dismiss (Docket Entry 7 ) be DENIED without prejudice as moot for lack of subject matter jurisdiction. (Sheets, Jamie)
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PRESS et al v. AGC AVIATION, LLC et al Doc. 27 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CLIF'F'ORD PRESS, aùthotized teptesentative ) ^s of the fiz'cljonal ov/nets of that cettain aucnft ) beating tail number N132SL, et al., ) Plaintiffs, v AGC AVIATION, LLC, et al., Defendants ) ) ) ) ) ) ) ) 1,:1,5CY41 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is before the Court on Plaintiffs' motion to temand this action to state court pursuant to 28 U.S.C. $ 1aa7(c). (Docket Entry 5.) Defendants have filed a response in opposition to this motion. (Docket E.rtty 9.) Also before the Coutt is Plaintiffs'motion to dismiss.l (Docket Entry 7.) A hearing was held on June 29, 201,5. Thereafter, undersigned entered an Order requiring parties citizenship of both parties. (See the to submit additional bdefing tegatding the Text Otdet dated 06/30/15.) The parties submitted additional bdefing, and Defendants nov¡ concede diversity does not exist among the paties. (Jea Defs.' Srrpp. Resp., Docket Ent y 23.) As such, this case should be temanded for lack of subject matter jurisdiction. In re L.owe,102F.3d731,,734 (4th Cir. 1,996) (citing 28 U.S.C. S t \X/hen simultaneously faced with motions to dismiss and remand, "[the Court] should resolve the remand motion first so as to establish whether subject matter jurisdiction exists." Andrews u. Daøghtg4 No. 1:12-CV-441,,2013 WL 664564, at *4 (I\{.D.N.C. Feb. 22,2013) (citing In re Bear Nuer Drøinage Di:î.,267 F.2d 849,851 (10th Cir.1959). Because the undercþed recommends granting the motion to remand, "[t]he proper course is to deny the motion [to dismiss] without ptejudice for lack of subject matter jurisdiction." Id. at +15 (citation omitted). Dockets.Justia.com 1,aa7þ)) ("If at any time before final judgment it ppears that the disttict court lacks subject mtter jurisdiction, the case shall be remanded."). Plainuffs also request attotney's fees and costs associated with the motion to temand. (Jae Docket Entries 6,24 and 24-1,.) "An ordet remanding the case may tequire payment of iust costs and any acttal expenses, including attorney fees, incurred as a tesult of the removal." 28 U.S.C. $ 1aa7(c), The decision to award attorney's fees is within the disctetion of the Court. Georgetown Condominiøms Homeowners' Arr'fl, Inc. u. CmE. Apartments Corþ. of Foryth Cnfl. I\0, 3,387 F. Supp. 2d 51,2,515 (À,{.D.N.C. 2005). Bad faith is not technically required to award attorney's fees putsuant to 28 U.S.C. $ 1aa7(c). In n.2. Howevet, most courts addressing this issue have ITT Inda¡. Credit Co. u. Durango Cruthen, Inc., 832 F.2d 307 ,308 Inc. a. Protectiue Prodl Enterþrises, Nov. 18, 201,4); Phillips Parker u. engaged I I C., No. 1:13CV325, 201,3 L.owe,1.02F.3d ^t733 in a bad faith analysis. (4th Cu. WL u. BJ's ll/hole:ale C/øb, 1nc.,591 F'. S,rpp. re See 1,987); Parachn Aero 6070377 , , at x5 (À4.D.N.C. 2d 822,826 (E,.D. Va. 2008); Johnry Tart EnteQrises, 1nc.,104 F'. Srpp. 2d 581,585 (1\4.D.N.C. 1999). The United States Supteme Court has held that "[a]bsent unusual cfucumstances, courts may award attorneyrs fees undet reasonable basis $ 1,447 (c) only whete the removing p^fry lacked an objectively for seeking removal." Martìn u. Franklin Capital Corþ., 546 U.S. 732, 141, (200s). Plaintjffs atgue that Defendants' gtounds fot temoval wete flawed, and Defendants therefote lacked an objectively teasonable basis for removal in light of its subsequent concession that divetsity of citizenship never existed even between Defendants and the only alleged real party Plaintiff, Mt. Clifford Ptess. 2 (Jae Docket Entties 6 atd 24.) Defendants apparently telied upon the citizenship time of removal. remand (Jae of the parties set out in Plaintiffs Complaint at the Defs.' Resp. at2,Docket Entry 23.) Although the Court tecommends in this matter based on lack of divetsity, the undetsigned finds that Defendants' removal petition, while defective, does not appe r to have been filed in bad faith or with the intention of purposefully delaying the action. There is insufficient evidence to show that Defendants did not have "^n objectively teasonable basis fot removal." Martin,546 U.S. at 1,36. Thus, within its discretion, the Court recommends that Plaintiffs' request for costs, expenses and attorneys' fees be denied. For the reasons stated above, IT IS RECOMMENDED remand Q)ocket Entry 5) be GRANTED that Plaintiffs'motion to IN PART to the extent this case should be REMANDED to the General Court of Justice, Superiot Court Division, in Guilford County, North Carolt¡a DENIED IN PART as for futther ptoceedings pursuant to 18 U.S.C. $ 1447(c), but to Plaintìffs'requests fot attotney's fees and costs. IT IS FURTHER RECOMMENDED that Plaintiffs'motion to dismiss Etrtty 7) be DENIED without (Docket prejudice as moot fot lack of subject matter jurisdiction. oe Webstet States Magistrate Judge August 73,2015 Dutham, Notth Carohna J
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