Bailey v. Spangler, No. 3:2014cv00556 - Document 22 (E.D. Va. 2015)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/05/2015. (tjoh, )

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Bailey v. Spangler Doc. 22 p 'j OCT - 5 • IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK. U S 1'iSTHiC. RlCHr-'GIvD MALVA BAILEY, Plaintiff, V. Civil Action No. CONRAD SPANGLER, 3:14cv556 DIRECTOR OF THE VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY, Defendant. MEMORANDUM OPINION This matter is REMAND AND COSTS, § 1447(C) before the court on PLAINTIFF'S INCLUDING ATTORNEY FEES, (Docket No. 20). MOTION FOR PURSUANT TO 28 U.S.C. For the reasons set forth below, the motion will be granted in part and denied in part. BACKGROUND I. Factual Background On May severing 5, the 1887 George mineral estate conveying ''all the coal, iron, ores and and certain minerals tract of lying land" (Docket No. 5-1, 5-2) . executed deed whereby a to W. Sutherland under his executed surface petroleum oil and being in the Virginia upon and Coal and a estate [gas] under Coke deed and and other all that Company. On May 10, 1983, Malva Bailey (''Bailey") she purchased the surface estate once Dockets.Justia.com owned by the Sutherlands. (Docket No. 3-1). discussed the ownership of the mine voids, Neither deed which are spaces on passageways that resulted from the mining of the sub-surface of coal by the owner of the mineral estate. The Complaint 2012, Conrad Spangler Commonwealth of Energy, Company, LLC, 13720 alleged [mining AB." violation permits] mining §§ 42.1-181, constituted Department (Complaint, those an the Fifth and that No. were Mines, Minerals Dickenson-Russell 1-3 at issued taking of Fourteenth 1 1). Coal Bailey pursuant private to Va. (Docket No. in fact, property Amendments 1-3 to in the 2-3) . after conducting extensive discovery. Dickenson-Russell had not, and She claimed that these actions Constitution of the United States. However, 9, under permit numbers 14632AB permits 55-154.2. of to Docket unconstitutional of some point after April who was the Director of the [''Dickenson-Russell"] that Code Ann. at C'Spangler") , Virginia's ^'issued and alleged that, Bailey found trespassed on her land or attempted to make use of her mine voids pursuant to the above permits. (Docket agreed that Va. retroactively (Docket No. 20, Code Ann. to 12, No. reach at 1). SISI §§ 10-12). 42.1-181, severance Thus, void rights has been undisrupted. 55.154-2 deeds Bailey's Id. Furthermore, Spangler did not such enjoyment as of apply Bailey's. her mine II. Procedural History Bailey filed a Complaint in the Circuit Court of the City of Richmond. (Docket No. unconstitutional takings the 1-3). Fourteenth Fifth and Constitution and VIRGINIAL ACTS reenact §§ claim pursuant OF ASSEMBLY and a - Complaint to Amendments requested 45.10181 The 42 of 2012 of the unconstitutional on its face and as applied. Spangler filed DEFENDANT PLAINTIFF'S COMPLAINT. briefed the motion, it of both motions. Therefore, Supreme Court and issued its Thereafter, the was parties and 695, amend and Virginia at SISI 1, 3. (Docket No. MOTION TO is 1) . DISMISS After the parties fully obvious central that to the the correct resolution of this Court certified two questions to Virginia opinion 2). became 55-154.2 of SPANGLER'S (Docket No. interpretation the § CONRAD of Id. Spangler removed the case to this Court. to an States CHAPTER An Act Code §1983 United that SESSION, 55-154.2 U.S.C. the declaration alleged on which May were 5, accepted 2015. directed the certification (Docket to, and No. did 10). submit, positions on the status of the motion in light of the decision of the Supreme Court of Virginia. (Docket Nos. 11, 12, 13). Based on the resolution of the two certified questions by the Supreme Court Opinion on June (Docket No. 4, 14). of Virginia, 2015, Since this Court issued denying Spangler's Motion that time, however, it a Memorandum to has Dismiss. become apparent taking, that Bailey has not suffered an and that Dickenson-Russell has not, in fact, on her land, and consequently. Bailey lacks her claims. (Docket No. 10-12). a Motion Seeking under 28 U.S.C. 20, Remand and § 1447(c). Costs, unconstitutional trespassed standing to pursue Therefore, Bailey filed Including Attorneys' (Docket No. Fees, 20). DISCUSSION The parties agree that the case should be remanded because Bailey does not have standing, have subject matter question that and therefore this Court does not jurisdiction in this remains to be resolved entitled to costs and attorneys' For the reasons set forth case. is Thus, whether Bailey fees under 28 U.S.C. below, the only is § 1447(c). the Court holds that 'Ma]n order remanding she is not. I. 28 U.S.C. Under may 1447(c) U.S.C. require including The fees should § payment attorney Supreme unusual § 28 Court turn reasonable has on only where basis of just fees, circumstances, 1447(c) 1447(c), for costs incurred as stated the a may removing seeking any result ^'the reasonableness courts the that and expenses, of removal." the for awarding removal. Absent award attorneys' party lacked removal. case actual standard of the an fees under objectively Conversely, when an objectively Martin v. reasonable Franklin to deter exists, Capital When applying this desire basis test, Corp., 546 district removals sought fees U.S. courts for should be 132, 141 Congress' right to remove as a of costs and fees basic the decision purpose to of afford general matter[.]" under this such an award is just." Id. (2005). ''should recognize the prolonging litigation and imposing costs on the opposing party, undermining denied." Id. while not defendants at 140. a An award section should be made ''only when at 138. A. Objectively Reasonable Basis for Removal At the time reasonable basis not entitled claim, as has federal for to 42 law. that her 1983. Under jurisdiction as the court." to she it is could not is clear based on an fees. 28 Bailey's federal law, U.S.C. § this claims court 28 U.S.C. 1331, arising has under removal "originally could have § (1987). 1441(a); face "violation Caterpillar Bailey does not try have originally from the single under hear action objectively and therefore Bailey is district a here, had solely 482 U.S. 385, 392 court; claim § arose Moreover, Inc. V. Williams, federal attorneys' pled, been filed in federal to contend that and U.S.C. original Spangler removing the case, costs jurisdiction where, in removal, initially specifically, Court of of filed of her the this claim Complaint Fifth and Fourteenth Amendments (Docket No. 1-3, to law federal to SI 2) . on Constitution Thus, the face of the United States." based on the explicit references of Bailey's complaint, Spangler's removal was objectively reasonable. Bailey argues that, because Spangler filed a motion to dismiss based on lack of standing immediately after removing the case to this Court, removal. the (Docket removal in Ins. SI to ask 2014 Homes a was It WL 2008 both court See, (D. WL reasonable basis for argument by common to 8, objectively issue Coleman Apr. 23, even though plaintiffs lacked standing, not entitled to attorneys' fees under § 1447(c) of Lincoln Nat. 2014); (W.D.N.C. entirely the v. because question an and Higdon Dec. 1848653 is resolve e.g., Md. fails federal jurisdictional, is federal 6951290 This justified albeit removal. Corp., (holding that 16). case Standing, following Co., Beazer 20, proposition. reasonable standing No. this jurisdiction. different he could not have had a v. 2008) they were because removal was not objectively unreasonable). In other cases and attorneys' plaintiff's in this fees complaint federal jurisdiction. Corp., 2010 (holding that WL circuit where courts under that See, 3603784, attorneys' § 1447 (c) , there e.g., at fees was it no have awarded costs was clear colorable Int'l Legware Grp. *3-4 (E.D.N.C. Sept. were justified under from the basis for v. Americal 8, § 2010) 1447(c) because the well-pleaded state law") ; complaint Beaufort Cty. School Dist. 519 F. Supp. 2d 609, to plaintiffs contract Gibson (holding § under case v. had that of a for is F. was best, 668 provides See, e.g., (E.D. Va. Fourteenth an Amendments), and presence Va. 1993) fees attorneys' to of diversity) •, (S.D.W. have under well-settled of a declined objectively Inc. Here, (namely, of breach federal to award because even the possibility Fastmetrix, solely under federal law and the in lack 349 to courts 2013). fees ''contrary fees under this section, question Co., defendant entitled was upon Ins. 347, even where at United Nat. obvious Supp. removal dubious removal. 2d 822 exclusively (awarding attorneys' where despite Conversely, federal Supp. 1447(c) plaintiff authority"). attorneys' § because V. (D.S.C. 2007) removed Tinkey, 1447 (c) question 617 ''relie[d] v. the 42 U.S.C. reasonable ITT Corp., claims basis 924 F. clearly arose § 1983 and the Fifth therefore, Spangler's removal was objectively reasonable. B. Unusual Circiuastances Second, Bailey circumstances" "Mr. warranting Spangler interpretation argues took of the an an 1981 that this award of extreme law that case presents attorneys' position would fees ''unusual because regarding have deprived the Ms. Bailey and thousands of other property owners of their rights." (Docket No. Spangler 20, points precedent. Case No. nearly SI 17) . out, This argument is also unavailing. his See Horton v. CLll-65) so position or supported Knox Creek Coal Corp. (Docket No. ^'extreme" was 5-3). ''unusual'' by Virginia (Russell Cty. Spangler's argument was not as to constitute ''prolonging litigation and imposing costs on the opposing party." 540 U.S. at attorneys' 140. Therefore, As Bailey's request for Martin, costs and fees will be denied. CONCLUSION For AND the COSTS, 1447(C) motion foregoing INCLUDING (Docket for No. remand. reasons, ATTORNEY 20) will PLAINTIFF'S FEES, be Accordingly, PURSUANT granted the case with is the Circuit Court for the City of Richmond. for costs and attorneys' It is so MOTION TO FOR REMAND 28 U.S.C. respect to hereby REMANDED to Plaintiff's request fees will be denied. ORDERED. /s/ Robert E. Payne Ml- Senior United States District Judge Richmond, Date: Virginia October 5, 2015 the

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