Rutland et al v. Dugas et al

Filing 16

ORDER that 12 Motion to Dismiss and Alternative Motion for Summary Judgment filed by Third-Party Defendant United States of America shall be treated by the Court as a motion for summary judgment. FURTHER ORDERED that Third -Party Plaintiff's deadline for responding to Motion for Summary Judgment is EXTENDED for 14 days from the entry of this Order. If the Third-Party Plaintiff wishes to conduct limited discovery on an expedited basis prior to responding, she shall file a motion to that effect. FURTHER ORDERED that except as otherwise stated in this Order, this action is hereby STAYED pending resolution of USFS's Motion for Summary Judgment.IT. Signed by District Judge Martin Reidinger on 1:15cv228. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00228-MR-DLH

JOHN W. RUTLAND III,
JOSEPH L. ELLEN and wife,
DONNA M. ELLEN,
CARL W. BRIDENSTINE and wife,
CYNTHIA S. BRIDENSTINE,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
TERRI HOPE DUGAS, ANTHONY
)
M. MILICI and wife, PATHUMWAN
)
MILICI, and SELENA MICHELLE
)
MILICI,
)
)
Defendants,
)
)
TERRI HOPE DUGAS,
)
)
Third-Party Plaintiff, )
)
vs.
)
)
UNITED STATES DEPARTMENT OF )
AGRICULTURE – FOREST SERVICE, )
ANTHONY PHILLIPS, and JOSEPH
)
and GLORIA HALL,
)
)
Third-Party
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Motion to Dismiss and
Alternative Motion for Summary Judgment filed by Third-Party Defendant
United States of America [Doc. 12].
On September 30, 2015, the Plaintiffs initiated this action by filing a
Complaint and Immediate Request for Temporary Restraining Order against
Defendants Terri Dugas (“Dugas”), Anthony M. Milici and wife, Pathumwan
Milici, and Selena Michelle Milici in the General Court of Justice for McDowell
County, North Carolina, Superior Court Division. [Doc. 1-1]. Defendant
Dugas was served on or about October 1, 2015. On October 7, 2015, Dugas
filed an Answer and Third-Party Complaint, adding the United States
Department of Agriculture -- Forestry Service (“USFS”), among others, as a
third-party Defendant in this action. Dugas then immediately removed the
action to this Court pursuant to 28 U.S.C. § 1442(a)(1), which allows removal
to the district court of those actions which names as a defendant the United
States or any agency thereof.
On December 8, 2015, USFS filed the present motion, seeking to
dismiss this action for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). Alternatively, USFS moves for

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summary judgment on these same grounds pursuant to Federal Rule of Civil
Procedure 56. [Doc. 12].
The inclusion of USFS as a third-party defendant is the sole basis for
the exercise of federal subject matter jurisdiction in this case. [See Doc. 1].
Thus, if the third-party complaint is dismissed or resolved by summary
judgment as to USFS, the remainder of the case would be subject to remand
back to state court. See 28 U.S.C. § 1367(c)(3). As USFS’s motion presents
a threshold issue of subject matter jurisdiction, the Court will stay this action
pending resolution of USFS’s motion. Further, the Court hereby gives notice
to Third-Party Plaintiff Terri Dugas that the Court intends to treat USFS’s
motion as one for summary judgment under Rule 56. Accordingly, Dugas
shall be given a reasonable opportunity to present materials pertinent to the
motion. See Fed. R. Civ. P. 12(d). Should Dugas determine that she
requires any discovery prior to responding to USFS’s Motion, she shall file a
motion seeking discovery, which shall be limited to the issues presented in
USFS’s motion, on an expedited basis.
Accordingly, IT IS, THEREFORE, ORDERED that the Motion to
Dismiss and Alternative Motion for Summary Judgment filed by Third-Party

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Defendant United States of America [Doc. 12] shall be treated by the Court
as a motion for summary judgment.
IT IS FURTHER ORDERED that the Third-Party Plaintiff’s deadline for
responding to the Motion for Summary Judgment is hereby EXTENDED for
a period of fourteen (14) days from the entry of this Order. If the Third-Party
Plaintiff wishes to conduct limited discovery on an expedited basis prior to
responding, she shall file a motion to that effect.
IT IS FURTHER ORDERED that except as otherwise stated in this
Order, this action is hereby STAYED pending resolution of USFS’s Motion
for Summary Judgment.
IT IS SO ORDERED.
Signed: December 18, 2015

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