Coleman's Original Restaurant et al v. Scottsdale Insurance Company et al

Filing 31

ORDER granting 20 Motion to Remand. Plaintiffs' request for attorney's fees is DENIED. The action is REMANDED to Brunswick County Superior Court. Signed by Chief Judge James C. Dever III on 12/21/2016. (Briggeman, N.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DMSION No. 7:16-CV-302-D COLEMAN'S ORIGINAL RESTAURANT, ) and PEGGY COLEMAN, ) ) Plaintiffs, ) ) v. ) ORDER ) SCOTTSDALE INSURANCE COMPANY, ) SCOTTSDALE INDEMNITY COMPANY, ) SCOTTSDALE SURPLUS LINES ) INSURANCECOMPANY, ) ) RYZE CLAIM SOLUTIONS, LLC, EAGLE ADJUSTING SERVICES, INC., ) and MICHAEL JOSEPH GERHART, ) ) Defendants. ) On September 2, 2016, Coleman's Original Restaurant and Peggy Coleman ("plaintiffs") moved to remand this action to Brunswick County Superior Court [D.E. 20]. Plaintiffs, North Carolina citizens, argue that defendant Michael Joseph Gerhart ("Gerhart") is also a North Carolina citizen and therefore defeats complete diversity. See [D.E. 20], [D.E. 21] 2-9; cf. 28 U.S.C. ยง 1332(a)(1). On September 23, 2016, defendants responded in opposition and argue that plaintiffs l fraudulently joined Gerhart in order to defeat diversity jurisdiction. See [D.E. 24] 2-12. On October 11, 2016, plaintiffs replied [D.E. 28]. The court has reviewed the record, North Carolina law, and the parties' arguments concerning fraudulent joinder. See, e.g., Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999); Hartley v. CSX Trans .. Inc., 187 F .3d 422, 424-25 (4th Cir. 1999); Marshall v. Manville Sales Corp., 6 F.3d229, 232-33 (4th Cir. 1993); Sampson v. Leonard, No. 4:10-CV-121-D, 2011 WL 129634, at *2-3 (E.D.N.C. Jan. 12, 2011) (unpublished); Capparelli v. AmeriFirstHomelmp. Fin. Co., 535 F. Supp. 2d554, 559-:-61 (E.D.N.C. 2008). Defendants have failed to "showthattheplaintiffcannot establish a claim [against Gerhart] even after resolving all issues of law and fact in the plaintiff's favor." Hartley, 187 F.3d at 424. Stated differently, the record shows that plaintiffs have "a possibility of a right to relief' against Gerhart and no "outright fraud" appears in plaintiffs' pleadings. Marshall, 6 F.3d at 33. Thus, the court lacks subject-matter jurisdiction based on diversity jurisdiction. In sum, plaintiffs' motion to remand [D.E. 20] is GRANTED. Plaintiffs' request for attorney's fees is DENIED. The action is REMANDED to Brunswick County Superior Court. SO ORDERED. This ...2l_ day of December 2016. Chief United States District Judge 2

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