McClain v. SSC Montgomery Cedar Crest Operating Company LLC, et al.

Filing 16

MEMORANDUM OPINION AND ORDER directing that the motion to remand (doc. no. 14 ) is granted and that, pursuant to 28 U.S.C.A. § 1447(c), this cause is remanded to the Circuit Court of Montgomery County, Alabama; further ORDERED that all other pending motions are left for resolution after remand; the clerk of the court is DIRECTED to take appropriate steps to effect the remand. Signed by Honorable Judge Myron H. Thompson on 12/9/14. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
KELVIN McCLAIN, as
Attorney in Fact for
Mervin McClain,

)
)
)
)
Plaintiff,
)
)
v.
)
)
SSC MONTGOMERY CEDAR CREST )
OPERATING COMPANY LLC, et )
al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:14cv1070-MHT
(WO)

OPINION AND ORDER
This lawsuit, which was removed to this court from
the Circuit Court of Montgomery County, Alabama based
on diversity of citizenship, see 28 U.S.C.A. §§ 1332
and 1441, is now before the court on defendant Comfort
Dental

of

Dothan

LLC’s

motion

to

remand.

Comfort

Dental asserts that it did not agree to removal of the
case from state court.
SSC

Montgomery

notice

of

Cedar

removal

§ 1446(b)(2)(A),

Therefore, it argues, defendant
Crest
was

which

Operating

invalid

requires

Company,

under

the

28

consent

LLC’s
U.S.C.

of

all

defendants who have been “properly joined and served”.
The

court

agrees

with

Comfort

Dental

that,

under

§ 1446(b)(2)(A), this case was improperly removed from
state court.

Therefore, the court lacks jurisdiction

to hear this case.
In
entered
problems

addition,
a

on

combined

in

the

November
opinion

7,

jurisdictional

this

court

order

and

2014,

that

noted

allegations

in

the

notice of removal and gave the removing party until
November

14,

2014,

to

amend

jurisdiction sufficiently.

the

notice

to

allege

In the order, the court

advised that failure to do so would result in the case
being remanded to state court.

No curative pleading

has been filed.
Finally, counsel for all parties have informed the
court that they all now agree to remand.

***
Accordingly, it is the ORDER, JUDGMENT, and DECREE
of the court that the motion to remand (doc. no. 14) is

2

granted and that, pursuant to 28 U.S.C.A. § 1447(c),
this

cause

is

remanded

to

the

Circuit

Court

of

Montgomery County, Alabama.
It

is

further

ORDERED

that

all

other

pending

motions are left for resolution after remand.
The

clerk

of

the

court

is

DIRECTED

to

appropriate steps to effect the remand.
This case is closed in this court.
DONE, this the 9th day of December, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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