CLAYTON, et al v. SUNTRUST BANK, et al

Filing 66

ORDER signed by JUDGE JAMES A. BEATY, JR on 02/11/2013, that Defendant SunTrust Bank's Motion to Remand and Renewed Motion to Remand [Doc. # 8 , # 35 ] are GRANTED, and this action is REMANDED to Alamance County, North Carolina, Superior Court. The Clerk of Court is directed to send a certified copy of this Order to the Alamance County Superior Court Clerk. FURTHER that Defendant SunTrust Bank's Motion to Dismiss [Doc. # 7 ] and Renewed Motion to Dismiss [Doc. # 33 ] are DENIED AS MOOT. FURTHER that Plaintiffs' Motion for Preliminary Injunction [Doc. # 1 ], Motion for Summary Judgment [Doc. # 22 ], Motion to Vacate [Doc. # 29 ], Motion for Cease and Desist Order [Doc. # 44 ], Request for Discovery [Doc. # 45 ], and Motion for Entry of Default [Doc. # 62 ] are DENIED WITHOUT PREJUDICE in light of the remand. (Taylor, Abby)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA GAIL CLAYTON and THOMAS CLAYTON, Plaintiffs, v. SUNTRUST BANK and ALAN E. FERGUSON, Defendants. ) ) ) ) ) ) ) ) ) ) ) 1:11CV818 ORDER On September 12, 2012, the United States Magistrate Judge’s Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636(b)(1). Plaintiffs filed objections [Doc. #43] to the Recommendation within the time limit prescribed by Section 636, Defendants responded [Doc. #46], and Plaintiff replied to the response [Doc. #47]. The Court has reviewed Plaintiffs’ objections de novo, as well as Plaintiff’s additional subsequent filings, and finds they do not change the substance of the United States Magistrate Judge’s Recommendation [Doc. #41], which is affirmed and adopted.1 Therefore, the Motion to Remand will be granted, and Plaintiffs’ remaining pending motions, including the additional motions filed after the Recommendation was entered, will be denied in light of the remand. 1 To the extent Plaintiffs Gail Clayton and Thomas Clayton now attempt to assert diversity jurisdiction in this case, the Court notes that the Claytons are defendants in the state court action that they are seeking to remove, and they are citizens of North Carolina. Therefore, under 28 U.S.C. § 1441(b), they may not properly seek removal based on diversity, as noted by Suntrust Bank in its Motion to Remand [Doc. #14 at 7]. IT IS THEREFORE ORDERED that Defendant SunTrust Bank’s Motion to Remand and Renewed Motion to Remand [Doc. #8, #35] are GRANTED, and this action is REMANDED to Alamance County, North Carolina, Superior Court. The Clerk of Court is directed to send a certified copy of this Order to the Alamance County Superior Court Clerk. IT IS FURTHER ORDERED that Defendant SunTrust Bank’s Motion to Dismiss [Doc. #7] and Renewed Motion to Dismiss [Doc. #33] are DENIED AS MOOT. IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction [Doc. #1], Motion for Summary Judgment [Doc. #22], Motion to Vacate [Doc. #29], Motion for Cease and Desist Order [Doc. #44], Request for Discovery [Doc. #45], and Motion for Entry of Default [Doc. #62] are DENIED WITHOUT PREJUDICE in light of the remand. This, the 11th day of February, 2013. United States District Judge 2