Smith et al v. Department of Human Resources of the State of Alabama et al

Filing 96

ORDER directing as follows: 1) The 79 Motion to Dismiss or Remand Case or Reconsider Denial and for Leave to File Motion for Summary Judgment Based Upon Abstention is GRANTED to the extent that it seeks remand of this case to the Circuit Court for Montgomery County, AL, but DENIED in all other respects; 2) The above-styled lawsuit is REMANDED to the Circuit Court of Montgomery County, AL; 3) Plfs' 95 Request for the Award of Costs and Expenses pursuant to 28 USC 1447(c) is DENIED; 4) Al l pending motions other than those mentioned above are left for resolution by the Circuit Court of Montgomery County, AL after remand. All hearings in this matter, including the trial and the pretrial are CANCELLED; 5) The Clerk of the Court is DIRECTED to take all steps necessary to effect this remand and close this file. Signed by Hon. Chief Judge Mark E. Fuller on 8/27/2009. (furn: yg, hc, kg)(term: PTC for 10/09/2009; JT for 11/09/2009) (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R O G E R N. SMITH and SHERRY SMITH, P la in tif f s , v. D E P A R T M E N T OF HUMAN RESOURCES O F THE STATE OF ALABAMA, et al., Defendants. ) ) ) ) ) ) ) ) ) )

CASE NO. 2:07-cv-194-MEF (W O - Not for Publication)

ORDER
In February of 2007, Plaintiffs filed the Complaint in the Circuit Court of M o n tg o m e ry County, Alabama. (Doc. # 1-2, Compl.). On March 5, 2007, the DHR D e f e n d a n ts (namely the Alabama Department of Human Resources, Carolyn Bryson, Alicia S e x to n , Angela Sampson, Ben Jones, Jenny Story, Tarilton Benton, and Commissioner N a n c y Buckner) removed the action to this Court invoking its subject matter jurisdiction p u rs u a n t to 28 U.S.C. §§ 1331 and 1367. (Doc. # 1). In August of 2009, long after the Court im p o s e d deadline for the filing of dispositive motions, several of the DHR Defendants filed a variety of motions to dismiss and motions for summary judgment. Additionally, despite h a v in g been the parties to remove this action and invoke this Court's subject matter ju ris d ic tio n , the DHR Defendants filed a Motion to Dismiss or Remand Case or Reconsider D e n ia l and for Leave to File Motion for Summary Judgment Based Upon Abstention (Doc. # 79). By this motion, the DHR Defendants contend that this Court should dismiss or remand

this case on the grounds of lack of subject matter jurisdiction based upon the doctrine of a b s te n tio n . Plaintiffs oppose dismissal of this action, but agree that the case should be re m a n d e d . Furthermore, Plaintiffs represent that the defendants, other than the DHR D e f e n d a n ts , have no objection to the remand of this action. Plaintiffs further contend that th e Court should issue an order requiring the DHR Defendants to pay costs and expenses in c u rre d as a result of the removal pursuant to 28 U.S.C. § 1447(c). Thus, there is not a s in g le party to this action who contends that this Court has subject matter jurisdiction or who o p p o se s remand of this action. A c c o rd in g ly, it is hereby ORDERED as follows: 1. The Motion to Dismiss or Remand Case or Reconsider Denial and for Leave to File M o tio n for Summary Judgment Based Upon Abstention (Doc. # 79) is GRANTED to the e x t e n t that it seeks remand of this case to the Circuit Court for Montgomery County, A la b a m a , but DENIED in all other respects. 2 . The above-styled lawsuit is REMANDED to the Circuit Court of Montgomery C o u n ty, Alabama. 3. Plaintiffs' request for the award of costs and expenses pursuant to 28 U.S.C. § 1 4 4 7 (c ) (Doc. # 95) is DENIED. 4. All pending motions other than those mentioned above are left for resolution by th e Circuit Court of Montgomery County, Alabama after remand. All hearings in this matter, in c lu d in g the trial and the pretrial are CANCELLED.

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5. The Clerk of the Court is DIRECTED to take all steps necessary to effect this re m a n d and close this file. D o n e this the 27 th day of August 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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