Williams v. Nationwide Assurance Company, et al
Filing
18
ORDER REMANDING 4 Defendant's Motion to Dismiss for Failure to State a Claim, and GRANTING 9 Plaintiff's Motion to Remand. This action is remanded to the Superior Court of New Hanover County, North Carolina. The defendant's motio n to dismiss and any other pending motions are REMANDED with this body of this action. Signed by US District Judge Terrence W. Boyle on 10/9/2013. Counsel is directed to read Order in its entirety. Copy of Order mailed to Clerk of Superior Court in New Hanover County. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 7:13-CV-00067-BO
MICHAEL WILLIAMS,
Plaintiff,
v.
NATIONWIDE ASSURANCE CO.,
NATIONWIDE INSURANCE CO.,
NATIONWAIDE INSURANCE CO. OF
AMERICA
Defendants.
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ORDER
This matter is before the Court on defendants' motion to dismiss pursuant to FED. R. CIV.
P. 12(b)(6) [DE 4] and plaintiffs motion to remand to state court [DE 9]. For the reasons stated
herein, this matter is REMANDED to state court and defendant's motion to dismiss is
REMANDED with the body of this action.
BACKGROUND
Plaintiff filed this action in New Hanover County Superior Court on March 8, 2013
alleging breach of contract, bad faith, and unfair and deceptive trade practices. Defendants filed a
notice of removal on April11, 2013 alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332
(2012). On April 18, 2013, defendants filed a motion to dismiss counts two and three of the
complaint. On May 13, 2013, plaintiff filed an amended complaint in state court and attached the
amended complaint to his motion to remand filed on May 29, 2013. The amended complaint
states a claim for $55,000.
DISCUSSION
Defendants cite several procedural deficiencies in plaintiffs motion to remand as
grounds to deny that motion. Plaintiff did not abide by Local Civil Rule 7.1 (d) by failing to
include a memorandum in support of his motion to remand in the manner prescribed by Local
Civil Rule 7 .2( a). However, where remand is based on lack of subject matter jurisdiction, the
Court may raise the issue sua sponte. Ellenberg v. Spartan Motors Chassis, Inc., 519 F.3d 192,
196 (4th Cir. 2008). The procedural defects in plaintiffs motion to remand are of no
consequence if this Court finds that it lacks subject matter jurisdiction, for jurisdiction goes to
the very power ofthe Court to act. Under 28 U.S.C. § 1332, this Court has jurisdiction where the
matter in controversy exceeds the sum or value of $75,000 exclusive of costs. Here, plaintiffs
have clearly indicated that they are only seeking to recover $55,000 in costs. There is no reason
to believe that the actual amount in controversy exceeds $55,000. Accordingly, plaintiffs motion
to remand to state court is granted.
CONCLUSION
For the foregoing reasons, this action is REMANDED to the Superior Court ofNew
Hanover County, North Carolina. The defendant's motion to dismiss and any other pending
motions are REMANDED with the body of this action.
SO ORDERED.
This
the~ day of October, 2013.
T RRENCE W. BOYLE
UNITED STATES DISTRIC
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