Jones v. North Carolina Department of Transportation

Filing 12

ORDER denying 9 Motion for Reconsideration ; granting 10 Motion for Leave to File; denying 11 Motion for Reconsideration. Signed by Senior Judge Graham Mullen on 09/10/2015. (Pro se litigant served by US Mail.)(jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Case No.: 3:15-cv-170
BETTE J.T. JONES, Trustee of the Family )
Trust Under The Mazie Graham Taylor
)
Trust u/a/d 08/24/1994 and of the Charles E. )
Taylor Revocable Trust u/a/d 06/15/2010, )
)
Plaintiff,
)
)
v.
)
)
NORTH CAROLINA DEPARTMENT OF )
TRANSPORTATION,
)
)
Defendant.
)
)

ORDER

THIS MATTER is before the Court on Plaintiff’s pro se Motion to Reconsider (Doc. No.
9), Motion for Leave to File Out of Time (Doc. No. 10), and an apparent second Motion to
Reconsider (Doc. No. 11) which is very similar to the first. On August 6, 2015, the Court remanded
this case to the Superior Court of North Carolina for Mecklenburg County for further proceedings
in that court. While Defendant presented numerous compelling reasons why this case should be
dismissed or remanded, the Court, for the sake of brevity, addressed only a couple of them, namely
that it appeared to lack jurisdiction over this case, and that at any rate, Plaintiff had failed to remove
the case in a timely manner under even the most generous interpretations of the relevant deadlines.
(See Doc. No. 8). Plaintiff asks the Court to reconsider that ruling, maintaining that both diversity
jurisdiction and federal question jurisdiction are present in this case, and that her attempts at
removal were not untimely.

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The Court has carefully reviewed these arguments, and nothing about the instant motion
causes the Court to reconsider its conclusions in the August 6 order.1 Plaintiff argues at length that
she is and has been a resident of the State of Missouri for many years, and that it is her citizenship
as trustee of the above-named trusts that determines whether diversity jurisdiction is present.
Plaintiff acknowledges that she “did list her father’s address as her address” before he passed away,
but that “this was only for the purpose of receiving mail whenever she came back to Charlotte.”
(Doc. No. 11-1 at 5).
Regardless of whether this is the case, it does not change the Court’s determination that
Plaintiff’s attempts at removal were untimely. The Court specifically noted that her attempt to
remove this matter was untimely under 28 U.S.C. § 1446(b)(3). For the purposes of this motion,
the Court also finds that Plaintiff’s attempts to remove were untimely under 28 U.S.C. § 1446(c),
which provides that: “A case may not be removed under subsection (b)(3) on the basis of
jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless
the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from
removing the case.” 28 U.S.C. § 1446(c)(1). It appears to the Court that this action was commenced
on March 21, 2012 in Superior Court in Mecklenburg County. Absent a finding of bad faith 2 on
the part of the NCDOT, then, the deadline for removing this case under 28 U.S.C. 1446(c) was
April 21, 2012.
The Court has carefully reviewed Plaintiff’s arguments that the NCDOT acted in bad faith
to prevent removal of this case, and finds that such arguments are baseless. There is no information

1

The Court acknowledges that the order mistakenly refers to Title VII of the Civil Rights Act of 1964 rather
than Title VI, under which Plaintiff’s “petition” is purportedly brought. But nothing about this typographical error
changes the Court’s reasoning or conclusions about the presence of federal question jurisdiction.
2
Plaintiff specifically references 28 U.S.C. § 1446(c)(3), which reads, in pertinent part: “If the notice of
removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff
deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad
faith under paragraph (1).” 28 U.S.C. § 1446(c)(3)(B).

2

in the record to support Plaintiff’s assertions that the NCDOT acted to prevent removal of this
matter, or to conceal the actual amount in controversy. To the contrary, it appears that Plaintiff has
been represented by competent counsel throughout much of the state court proceedings, and that
at no time was the issue of removal raised prior to Ms. Jones’ April 17 filing. Accordingly, the
Court declines to make a finding of bad faith, and declines to reconsider its order remanding this
case to Superior Court.
THEREFORE, IT IS ORDERED that Plaintiff’s Motion for Leave to File Out of Time
(Doc. No. 10) is GRANTED. Plaintiff’s Motions to Reconsider (Doc. Nos. 9 & 11) are DENIED.
The Clerk of Court is respectfully directed to send a copy of this order to Ms. Jones.
SO ORDERED.
Signed: September 10,
2015

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