CLAYTON, et al v. SUNTRUST BANK, et al

Filing 66

ORDER signed by JUDGE JAMES A. BEATY, JR on 02/11/2013, that Defendant SunTrust Bank's Motion to Remand and Renewed Motion to Remand [Doc. # 8 , # 35 ] are GRANTED, and this action is REMANDED to Alamance County, North Carolina, Superior Court. The Clerk of Court is directed to send a certified copy of this Order to the Alamance County Superior Court Clerk. FURTHER that Defendant SunTrust Bank's Motion to Dismiss [Doc. # 7 ] and Renewed Motion to Dismiss [Doc. # 33 ] are DENIED AS MOOT. FURTHER that Plaintiffs' Motion for Preliminary Injunction [Doc. # 1 ], Motion for Summary Judgment [Doc. # 22 ], Motion to Vacate [Doc. # 29 ], Motion for Cease and Desist Order [Doc. # 44 ], Request for Discovery [Doc. # 45 ], and Motion for Entry of Default [Doc. # 62 ] are DENIED WITHOUT PREJUDICE in light of the remand. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GAIL CLAYTON and THOMAS
CLAYTON,
Plaintiffs,
v.
SUNTRUST BANK and ALAN E.
FERGUSON,
Defendants.

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1:11CV818

ORDER
On September 12, 2012, the United States Magistrate Judge’s Recommendation was filed
and notice was served on the parties pursuant to 28 U.S.C. § 636(b)(1). Plaintiffs filed objections
[Doc. #43] to the Recommendation within the time limit prescribed by Section 636, Defendants
responded [Doc. #46], and Plaintiff replied to the response [Doc. #47]. The Court has reviewed
Plaintiffs’ objections de novo, as well as Plaintiff’s additional subsequent filings, and finds they
do not change the substance of the United States Magistrate Judge’s Recommendation [Doc.
#41], which is affirmed and adopted.1 Therefore, the Motion to Remand will be granted, and
Plaintiffs’ remaining pending motions, including the additional motions filed after the
Recommendation was entered, will be denied in light of the remand.

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To the extent Plaintiffs Gail Clayton and Thomas Clayton now attempt to assert diversity jurisdiction
in this case, the Court notes that the Claytons are defendants in the state court action that they are seeking to
remove, and they are citizens of North Carolina. Therefore, under 28 U.S.C. § 1441(b), they may not properly
seek removal based on diversity, as noted by Suntrust Bank in its Motion to Remand [Doc. #14 at 7].

IT IS THEREFORE ORDERED that Defendant SunTrust Bank’s Motion to Remand
and Renewed Motion to Remand [Doc. #8, #35] are GRANTED, and this action is
REMANDED to Alamance County, North Carolina, Superior Court. The Clerk of Court is
directed to send a certified copy of this Order to the Alamance County Superior Court Clerk.
IT IS FURTHER ORDERED that Defendant SunTrust Bank’s Motion to Dismiss
[Doc. #7] and Renewed Motion to Dismiss [Doc. #33] are DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction [Doc.
#1], Motion for Summary Judgment [Doc. #22], Motion to Vacate [Doc. #29], Motion for
Cease and Desist Order [Doc. #44], Request for Discovery [Doc. #45], and Motion for Entry
of Default [Doc. #62] are DENIED WITHOUT PREJUDICE in light of the remand.
This, the 11th day of February, 2013.

United States District Judge

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