ANDREWS et al v. DAUGHTRY

Filing 25

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 01/15/2014 as set out herein. ORDERED that Plaintiffs' motion to remand (Doc. 19 ) is GRANTED and the case is REMANDED to the General Court of Justice, Superior Court Division, Guilford County, North Carolina. Daughtry's motion to dismiss (Doc. 12 ) is DENIED WITHOUT PREJUDICE for lack of subject matter jurisdiction.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RYAN ANDREWS, SCOTT CRAWFORD,
and MARK PERRY,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
CHRISTOPHER ADAM DAUGHTRY,
Defendant.

1:13cv408

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
One of the more popular and prolific songwriters of the
twentieth

century,

Sammy

Cahn,

once

“lovelier the second time around.”

wrote

that

love

was

BING CROSBY, The Second Time

Around, lyrics by Sammy Cahn, music by Jimmy Van Heusen, in HIGH
TIME (Bing Crosby Prod. 1960).
test

in

the

context

of

This case puts the lyric to the

a

contemporary

songwriter’s

second

attempt at federal removal jurisdiction.
Plaintiffs
(collectively,
Defendant
profits

Ryan

Andrews,

“Plaintiffs”)

Christopher
derived

from

Adam

Scott

are

suing

Daughtry

certain

Crawford,
their

and

former

(“Daughtry”),

musical

Mark

works.

Perry

bandmate,

to

recover

The

action

originated in state court, was timely removed to this court, and
then remanded for lack of subject matter jurisdiction.

(Doc. 24

in case 1:12cv441.) 1
state

court,

After some discovery and motion practice in

Daughtry

filed

an

answer

that

asserted

counterclaims under the Copyright Act, 17 U.S.C. § 101 et seq.
(“Copyright Act”).
court,

premising

He removed the action a second time to this
jurisdiction

on

28

U.S.C.

§

1454

presence of a federal question in the counterclaims.

and

the

(Doc. 1.)

Plaintiffs move to remand the action on the grounds that
jurisdiction

is

lacking

under

section

removal was nevertheless untimely.
the

motion

on

both

Plaintiffs’

claims

relief

be

can

grounds
for

granted

to

pursuant

Procedure 12(b)(6) (Doc. 12).

(Doc. 19.)

(Doc.

failure

1454

23)

and

state
to

a

and

Daughtry’s

Daughtry opposes
moves

to

claim

upon

which

of

Civil

Federal

Rule

dismiss

The court has stayed all briefing

on the dismissal motion pending resolution of Plaintiffs’ motion
to remand.
For

(Doc. 22.)

the

reasons

set

forth

below,

Plaintiffs’

motion

to

remand will be granted, rendering the court without jurisdiction
to consider Daughtry’s motion to dismiss.
I.

BACKGROUND
A.

Factual Background

The facts leading to this dispute are set forth in detail

1

All references are to documents filed in the current case, 1:13cv408,
unless specifically noted otherwise, as here.

2

in this court’s earlier opinion.
cv-00411,

2013

WL

664564,

at

Andrews v. Daughtry, No. 1:12-

*1-3

(M.D.N.C.

Feb.

22,

2013).

Pertinent here, Plaintiffs allege the following:
Sometime in 2004, Andrews, Crawford, Perry, and Daughtry
formed a band called “Absent Element.”

All four bandmates were

musicians and began collaborating on songwriting, recording, and
performing.
related

Together they also marketed the band and sold band-

merchandise.

All

four

shared

equally

in

the

band’s

costs and profits and considered themselves a partnership.
In late December 2004, the bandmates had a disagreement
over

how

Absent

to

split

Element’s

“Uprooted”

in

the

songs.
March

songwriting
Before
2005,

authorship

the

release

however,

they

and
of

credit
their

resolved

for

album
their

differences by “agree[ing] to equally share in the profits from
any songs written by any of the partners as members of and in
furtherance of Absent Element, irrespective of the extent of any
one band member’s contribution to a particular song.”

(Doc. 2

¶ 20.)

Furthermore, they “agreed that each song written by any

of

partners

the

as

members

of

and

in

furtherance

of

Absent

Element would be owned equally by the four parties, irrespective
of

the

extent

of

particular song.”
writing.

any

one

band

(Id. ¶ 22.)

member’s

contribution

to

a

This agreement was reduced to

Shortly after Absent Element released its first album,

“Uprooted,” in March 2005, the band registered a copyright for
3

all seven songs on it with the U.S. Copyright Office; all four
bandmates were listed as co-authors.
In the summer of 2005, the bandmates agreed that Daughtry
should audition for and participate in the nationally-televised
singing competition “American Idol” in order to gain the band
exposure.

Daughtry successfully entered the competition in the

fall of 2005, appeared on the show in the winter and spring of
2006, and made it to the final four before being cut in May
2006.

During

introduced

Daughtry’s

Plaintiffs

as

time
his

judges,

and

producers;

the

during

one

show

were

and

on

the

show,

bandmates
Plaintiffs

to

other

were

identified

he

repeatedly
contestants,

shown

as

on

“Chris’

camera
Band.”

Plaintiffs believed that Daughtry appeared on the show in order
to promote Absent Element.
Meanwhile, members of the band continued to write songs.
In the summer of 2005, the song “Sinking” was written.
before June 2006, the song “Home” was written.

Sometime

In Plaintiffs’

view, regardless of who wrote the songs, they were written in
furtherance of the Absent Element partnership and were therefore
partnership

assets.

Plaintiffs

believed

they

would

share

authorship credit for and profits from those songs.
Absent

Element

last

performed

in

June

2006.

Daughtry

entered into a solo recording contract in the summer of 2006,
although

Plaintiffs

were

unaware
4

of

it

and

Daughtry

assured

Plaintiffs
November

they

2006,

would

continue

Daughtry

to

released

a

solo

studio

as

a

debut

band.

album

musicians

In

titled

“Daughtry,”

recorded

Plaintiffs.

Daughtry released his second album, “Leave This

Town,” in July 2009.

with

perform

instead

of

In their complaint, Plaintiffs allege that

music and lyrics from four Absent Element songs were used in
songs

on

“Daughtry”

and

“Leave

This

Town”:

“Breakdown”

and

“Conviction” from the band’s “Uprooted” album; “Sinking”; and
“Home.”

Plaintiffs contend that Daughtry has failed to provide

authorship credit and profits from these songs in violation of
their partnership agreement.
B.

Procedural Background

Plaintiffs filed their complaint in Guilford County (North
Carolina) Superior Court on April 5, 2012.

The complaint seeks

relief on five claims: four arising from the alleged partnership
and

one

for

unjust

enrichment

“to

the

extent

the

wrongful

conduct of Daughtry . . . does not fall within the subject
matter of his partnership agreement.”

(Doc. 2 ¶ 80.)

Daughtry removed the case to this court on May 3, 2012,
premising jurisdiction on the presence of a federal question
under the Copyright Act, and shortly thereafter moved to dismiss
the complaint.
After

hearing

Plaintiffs timely moved to remand the action.
argument

on

the

remand

motion,

this

court

determined that Plaintiffs had “carefully pleaded their claims
5

to avoid federal question jurisdiction” and remanded the action
to the state court of origin on February 22, 2013.

Andrews,

2013 WL 664564, at *6, *15.
According to Plaintiffs, after this court’s remand decision
“[p]roceedings then began in earnest in state court.”
at 3.)

(Doc. 20

On March 25, 2013, Daughtry moved the North Carolina

Business Court to designate the action as a complex business
case.

(Doc. 1-2 at 42-47.)

untimely,

and

the

case

was

Superior Court on April 1.

The court denied the motion as
returned

to

the

Guilford

(Doc. 1-3 at 9-10.)

County

On April 4,

Daughtry filed a motion to dismiss the complaint and served his
first request for production of documents on Plaintiffs.
at 1-5.)

(Id.

According to Plaintiffs, they served their first set

of written discovery on Daughtry on May 9.
administrative

hearing

to

appoint

a

(Doc. 20 at 3.)

mediator,

determine

An
a

scheduling order, and set a trial date was set for May 29.
(Doc. 1-3 at 11.)
On

May

17,

while

his

motion

to

dismiss

was

apparently

pending, Daughtry filed an answer in state court, asserting two
counterclaims, and, on May 20, filed a second notice of removal
to this court.

(Id. at 13-37; Doc. 1.)

This time, Daughtry

premises federal question jurisdiction on 28 U.S.C. § 1454.
counterclaims

under

the

Copyright

Act

for

(1)

a

He

declaratory

judgment stating, among other things, that while Plaintiffs are
6

equal co-owners of the copyrights in the sound recordings of
Absent Element, they do not enjoy authorship or ownership rights
in

the

music

and

lyrics

of

all

the

songs

alleged;

rather,

Daughtry holds sole ownership and authorship rights in the four
Absent

Element

songs

at

issue

(“Home,”

“Breakdown,”

“Conviction,” and “Sinking”) and co-ownership in others, and (2)
an equitable accounting for profits from the “Uprooted” album.
(Doc. 1-3 at 31-34.)
Plaintiffs now move again to remand the case to state court
on the grounds that federal question jurisdiction is lacking and
that Daughtry’s removal is untimely.
II.

(Doc. 19.)

ANALYSIS
A.

Federal Jurisdiction Based on Counterclaims

Traditionally, a plaintiff could not get into federal court
simply because an anticipated defense to the plaintiff’s state
law claim would raise a federal question.

See Louisville &

Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908).
federal

question

jurisdiction

is

present

“only

Generally,
when

the

plaintiff’s statement of his own cause of action shows that it
is based upon [federal law.]”

Id. at 152.

In Holmes Group,

Inc. v. Vornado Air Circulation Systems, Inc., the Supreme Court
expressly applied this rule to counterclaims, holding that “a
counterclaim – which appears as part of the defendant’s answer,
not as part of the plaintiff’s complaint – cannot serve as the
7

basis

for

‘arising

under’

jurisdiction.”

535

U.S.

826,

831

(2002).
Holmes Group involved not just any counterclaim, however.
The defendant had asserted a counterclaim arising under federal
patent law.

After Holmes Group, Congress became concerned about

the decision’s effects on the uniformity of federal patent law,
as

well

as

other

areas

traditionally

reserved

federal jurisdiction, such as copyright.
in

Holmes

adjudicating a significant amount of federal patent claims.

In

Congress
in

the

that

passed

2011

state

The rule articulated
up

included

meant

exclusive

end

response,

Group

for

the

courts

so-called

Leahy-Smith

could

“Holmes

America

Group
Act.

Invents

fix,”
Joe

Matal, A Guide to the Legislative History of the America Invents
Act: Part II of II, 21 FED. CIR. B.J. 539, 539 (2012) (citing H.R.
REP. NO. 112-98, at 81 (2011)).
added

a

new

removal

statute,

Among other things, the “fix”
which

allows

“any

party

[who]

asserts a claim for relief arising under any Act of Congress
relating to patents, plant variety protection, or copyrights” to
remove

that

case

(emphasis added).

to

federal

court.

28

U.S.C.

§

1454(a)

No longer is a defendant with a patent or

copyright counterclaim bound by a plaintiff’s well-pleaded state
law complaint to litigate in a state court.
The
courthouse

new

section

doors

for

1454
all

does

not

fix

defendants
8

open
with

the
a

federal
copyright

counterclaim, however.
1454

specifically

A defendant must be timely.

incorporates

applicable to other removals.
Under

section

“within

30

1446(b)(1),

days

after

procedures

and

deadlines

See 28 U.S.C. §§ 1446, 1454(b).

a

the

the

Section

notice

of

removal

receipt

by

the

must

be

defendant,

filed

through

service or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding
is based.”

If the case stated in the initial pleading is not

removable, however, section 1446(b)(3) requires that a notice of
removal be filed “within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading,
motion,

order

or

other
the

paper

case

from

is

one

which
which

it
is

may
or

first
has

be

ascertained

that

become

removable.”

Thus, even under section 1454, a defendant who does

not remove timely will be subject to a remand motion pursuant to
section

1446.

However,

where

removal

is

premised

solely

on

section 1454, the deadlines in section 1446(b) “may be extended
at any time for cause shown.”

28 U.S.C. § 1454(b)(2).

It is a “near-canonical rule” that the burden of proving
federal

removal

jurisdiction

lies

with

the

party

seeking

removal; this rule applies even to new statutes silent on the
issue.
2008)

Strawn v. AT&T Mobility LLC, 530 F.3d 293, 297 (4th Cir.
(refusing

to

disturb

this

“long-settled

principle”

as

applied to the Class Action Fairness Act, despite legislative
9

history

suggesting

class actions).

Congress

favored

federal

jurisdiction

over

As the party seeking removal, Daughtry must

therefore bear the burden of demonstrating the basis of this
court’s removal jurisdiction.

Additionally, because Plaintiffs

have challenged the timeliness of Daughtry’s removal, Daughtry
must demonstrate that his notice of removal was timely.

See

McPhatter v. Sweitzer, 401 F. Supp. 2d 468, 472 (M.D.N.C. 2005)
(burden on defendant to prove timeliness of removal); Hartford
Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259
(4th Cir. 2013) (burden of proving jurisdiction and “propriety”
of

removal

is

on

removing

party);

Kluksdahl

v.

Muro

Pharm.,

Inc., 886 F. Supp. 535, 537 (E.D. Va. 1995) (“[Removing party]
bears the burden of establishing the right to removal, including
compliance with the requirements of 28 U.S.C. § 1446(b).”). 2
While Daughtry contends that his counterclaims arise under
the

Copyright

Act

and

therefore

confer

federal

removal

jurisdiction under section 1454, the court will need to reach
that issue only if Daughtry’s removal is timely.
timeliness

is

a

significant

issue

nevertheless,

Thus, because
the

court’s

inquiry will begin there.

2

This procedural requirement is subject to waiver.
See Barbour v.
Int’l Union, 640 F.3d 599, 614-15 (4th Cir. 2011) (en banc)
(timeliness of removal is a procedural requirement, which may be
waived if the party opposing removal does not challenge it), abrogated
on other grounds by 28 U.S.C. § 1446(b)(2)(B).

10

B.

Timeliness of Daughtry’s Removal

Daughtry contends that the 30-day clock set out in section
1446 started on May 17, 2013, the day he filed his answer and
counterclaims,
timely.

making

his

removal,

(Doc. 23 at 9.)

filed

on

May

20,

2013,

He reasons that the first “amended

pleading, motion, order or other paper from which it may first
be ascertained that the case is one which is or has become
removable”

was

his

answer

§ 1446(b)(3).

Plaintiffs

counterclaims

cannot

and

contend

be

the

counterclaims.
that

28

Daughtry’s

U.S.C.

answer

clock-triggering

and

document

contemplated by section 1446(b)(3) because that section refers
to a defendant’s receipt of an “amended pleading, motion, order
or other paper.”

(Doc. 20 at 9-11.)

According to Plaintiffs,

Daughtry’s “Answer and Counterclaims is not a pleading or paper
that

[Daughtry]

received

–

[Daughtry]

prepared

and

filed

it

himself, and he could have done so at any time after receiving
Plaintiff’s Complaint in April 2012.”

(Id. at 10.)

Plaintiffs

conclude that the 30-day clock started on April 5, 2012, the day
they

filed

their

complaint.

By

Plaintiffs’

measure,

then,

Daughtry’s second notice of removal, filed on May 20, 2013, is
more than a year late.

(Id.)

To be sure, this court’s determination that the complaint
did not provide “arising under” jurisdiction for a traditional
removal, Andrews, 2013 WL 664564, at *8, did not resolve the
11

question
whether

now

presented.

Plaintiffs’

But

complaint

the

court

triggered

need
the

not

determine

30-day

clock

in

section 1446(b)(1) or, in contrast, whether that trigger was as
late as Daughtry’s answer and counterclaims.

This is because

there is a date between the two that clearly provided removal
notice under section 1454.
In determining when a defendant knew that a case was one
which had become removable, the Fourth Circuit does “not require
courts

to

inquire

into

the

subjective

knowledge

of

the

defendant, an inquiry that could degenerate into a mini-trial
regarding who knew what and when.”

Lovern v. Gen. Motors Corp.,

121 F.3d 160, 162 (4th Cir. 1997).

Instead, courts may “rely on

the face of the initial pleading and on the documents exchanged
in the case by the parties to determine when the defendant had
notice of the grounds for removal, requiring that those grounds
be apparent within the four corners of the initial pleading or
subsequent paper.”

Id.

The documents exchanged in this case and the statements of
Daughtry’s counsel at oral argument on Plaintiffs’ first motion
to remand demonstrate that Daughtry knew, before the court’s
February 22, 2013 Memorandum Opinion and Order, that he claimed
ownership
recordings

of

the

under

contested
the

Absent

Copyright

Act.

Element
In

songs
his

and

sound

memorandum

in

support of his motion to dismiss filed May 10, 2012, Daughtry
12

stated that he “(and others) owns the sound recordings and he
was

entitled

dissolution.”

to

exploit

(Doc.

11

them

in

case

after

[Absent

1:12cv441

Element’s]

3.) 3

at

In

his

response to Plaintiffs’ first motion to remand, Daughtry argued
on June 25, 2012, that it was “clear that there is a dispute
over both the ownership of the rights and the authorship of the
‘Absent Element Songs.’”
at

oral

informed

argument
the

on

court

(Doc. 18 in case 1:12cv441 at 8.)
January

that

17,

2013,

“[Daughtry’s]

Daughtry’s

position

is

And

counsel
that

the

underlying songs are owned either entirely or – entirely by Mr.
Daughtry or in most part.”
Although

Daughtry

(Doc. 23 in case 1:12cv441 at 25.)

characterized

the

claim

as

a

defense,

the

substance is the same as that which forms the basis of his
counterclaims.

Daughtry’s

representations

to

the

court

thus

provide objective evidence that he knew at the time that he had
an ownership claim in the songs and recordings.
On

February

Memorandum
acknowledged

22,

Opinion
that

2013,

and

Daughtry

Order.

Plaintiffs’

received

The
claims

the

decision
presented

court’s
expressly

a

federal

question under the Copyright Act, but it concluded that remand

3

Daughtry also argued that he is “at minimum, a joint owner of the
underlying works,” id. at 9, that he “registered the works in his own
name,” id. at 19, and that by January 2, 2007, “Plaintiffs knew or
reasonably should have known that Mr. Daughtry had asserted rights
both in the underlying musical compositions and in the allegedly
derivative works he recorded,” id.

13

was required because Plaintiffs had pleaded alternative statelaw theories of recovery that could provide an independent basis
for recovery.

Andrews, 2013 WL 664564, at *8.

This decision

constituted a writing within the meaning of section 1446(b)(3)
and is one from which Daughtry could ascertain that, because the
case was not removable on the basis of Plaintiffs’ complaint, it
might be removable on the basis of an ownership claim alleged
exclusively under the Copyright Act, should he wish to pursue
it.

Indeed, the court expressly distinguished the cases relied

on by Daughtry in which federal question jurisdiction was found
based on a declaratory judgment claim – like Daughtry’s current
claim – that is limited exclusively to the Copyright Act.

Id.

at *7 (citing Gaiman v. McFarlane, 360 F.3d 644, 652-53 (7th
Cir. 2004)).

Even Daughtry concedes that the court’s decision

provided

notice

him

Consequently,

the

under

30-day

section
clock

1454.

began

(Doc.

running

23
at

at
least

16.)
by

February 22, 2013, 4 and expired thirty days later -- well before
Daughtry filed his second notice of removal on May 20.
C.

Extension of Time

Although Daughtry’s current notice of removal is untimely,
section 1454 allows a court to extend the deadline for “cause

4

Section 1454, which became effective as to any action commenced on or
after September 16, 2011, was thus effective on the date Plaintiffs
filed this action on April 5, 2012.

14

shown.”

28 U.S.C. § 1454(b)(2).

Only a handful of cases has

interpreted the statutory language of section 1454, so it is
instructive

to

consider

how

those

courts

interpreted

this

provision, even though their holdings are not binding.
A Louisiana district court concluded that “[w]hile there is
no authority on what constitutes ‘cause shown’ under 28 U.S.C.
§ 1454(b)(2) to extend the 30–day time period to remove, at a
minimum the standard imposes some burden on the removing party
to justify why its tardiness should be excused.”

SnoWizard,

Inc. v. Andrews, Civ. A. No. 12-2796, 2013 WL 3728410, at *6
(E.D. La. July 12, 2013).

A Kentucky district court agreed,

noting that, although section 1454 “does not appear to create an
incredibly high bar for an extension,” the removing party does
have “some burden” to show why its delay should be excused.
Univ. of Ky. Research Found., Inc. v. Niadyne, Inc., Civ. No.
13-16-GFVT, 2013 WL 5943921, at *10 (E.D. Ky. Nov. 5, 2013)
(citing SnoWizard, 2013 WL 3728410, at *6)).
that

“oversight,

inadvertence,

or

The court found

excusable

neglect”

insufficient to excuse the defendant’s late removal.
different

Louisiana

district

voluntary

dismissal

of

the

remaining

court

found

later-served

defendants’

removal

that

defendants

would

have

a

Id.

A

plaintiff’s

(without
been

were

which

considered

timely) was insufficient reason to extend the time limitations.

15

Benesmart, Inc. v. Total Fin. Grp., LLC, Civ. A. No. 12-2645,
2012 WL 6020340, at *5 (E.D. La. Dec. 3, 2012).
Other procedural rules governing time limitations under a
“cause shown” standard also provide some guidance.
of

Civil

Procedure

6(b)

sets

deadlines in civil litigation.

out

the

standard

Federal Rule
for

extending

Before the Rules were revised in

2007, Rule 6(b) allowed a court to extend a deadline for “cause
shown”; now, Rule 6(b) allows a court to extend a deadline for
“good cause.”

The change was “intended to be stylistic only,”

and did not affect the substance of the rule.
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
ed.

2002)

(citing

Advisory

Amendment to Rule 6).

AND

4B CHARLES ALAN

PROCEDURE § 1165 n.9 (3d

Committee’s

Note

to

the

2007

In the Rule 6(b) context, then, “cause

shown” and “good cause” are not substantively different.
Like “cause shown,” the Rule 6 “good cause” standard is not
a high bar, but it does require some reasonable explanation for
the party’s delay.

See, e.g., Stanley v. Huntington Nat. Bank,

492 F. App’x 456 (4th Cir. 2012) (finding no “good cause” under
Rule

6

when

complaint

grounds

had

been

for

pro

se

apparent

in

plaintiff’s
the

proposed

pleadings

for

amended
several

months); U.S. Home Corp. v. Settlers Crossing, LLC, Civ. A. No.
DKC 08-1863, 2012 WL 3536691, at *17 (D. Md. Aug. 14, 2012)
(finding no “good cause” under Rule 6 when party had several
previous opportunities to argue a particular theory, but did
16

not); Bonds v. Electrolux Home Prod., Inc., C/A No. 8:06-1650GRA-BHH, 2006 WL 3955825, at *3-4 (D.S.C. Dec. 6, 2006) (finding
“good cause” under Rule 6 when counsel’s child fell seriously
ill

and

Alewine,

party
C/A

bore
No.

no

fault

for

the

4:08-cv-02332-GRA,

delay);

2010

WL

Strickland
679607,

at

v.
*1

(D.S.C. Feb. 24, 2010) (finding “good cause” under Rule 6 when
pro se plaintiff spent time in mental hospital).
With this guidance in mind, it is apparent that Daughtry
has

not

shown

three-month

good

delay

in

cause

under

section

petitioning

for

1454

his

nearly

following

this

court’s February 22, 2013 Memorandum Opinion and Order.

But

mere delay is not the only problem.
time,

Daughtry

actively

litigation process.

engaged

removal

for

During the intervening

the

state

court

in

the

In addition to serving written discovery

requests on Plaintiffs, Daughtry unsuccessfully petitioned the
state court to transfer the case to the North Carolina Business
Court and designate it a complex business case.
filed

a

motion

to

dismiss.

Daughtry

Further, he

therefore

not

only

participated in, but also sought remedies from, the state court
for almost three months, all with full knowledge that he claimed
ownership of the contested songs and recordings.

Only some six

weeks after the state court denied his request for designation
to the Business Court did he then elect to remove the case to
federal court.
17

One of the salutary purposes of the timing provisions of
sections 1446 and 1454 is to “limit the ability of the Defendant
to test the waters in one forum and, finding them inhospitable,
move to another forum that might be more sympathetic to its
views.”

Niadyne, 2013 WL 5943921, at *10.

Notions of comity

and federalism undergird proper respect for the timing rules of
sections 1446 and 1454.

Id.

Late removal also “transgresses

the important notions of conservation of resources and judicial
economy.”
concerns

Id.
do

implicated.”

As another court rightly observed, “these policy
not

vanish

Id. at *11.

simply

because

a

patent

claim

is

The same can be said for a copyright

claim.
Daughtry urges the court to find cause for removal on the
ground that the federal courts are the exclusive forum for his
copyright
Niadyne

claims.

court,

(Doc.

if

23

Congress

at

16.)

shared

that

But,
view,

as

noted

“it

would

simply removed all time limitations” in section 1454.
5943921, at *10.

by

the
have

2013 WL

It did not.

Therefore, Plaintiffs’ motion will be granted and the case
remanded to the Guilford County Superior Court.

In light of

this

to

conclusion,

the

court

lacks

jurisdiction

consider

Daughtry’s motion to dismiss (Doc. 12), which will be denied
without prejudice.

See In re Bear River Drainage Dist., 267

F.2d 849, 851 (10th Cir. 1959) (citing Marchant v. Mead–Morrison
18

Mfg.

Co.,

11

F.2d

368,

369

(2d

Cir.

1926));

McWilliams

v.

Monarch Rubber Co., 70 F. Supp. 2d 663, 666 (S.D. W. Va. 1999).
III. CONCLUSION
For the reasons set forth above, the court finds that, even
assuming Daughtry’s counterclaims arise under the Copyright Act
and therefore provide a basis for federal removal jurisdiction,
his notice of removal was untimely and without a showing of
cause to excuse the delay.
IT IS THEREFORE ORDERED that Plaintiffs’ motion to remand
(Doc. 19) is GRANTED and the case is REMANDED to the General
Court

of

North

Carolina.

DENIED

Justice,

WITHOUT

Superior

Court

Division,

Daughtry’s

motion

PREJUDICE

for

to

lack

Guilford

dismiss
of

(Doc.

subject

County,
12)

matter

jurisdiction.

/s/
Thomas D. Schroeder
United States District Judge
January 15, 2014

19

is