-TEM Virginia Beach Resort & Conference Center Hotel Association Condominium v. Markel International Insurance Company Limited et al, No. 2:2011cv00437 - Document 18 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION AND REMAND ORDER that the court GRANTS the plaintiff'smotion to remand and DENIES the plaintiff's and the defendant'srequests for costs and attorneys' fees. This case is ORDEREDremanded to the Circuit Court for the City of Virginia Beach forfurther proceedings. The Clerk is DIRECTED to effect the remand. Signed by District Judge Rebecca Beach Smith and filed on 9/21/2011. (rsim)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division VIRGINIA BEACH RESORT CONFERENCE & CENTER HOTEL ASSOCIATION CONDOMINIUM d/b/a VIRGINIA BEACH RESORT HOTEL CONFERENCE & CENTER, Plaintiff, CIVIL ACTION NO. 2:llcv437 v. CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO CERTIFICATE NUMBER AS65009VAP00047, Defendant. MEMORANDUM OPINION AND REMAND This matter plaintiff, Virginia Association Court the for the City set and requests before Beach Condominium, reasons remand comes of DENIES for costs to Circuit April 15, Court both a seq., alleging and the the 2011, & on the motion Conference this Center action Virginia court to the and the Circuit Motion the the Hotel ("Motion") . GRANTS plaintiff's of For for defendant's fees. Procedural History the the declaratory court Beach, and attorneys' for requesting remand below, I. On Resort Virginia forth the ORDER plaintiff City of judgment breach of filed this Virginia under Va. contract by action Beach, Code §§ Markel in the Virginia, 8.01-184, et International Insurance Company, Underwriter's at According the to Lloyd's, Lloyd's, London, instant Subscribing to service of the state court Def.'s Br. in 15. of On July Non-Suit and International amending the 2011, the Other Insurance On Grounds Defense for Declaratory August this of 4, §§ On 15, plaintiff Brief Br. Supp. defendant of of court to on a defendant filed its an <3l 1, name filed a 2011. ECF Agreed of Specialty as Lloyd's, 15, non-suit properly well June Remand entered ordering diversity this court. case when in occurred to at Lines. AS65009VAP00047, its No. Order Markel Lines the and current Answer Counter ("Counterclaim"). 2011, contends Number Mot. as Specialty aka and Complaint Subsequently, Notice jurisdiction of on Removal pursuant to in 28 1441(b). defendant, in ("Answer"), 18, the Pi's the London, Underwriters and Atlantic complaint 2011, basis and before 2011, Relief, Judgment the 1332 that in-state 1 See on 27, the August currently July 2011, court U.S.C. agree July to state Company plaintiff's defendant. Opp'n of Atlantic complaint of For and Certificate Supp. 15, Lloyd's defendant, London See aka the the that Supp. Opp'n The became the of of court defendant Mot. to to to and its Motion defendant and diversity.1 waived the federal non-suited complete Mot. filed plaintiff removable state creating plaintiff both court dismissed However, right on an the to remove Def.'s Remand S[ 2, ECF No. 12; Remand SI 4, ECF No. 15. the case filing to for federal removal, order remanding costs and 28 § warranted. 29, No. fees the award the 14. filing to under such that 1-2, the its Motion. Def.'s On 31, with costs to the and Pi's award of of as to an its authority No. may of be 11. On Opposition its deny prior entry relief ECF court Opp'n 2011, II. to the plaintiff's attorneys' Mot. plaintiff to fees in Remand 1, filed a Reply The Motion is ripe for review.2 Analysis Waiver of Right to Removal The plaintiff argues Counterclaim in of constitutes Removal, remove to further responded Brief in Support of its Motion. A. the remand defendant August (1) (2) Remand asking for: court; defendant the asks Counterclaim state (3) to its securing in and Mot. Motion, and defending ECF matter 1447 (c); 2011, Plaintiff's Motion the Pi's by and therefore attorneys' U.S.C. August court the Remand case 1, jurisdiction fact, state to ECF is court, a federal No. that 12. otherwise timely removed the the prior waiver court. There proper, action.3 defendant's to the of the See filing Pi's is no filing of its defendant's Br. in dispute or that the The question to of Mot. diversity defendant, in is whether the 2 The court finds a hearing unnecessary to resolve the motion, 3 See supra note 1 and accompanying text. its Notice right Supp. that of prior filing to subsequent a below, the case, of it action is court that law, 177 v. "A [] 262, 264 waived (7th to Cir. the (quoting § very 2d Mut. due demonstrating this and, To City "may in 'clear a "a under waive and a factual Chicago, Westwood 879 its (citing (4th Cir. by taking court before Equip., waive." its waiver remove whether of is [has] 59 state Mac such there 2001) 57, to the v. to [] which Appeals W.Va. right make of find the federal waiver of F.2d Co. intent the circumstances." evaluate must from Although party's (N.D. the in within Court 935 Aqualon a a could action A defendant removal division 540 waive defendant's v. of days to Co., court thirty Circuit defensive the forth case the has limited Ins. 1998) . fatal set remove 1446(a),(b). 536, may is circumstances of and court Supp. Rothner 1989)). by in removal." right, as Cir. removal for U.S.C. Fourth defendant (4th its inquiry 59 F. substantial petitioning district district reasons to court notice remand only Donegal 1991)). some but a "the a court remand. for removal, state the the right state file 28 Fronk, Grubb to the recognized v. in "for of common sued basis its in For under warrants pending." is that waived case served statutory right at the counterclaim effort. FINDS defendant district no removal defendant accordingly, date voluntary court the A a 149 F.3d defendant and objective Grubb, F.2d 935 1402, 30-day unequivocal' has F.2d 1408 right intent to to remain in state court." Id. at 59 (quoting Rothner, 879 F.2d at 1416). The plaintiff Counterclaim on Notice of waiver Sood of v. (E.D. to Co. B. Clow can Baldwin Bryant (W.D. v. Va. waiver both of Sood 1979) defensive to remove. in because court Id. & at 240 held that a waiver v. Joe Baldwin could U.S. it Supp. to in the Tile say removal."). when result See Aqualon, 149 in a by 264. Heat of a & Light Similarly, cross- cf. 120, 125 filing held of See 1978); Circuit type the the remove. voluntary a invoking, F.R.D. what of voluntary been of "invoked 84 Fourth waiver F.3d at waiver and to 239 filing Va. has The discussing a cites Supp. (E.D. Co., Virginia its (1907)). right that filing constitutes the had of 373 its F. Merchant's filing of F. that 286 of plaintiff 308 action, 286, the Rainero crossclaim to same (quoting 204 451 Corp., defendant the Sons, Inc., right action the in ("Suffice or and the constituted also Co. the support, court Perdue, counterclaim In necessarily state Sood, constitute Elec. removal. to held it." claim 2011, prior court the has 4, days this removal to court eight filing Techniques counterclaim submitted this defendant's In 1969). of J. 2011, August to the Computer jurisdiction v. that 27, on right Advanced voluntary right July Removal its Va. argues to has of a be a cited substantial defendant's right The plaintiff asserts defensive pleading" that "long the waiver. 16. Pi's The between but case Br. law, determination of (characterizing substantive in and F.2d state at The and For the Other eligible in for of Order of "a Circuit" Remand reflect 149 proper in ^clear and 935 as at making is at a 264 laid out whether namely 59 No. "permissive the unequivocal' F.2d ECF F.3d inquiry Grubb, and distinction when Aqualon, a mandates 2-3, this cross-claims more Grubb, to not pleading," pleadings e.g., Circuit court." in on Answer and case the to submitted July Mot. 2011, that Counterclaim of to intent (quoting Other 27, state a Agreed 6, which the state Remand July in the such July 15, For on on stated and and later, support plaintiff's jurisdiction" Non-Suit days to removal Opp'n twelve this Relief, court personam Supp. Mot. not and The Fourth acceded state Fourth is to Rothner, 1416). facts defendant does See, demonstrated 879 the the of claim "offensive "offensive" defenses"). defendant in of counterclaims by counter an Supp. waiver. expressly remain law however, "defensive" "a instead standing Reply that M Relief, finding. Order 2011, and both made defendant court. 3-4, of Non-Suit entered the No. ECF "the Br. in 15; Ex. 1, 2011, the defendant court, but with no by case accepted Def.'s ECF The No. Agreed 1. Then, filed its accompanying Notice of filed in Removal. defendant's would not demonstrating (stating and a defendant permissive.4 the requisite F. filing clear Supp. of a in at intent' squarely within the The permissive and that citing 4 "A remand with other defendant the plaintiff out of any is Fourth counterclaim Rules does counterclaim the together accede any or only may, at cause all court. that constitute in an Cf. the jointly, the of Virginia. a the state the Westwood, that the 'clear and and "falls filing automatic option, or complaint." a situation," and defendant of waiver, Aqualon, Defendant's whether and in Grubb."). Grubb below. that in to "extreme in defendant's mentioned Supreme Court Sood demonstrates recognized opinions action voluntary the jurisdiction" discussed that of only reflect in state however, plaintiffs transaction of the of was well-established appropriate cases rules holdings state 374-75 filing equates not Circuit's court availment situation' does by and action" at court to argue, removal prior is state Supp. Counterclaim ("[I]t in defensive Counterclaim iji 'extreme defendant its remain 541 to its separately compulsory, F. Virginia voluntary to was 451 waive court's filing cross-claim unequivocal not then over a week later. "substantial of this was answer Baldwin, filing intent 2d an would defendant's jurisdiction 2011, However, Given Removal 4, a See defendant's Baldwin, 177 of of constitute pleadings). the court's filing waiver. that responsive that Notice federal court on August The alone The plead has not Rule first as a against it grows 3:9(a), assertion waiver is correct; determination defendant in properly distinguishable in Grubb, remand cited by the Grubb, the determination when the case defendant could had participation measure the than Fourth affirm" a have been the dismissal remain Other cases the of the so facts the it of other a the cannot this actions case taken by cases denying district court's the had waived of it finding less permissive by would the denied Id. waiver "extreme hearing the at have been if 59. the Such defensive and compelled court and The dismissal counterclaim, "clear at the substantial district a summary 58-59. Id. to a procedurally until a "likely at docket. the court. requisite F.2d right in during case demonstrated state which a party 935 the constitutes had a its participate unclear removed in not to of was entered noted in affirmed Grubb, it filing behavior to intent defensive and continued even clearly contrary constituting Circuit defendant noted Circuit defendant's intent" the after court officially Fourth removable. district the that courts, However, from stated objective state Aqualon, defendant hearing in has defendant. that the Circuit the automatic. defendants judgment on termed be the remove turns proceedings clearly In Fourth its are made the that yet to the unequivocal 60. under circumstances situation" are not equally easily distinguished. removed state the case court, prior thus no before petitioning. recent case Store, Inc., Va. May in 9, No. conduct the the The a v. state (citing 809; the further which to the on seem Old Country 49186 (E.D. Country Store Old case an apt to in removal, the this also Inc., this 773 the court stated waiver and see cites is that then Abraham, same F. Supp. issue 2011 if U.S. of that defendants remove language). court's the an may While this Estate Va. 1991) regards LEXIS the are to a concern waters in unfavorable. 49186, concern the in underlying results Dist. for of Id. (E.D. "test from merits rationale in Id. motions description waiver in court," case. ultimate 806 this issue state CBOCS's the to characterized preserve distinguished would another prior actions determination In LEXIS court taken remanded addressing The court" at measure defendant's Texaco, J.) , demurrer. supporting the The place 264. Barrel actions took in Barrel Dist. Cracker defensive at Cracker U.S. pleadings actually F.3d v. 2011 Court defensive actually Counterclaim seeking declaratory judgment. defendant Krasnow 149 dismiss. final controversy," (Cacheris, Id. to court "seeking The of this inapposite defendant's to protective that *16. ones several defendant measures Abraham J.) , the any Aqualon, court, motion "a event again at as filing defensive (Hudson, filed a Aqualon, 3:llcvl82, 2011) including to See this ("CBOCS") In is at *16-17 certainly well-founded defendant and alone, Dist. remain in the court The by determination the signify a court." reasoning, applying this for The the court also facts McWilliams: and (internal after ruling on a a in this an marks defendant's 806. 10 was the of right sense asserts rationale remain in in some court will in state Unlike a a removal. that, state and result. to in case court supports to the and remand this identical to case. federal sought further its to case omitted). filing as U.S. J.), this which case intent court's answer this "It makes unequivocal in claim removal, waived demurrer, factor 2011 "her the counterclaim quotation this it its (Cacheris, waiver McWilliams in a of this subsequently to of that filed necessitates defendant file of 2011) defendant in the against I:llcv519, removing right the to is analyzing that clear example, Supp. its choice Id. subsequent *5. absence 7, plaintiff at claim demonstration No. July before the cases,5 remand. stated court cases, of the assertion Va. state waiver and The defendant of employed 5 For the certain clearer Broderick, rationale basis However, the v. *2-3. McWilliams, much remaining at Id. to exclude (E.D. proper in responding court. not Id. denied. F. does 73101 counterclaim in a state McWilliams the dispositive claim, in McWilliams, court." be beyond defendant's LEXIS provides As own therefore, decision on may went its to The In here filed intent and state in the court's Krasnow, 773 present case, intent, as the the facts in defendant McWilliams filed after filing her counterclaim. Under such be circumstances, hard-pressed part contrast, August 4, here 2011, Counterclaim in aware suit a on the July strict 15, determination of in that defendant's and Sood availing demonstrated court, eight and days a clear that right to the later, determination. for and is removal by and its this minutes" original). finding would intent not wholly of in on the the subsequent without not any sufficient proceedings court on defendant. 11 the to the becoming the of a of remain basis of of similar FINDS in state Removal factors or such a dissuade the the jurisdiction Notice REMANDS that counterclaim countervailing to non of court court's to and imply light voluntary intent other the intend in a filing after dispositive state unequivocal Removal Answer following others, filing of its longer removal among Notice filing still does is actions and filed for Westwood, the factual Nonetheless, Accordingly, further "_90 in unequivocal after court test itself justification, court The waiver. holdings the days eligibility numerical and mere (emphasis making a defendant court, 2011. *4 a demonstrate any direction. the state not removal at clear eight case's of in Id. court determine of the defendant In on to a for did case waiver to state of the B. Award of Costs In addition requests Motion, costs as to and does § fees, 1447 (c) . reasonableness Corp., 546 U.S. courts may seeking basis removal.6 voluntary district counterclaim, court addressed decision directly in Absent controlling case unreasonable. See supra reasonable to See note this § on the Capital was right Fourth Circuit to Sood the cannot Muro 1. 12 be and a has itself. This on Pharm., Inc., a other not been court's its facts, removal. defendant's to for after few Circuit, said the eligible for the defendant's precedent, for both remove distinguishable the reasonable Here, case in where basis objectively the the the grounds reasonable an addressed although v. Franklin denied."). Fourth Kluksdahl v. turn only of court should U.S.C. 1447(c) that the 28 under be within McWilliams, also provides instant by including removal." fees case may circumstances, when while expenses, the unusual waiver opinions the also with remanding the Martin agree of association objectively should plaintiff ("Absent Conversely, issue of awarding fees an defendant The for (2005) lacked fees and result removal." 141 in and any actual a attorney's removal. plaintiff the the 132, party exists, as the "An order costs standard award removing just of remand, fees defendant. incurred "The Fees requesting attorneys' the require payment of attorney and Attorneys' removal be of objectively 88 6 F. Supp. 535, 540 and fees and not (E.D. for the the is 1995) the of Circuit, a Given request when issued request only for court's decision costs and for district decisions request the for plaintiff's case had plaintiff's DENIED. defendant's (denying removal Fourth Consequently, fees Va. on costs to attorneys' courts, the and costs issue). attorneys' remand, fees is the also DENIED. Ill. For motion the to requests foregoing remand for reasons, and DENIES costs and remanded to the Circuit further proceedings. and to Order forward to all a IS the the Court court GRANTS plaintiff's attorneys' fees. and This the plaintiff's the defendant's case parties and of this to Beach, is ORDERED for the City of Virginia Beach The Clerk is DIRECTED to effect copy the City of Virginia IT Conclusion the Memorandum Clerk of Opinion the Circuit for the remand and Remand Court Virginia. SO ORDERED. /s/ Rebecca Beach Smith United States District Judge REBECCA UNITED Norfolk, September Virginia Q\ , 2011 13 BEACH STATES SMITH DISTRICT JUDGE for
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