Kingdom Insurance Group LLC et al

Filing 12

ORDER directing defendants to file recast motions to dismiss no later than 9/20/2010; directing Clerk's office to terminate 8 Motion to Dismiss as moot; directing any other motions for this Court be recast by 9/20/2010; directing plaintiffs to file their Motion for Reconsideration no later than 9/20/2010. Ordered by Judge Hugh Lawson on 9/13/2010. (nbp)

Kingdom Insurance Group LLC et al

Doc. 12

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V A L D O S T A DIVISION K IN G D O M INSURANCE GROUP, L .L .C ., et al., : : : P la in t if f s , : : v. : : C U T L E R AND ASSOCIATES, INC., : e t al., : : : D e fe n d a n ts . _______________________________ : ORDER T h is case has a complicated procedural history, which seems to have caused c o n fu s io n amongst the parties and the Court as to the status of certain motions. T h is case originated in superior court. The Defendants removed the case to th is Court asserting diversity jurisdiction. The case was titled, Kingdom Insurance G ro u p , LLC, et al. v. Cutler and Associates, et al., 7:09-cv-117. Motions to dismiss a n d disqualify counsel were filed by the Defendants after they removed the case. Later, this Court remanded the case back to superior court finding the re q u ire m e n ts for diversity jurisdiction were unsatisfied. The Court did not rule on the m o tio n s to dismiss or on the motion to disqualify. B a c k in superior court, the Plaintiffs filed a motion for default judgment, which th e superior court denied. Plaintiffs filed a motion to reconsider the order denying d e fa u lt judgment, but the Defendants removed the case again while the motion to

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reconsider was pending.1 The superior court, to this Court's knowledge, did not m a k e a ruling on the motions to dismiss. Once the case was removed for the second time, this Court assigned the c a s e with a case number. The case number is 7:10-cv-85. When the case was re m o v e d for the first time, it was assigned case number 7:09-cv-117. A. M o tio n s Originally Filed In Federal Court

D e fe n d a n t Shep R. Cutler has filed a document in this case, 7:10-cv-85, titled "a m e n d m e n t to motion to dismiss"(Doc. 8). In the document he asserts that he is w ith d ra w in g one of his arguments from his motion to dismiss. The motion to dismiss h e refers to is the motion to dismiss filed in federal court when it was removed to the C o u rt for the first time, case 7:09-cv-117. T h e Federal Rules of Civil Procedure Rule 81(c) provides that "after removal, re p le a d in g is unnecessary unless the court orders it." In this case, recasting the p a rtie s motions originally filed in federal court when the Defendants first removed the c a s e would clarify the disputes at issue. Accordingly, the defendants are ordered to file recast motions to dismiss on or before September 20, 2010, if they wish the C o u rt to consider the motions. The clerk's office is directed to terminate Defendant's S h e p R. Cutler's amendment to motion to dismiss (Doc. 8) because it is now moot. D e fe n d a n t Cutler may file a recast motion to dismiss which leaves out an argument

T h e Defendants removed the case after the Plaintiffs amended their c o m p la in t to assert a cause of action exceeding $75,000. 2

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found in his first motion to dismiss. Any other motions previously filed in case number 7:09-cv-117, but not ruled o n by this Court, must also be recast by September 20, 2010, if the party who b ro u g h t the motion wishes the Court to issue a ruling on it. B. P e n d in g Motions filed in Superior Court

B a s e d on the record, the Plaintiffs filed a motion for default judgment in the s u p e r io r court following remand. The superior court denied the motion. A motion fo r reconsideration of the superior court's order was pending when the Defendants re m o v e d the case. T h e rule in the Eleventh Circuit, established in Resolution Trust Corp., v. B a k k e r, 51 F.3d 242, 245-46 (11th Cir. 1995), is that a party has ten days after the d a te of removal to challenge a state court or judgment. If the challenge is not filed w ith in ten days, the party waives its right to challenge a removed state court ju d g m e n t. Id. It is also true, however, that upon removal "the federal court takes the case u p where the State court left it off." Granny Goose Foods, Inc. v. Brotherhood T e a m s te rs & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 4 3 6 , 94 S.Ct. 1113, 1122-23, 39 L.Ed.2d 435 (1974) (citation and quotations o m itte d ) . In this case, the motion to reconsider was pending prior to case's removal. Bakker is not exactly on point because in Bakker a motion challenging the state 3

court order was not pending when the case was removed. In contrast, the Plaintiffs' m o tio n to reconsider was pending at the time of the removal. Since the district court ta k e s up the case as it was in state court, the motion for reconsideration is a pending m o tio n before this Court. To aid the organization of the docket, Plaintiffs, if they wish the Court to c o n s id e r the motion, are ordered to file the motion for reconsideration on the C M /E C F system no later than September 20, 2010. Doing so will make it clear that th e motion is pending. Defendant United Healthcare Insurance Company does not need to re-file its re s p o n s e (Doc. 9) to Plaintiffs' motion for reconsideration. S O ORDERED, this the 13th day of September, 2010. s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE lm c

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