Virginia Beach Resort & Conference Center Hotel Association Condominium v. Markel International Insurance Company Limited et al
Filing
18
MEMORANDUM OPINION AND REMAND ORDER that the court GRANTS the plaintiff'smotion to remand and DENIES the plaintiff's and the defendant'srequests for costs and attorneys' fees. This case is ORDEREDremanded to the Circuit Court for the City of Virginia Beach forfurther proceedings. The Clerk is DIRECTED to effect the remand. Signed by District Judge Rebecca Beach Smith and filed on 9/21/2011. (rsim)
UNITED
STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
VIRGINIA BEACH RESORT
CONFERENCE
&
CENTER HOTEL
ASSOCIATION CONDOMINIUM d/b/a
VIRGINIA BEACH RESORT HOTEL
CONFERENCE
&
CENTER,
Plaintiff,
CIVIL ACTION NO.
2:llcv437
v.
CERTAIN INTERESTED UNDERWRITERS
AT LLOYD'S,
LONDON
SUBSCRIBING TO
CERTIFICATE NUMBER AS65009VAP00047,
Defendant.
MEMORANDUM OPINION AND REMAND
This
matter
plaintiff,
Virginia
Association
Court
the
for
the
City
set
and
requests
before
Beach
Condominium,
reasons
remand
comes
of
DENIES
for
costs
to
Circuit
April
15,
Court
both
a
seq.,
alleging
and
the
the
2011,
&
on
the
motion
Conference
this
Center
action
Virginia
court
to
the
and
the
Circuit
Motion
the
the
Hotel
("Motion") .
GRANTS
plaintiff's
of
For
for
defendant's
fees.
Procedural History
the
the
declaratory
court
Beach,
and attorneys'
for
requesting
remand
below,
I.
On
Resort
Virginia
forth
the
ORDER
plaintiff
City
of
judgment
breach
of
filed
this
Virginia
under
Va.
contract
by
action
Beach,
Code
§§
Markel
in
the
Virginia,
8.01-184,
et
International
Insurance
Company,
Underwriter's
at
According
the
to
Lloyd's,
Lloyd's,
London,
instant
Subscribing
to
service
of
the
state
court
Def.'s
Br.
in
15.
of
On
July
Non-Suit
and
International
amending
the
2011,
the
Other
Insurance
On
Grounds
Defense
for
Declaratory
August
this
of
4,
§§
On
15,
plaintiff
Brief
Br.
Supp.
defendant
of
of
court
to
on
a
defendant
filed
its
an
<3l
1,
name
filed
a
2011.
ECF
Agreed
of
Specialty
as
Lloyd's,
15,
non-suit
properly
well
June
Remand
entered
ordering
diversity
this
court.
case
when
in
occurred
to
at
Lines.
AS65009VAP00047,
its
No.
Order
Markel
Lines
the
and
current
Answer
Counter
("Counterclaim").
2011,
contends
Number
Mot.
as
Specialty
aka
and
Complaint
Subsequently,
Notice
jurisdiction
of
on
Removal
pursuant
to
in
28
1441(b).
defendant,
in
("Answer"),
18,
the
Pi's
the
London,
Underwriters
and Atlantic
complaint
2011,
basis
and
before
2011,
Relief,
Judgment
the
1332
that
in-state
1 See
on
27,
the
August
currently
July
2011,
court
U.S.C.
agree
July
to
state
Company
plaintiff's
defendant.
Opp'n
of
Atlantic
complaint
of
For
and
Certificate
Supp.
15,
Lloyd's
defendant,
London
See
aka
the
the
that
Supp.
Opp'n
The
became
the
of
of
court
defendant
Mot.
to
to
to
and
its
Motion
defendant
and
diversity.1
waived
the
federal
non-suited
complete
Mot.
filed
plaintiff
removable
state
creating
plaintiff
both
court
dismissed
However,
right
on
an
the
to
remove
Def.'s
Remand
S[
2,
ECF
No.
12;
Remand
SI
4,
ECF No.
15.
the
case
filing
to
for
federal
removal,
order
remanding
costs
and
28
§
warranted.
29,
No.
fees
the
award
the
14.
filing
to
under
such
that
1-2,
the
its
Motion.
Def.'s
On
31,
with
costs
to
the
and
Pi's
award
of
of
as
to
an
its
authority
No.
may
of
be
11.
On
Opposition
its
deny
prior
entry
relief
ECF
court
Opp'n
2011,
II.
to
the
plaintiff's
attorneys'
Mot.
plaintiff
to
fees
in
Remand
1,
filed
a
Reply
The Motion is ripe for review.2
Analysis
Waiver of Right to Removal
The
plaintiff
argues
Counterclaim
in
of
constitutes
Removal,
remove
to
further
responded
Brief in Support of its Motion.
A.
the
remand
defendant
August
(1)
(2)
Remand
asking
for:
court;
defendant
the
asks
Counterclaim
state
(3)
to
its
securing
in
and
Mot.
Motion,
and
defending
ECF
matter
1447 (c);
2011,
Plaintiff's
Motion
the
Pi's
by
and therefore
attorneys'
U.S.C.
August
court
the
Remand
case
1,
jurisdiction
fact,
state
to
ECF
is
court,
a
federal
No.
that
12.
otherwise
timely removed the
the
prior
waiver
court.
There
proper,
action.3
defendant's
to
the
of
the
See
filing
Pi's
is
no
filing
of
its
defendant's
Br.
in
dispute
or
that
the
The
question
to
of Mot.
diversity
defendant,
in
is whether the
2 The court finds a hearing unnecessary to resolve the motion,
3 See supra note 1 and accompanying text.
its
Notice
right
Supp.
that
of
prior
filing
to
subsequent
a
below,
the
case,
of
it
action
is
court
that
law,
177
v.
"A
[]
262,
264
waived
(7th
to
Cir.
the
(quoting
§
very
2d
Mut.
due
demonstrating
this
and,
To
City
"may
in
'clear
a
"a
under
waive
and
a
factual
Chicago,
Westwood
879
its
(citing
(4th
Cir.
by
taking
court
before
Equip.,
waive."
its
waiver
remove
whether
of
is
[has]
59
state
Mac
such
there
2001)
57,
to
the
v.
to
[]
which
Appeals
W.Va.
right
make
of
find
the
federal
waiver
of
F.2d
Co.
intent
the
circumstances."
evaluate
must
from
Although
party's
(N.D.
the
in
within
Court
935
Aqualon
a
a
could
action
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removal
division
540
waive
defendant's
v.
of
days
to
Co.,
court
thirty
Circuit
defensive
the
forth
case
the
has
limited
Ins.
1998) .
fatal
set
remove
1446(a),(b).
536,
may
is
circumstances
of
and
court
Supp.
Rothner
1989)).
by
in
removal."
right,
as
Cir.
removal
for
U.S.C.
Fourth
defendant
(4th
its
inquiry
59
F.
substantial
petitioning
district
district
reasons
to
court
notice
remand
only
Donegal
1991)).
some
but
a
"the
a
court
remand.
for
removal,
state
the
the
right
state
file
28
Fronk,
Grubb
to
the
recognized
v.
in
"for
of
common
sued
basis
its
in
For
under
warrants
pending."
is
that
waived
case
served
statutory
right
at
the
counterclaim
effort.
FINDS
defendant
district
no
removal
defendant
accordingly,
date
voluntary
court
the
A
a
149
F.3d
defendant
and
objective
Grubb,
F.2d
935
1402,
30-day
unequivocal'
has
F.2d
1408
right
intent
to
to
remain
in
state
court."
Id.
at
59
(quoting
Rothner,
879
F.2d
at
1416).
The
plaintiff
Counterclaim
on
Notice
of
waiver
Sood
of
v.
(E.D.
to
Co.
B.
Clow
can
Baldwin
Bryant
(W.D.
v.
Va.
waiver
both
of
Sood
1979)
defensive
to
remove.
in
because
court
Id.
&
at
240
held
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v.
Joe
Baldwin
could
U.S.
it
Supp.
to
in
the
Tile
say
removal.").
when
result
See Aqualon,
149
in
a
by
264.
Heat
of
a
&
Light
Similarly,
cross-
cf.
120,
125
filing
held
of
See
1978);
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type
the
the
remove.
voluntary
a
invoking,
F.R.D.
what
of
voluntary
been
of
"invoked
84
Fourth
waiver
F.3d at
waiver
and
to
239
filing
Va.
has
The
discussing
a
cites
Supp.
(E.D.
Co.,
Virginia
its
(1907)).
right
that
filing
constitutes
the
had
of
373
its
F.
Merchant's
filing
of
F.
that
286
of
plaintiff
308
action,
286,
the
Rainero
crossclaim
to
same
(quoting
204
451
Corp.,
defendant
the
Sons,
Inc.,
right
action
the
in
("Suffice
or
and
the
constituted
also
Co.
the
support,
court
Perdue,
counterclaim
In
necessarily
state
Sood,
constitute
Elec.
removal.
to
held
it."
claim
2011,
prior
court
the
has
4,
days
this
removal
to
court
eight
filing
Techniques
counterclaim
submitted
this
defendant's
In
1969).
of
J.
2011,
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to
the
Computer
jurisdiction
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right
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right
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argues
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the
waiver.
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and
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of
Order
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149
proper
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laid
out
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namely
59
No.
"permissive
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unequivocal'
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ECF
F.3d
inquiry
Grubb,
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distinction
when
Aqualon,
a
mandates
2-3,
this
cross-claims
more
Grubb,
to
not
pleading,"
pleadings
e.g.,
Circuit
court."
in
on
Answer
and
case
the
to
submitted
July
Mot.
2011,
that
Counterclaim
of
to
intent
(quoting
Other
27,
state
a
Agreed
6,
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the
state
Remand
July
in
the
such
July
15,
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on
on
stated
and
and
later,
support
plaintiff's
jurisdiction"
Non-Suit
days
to
removal
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twelve
this
Relief,
court
personam
Supp.
Mot.
not
and
The
Fourth
acceded
state
Fourth
is
to
Rothner,
1416).
facts
defendant
does
See,
demonstrated
879
the
the
of
claim
"offensive
"offensive"
defenses").
defendant
in
of
counterclaims
by
counter
an
Supp.
waiver.
expressly
remain
law
however,
"defensive"
"a
instead
standing
Reply
that
M
Relief,
finding.
Order
2011,
and
both
made
defendant
court.
3-4,
of
Non-Suit
entered
the
No.
ECF
"the
Br.
in
15;
Ex.
1,
2011,
the
defendant
court,
but
with
no
by
case
accepted
Def.'s
ECF
The
No.
Agreed
1.
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filed
its
accompanying
Notice
of
filed in
Removal.
defendant's
would
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and
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defendant
permissive.4
the
requisite
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filing
clear
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at
intent'
squarely within the
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permissive
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citing
4
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remand
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the
plaintiff
out
of
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counterclaim
Rules
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together
accede
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or
only
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at
cause
all
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constitute
in
an
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jointly,
the
of Virginia.
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the
state
the
Westwood,
that
the
'clear
and
and
"falls
filing
automatic
option,
or
complaint."
a
situation,"
and
defendant
of
waiver,
Aqualon,
Defendant's
whether
and
in Grubb.").
Grubb
below.
that
in
to
"extreme
in
defendant's
mentioned
Supreme Court
Sood
demonstrates
recognized
opinions
action
voluntary
the
jurisdiction"
discussed
that
of
only
reflect
in
state
however,
plaintiffs
transaction
of the
of
was
well-established
appropriate
cases
rules
holdings
state
374-75
filing
equates
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Circuit's
court
availment
situation'
does
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and
action"
at
court
to
argue,
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prior
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state
Supp.
Counterclaim
("[I]t
in
defensive
Counterclaim
iji
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defendant
its
remain
541
to
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separately
compulsory,
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Virginia
voluntary
to
was
451
waive
court's
filing
cross-claim
unequivocal
not
then
over a week later.
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of
this
was
answer
Baldwin,
filing
intent
2d
an
would
defendant's
jurisdiction
2011,
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Given
Removal
4,
a
See
defendant's
Baldwin,
177
of
of
constitute
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alone
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plead
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properly
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Grubb,
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case
defendant
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affirm"
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have
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after
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officially
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removable.
district
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termed
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thus
no
before
petitioning.
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case
Store,
Inc.,
Va.
May
in
9,
No.
conduct
the
the
The
a
v.
state
(citing
809;
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to
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on
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Country
49186
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Country
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case
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773
the
court
stated
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same
F.
Supp.
issue
2011
if
U.S.
of
that
defendants
remove
language).
court's
the
an
may
While
this
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Va.
1991)
regards
LEXIS
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are
to
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unfavorable.
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concern
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in
underlying
results
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for
of
Id.
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from
merits
rationale
in
Id.
motions
description
waiver
in
court,"
case.
ultimate
806
this
issue
state
CBOCS's
the
to
characterized
preserve
distinguished
would
another
prior
actions
determination
In
LEXIS
court
taken
remanded
addressing
The
court"
at
measure
defendant's
Texaco,
J.) ,
demurrer.
supporting
the
The
place
264.
Barrel
actions
took
in
Barrel
Dist.
Cracker
defensive
at
Cracker
U.S.
pleadings
actually
F.3d
v.
2011
Court
defensive
actually
Counterclaim seeking declaratory judgment.
defendant
Krasnow
149
dismiss.
final
controversy,"
(Cacheris,
Id.
to
court
"seeking
The
of
this
inapposite
defendant's
to
protective
that
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ones
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defendant
measures
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J.) ,
the
any
Aqualon,
court,
motion
"a
event
again
at
as
filing
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(Hudson,
filed
a
Aqualon,
3:llcvl82,
2011)
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to
See
this
("CBOCS")
In
is
at
*16-17
certainly
well-founded
defendant
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alone,
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by
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signify
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court."
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this
for
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the
court
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facts
McWilliams:
and
(internal
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in
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marks
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806.
10
was
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U.S.
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which
case
intent
court's
answer
this
"It makes
unequivocal
in
claim
removal,
waived
demurrer,
factor
2011
"her
the
counterclaim
quotation
this
it
its
(Cacheris,
waiver
McWilliams
in
a
of
this
subsequently
to
of
that
filed
necessitates
defendant
file
of
2011)
defendant
in
the
against
I:llcv519,
removing
right
the
to
is
analyzing
that
clear
example,
Supp.
its
choice
Id.
subsequent
*5.
absence
7,
plaintiff
at
claim
demonstration
No.
July
before
the
cases,5
remand.
stated
court
cases,
of
the
assertion
Va.
state
waiver
and
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defendant
of
employed
5 For
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certain
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Broderick,
rationale
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v.
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McWilliams,
much
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Id.
to
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proper
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responding
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not
Id.
denied.
F.
does
73101
counterclaim
in
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state
McWilliams
the
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claim,
in
McWilliams,
court."
be
beyond
defendant's
LEXIS
provides
As
own
therefore,
decision
on
may
went
its
to
The
In
here
filed
intent
and
state
in
the
court's
Krasnow,
773
present
case,
intent,
as
the
the
facts
in
defendant
McWilliams
filed
after
filing her counterclaim.
Under
such
be
circumstances,
hard-pressed
part
contrast,
August
4,
here
2011,
Counterclaim
in
aware
suit
a
on
the
July
strict
15,
determination
of
in
that
defendant's
and
Sood
availing
demonstrated
court,
eight
and
days
a
clear
that
right
to
the
later,
determination.
for
and
is
removal
by
and
its
this
minutes"
original).
finding would
intent
not
wholly
of
in
on
the
the
subsequent
without
not
any
sufficient
proceedings
court
on
defendant.
11
the
to
the
becoming
the
of
a
of
remain
basis
of
of
similar
FINDS
in
state
Removal
factors
or
such
a
dissuade
the
the
jurisdiction
Notice
REMANDS
that
counterclaim
countervailing
to
non
of
court
court's
to
and
imply
light
voluntary
intent
other
the
intend
in
a
filing
after
dispositive
state
unequivocal
Removal
Answer
following
others,
filing
of
its
longer
removal
among
Notice
filing
still
does
is
actions
and
filed
for
Westwood,
the
factual
Nonetheless,
Accordingly,
further
"_90
in
unequivocal
after
court
test
itself
justification,
court
The
waiver.
holdings
the
days
eligibility
numerical
and
mere
(emphasis
making a
defendant
court,
2011.
*4
a
demonstrate
any direction.
the
state
not
removal
at
clear
eight
case's
of
in
Id.
court
determine
of the defendant
In
on
to
a
for
did
case
waiver
to
state
of
the
B.
Award of Costs
In
addition
requests
Motion,
costs
as
to
and
does
§
fees,
1447 (c) .
reasonableness
Corp.,
546
U.S.
courts
may
seeking
basis
removal.6
voluntary
district
counterclaim,
court
addressed
decision
directly
in
Absent
controlling
case
unreasonable.
See
supra
reasonable
to
See
note
this
§
on
the
Capital
was
right
Fourth
Circuit
to
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the
cannot
Muro
1.
12
be
and
a
has
itself.
This
on
Pharm.,
Inc.,
a
other
not
been
court's
its
facts,
removal.
defendant's
to
for
after
few
Circuit,
said
the
eligible
for the defendant's
precedent,
for
both
remove
distinguishable
the
reasonable
Here,
case
in
where
basis
objectively
the
the
the
grounds
reasonable
an
addressed
although
v.
Franklin
denied.").
Fourth
Kluksdahl
v.
turn
only
of
court
should
U.S.C.
1447(c)
that
the
28
under
be
within
McWilliams,
also provides
instant
by
including
removal."
fees
case may
circumstances,
when
while
expenses,
the
unusual
waiver
opinions
the
also
with
remanding the
Martin
agree
of
association
objectively
should
plaintiff
("Absent
Conversely,
issue
of
awarding
fees
an
defendant
The
for
(2005)
lacked
fees
and
result
removal."
141
in
and any actual
a
attorney's
removal.
plaintiff
the
the
132,
party
exists,
as
the
"An order
costs
standard
award
removing
just
of
remand,
fees
defendant.
incurred
"The
Fees
requesting
attorneys'
the
require payment of
attorney
and Attorneys'
removal
be
of
objectively
88 6
F.
Supp.
535,
540
and
fees
and not
(E.D.
for
the
the
is
1995)
the
of
Circuit,
a
Given
request
when
issued
request
only
for
court's
decision
costs
and
for
district
decisions
request
the
for
plaintiff's
case
had
plaintiff's
DENIED.
defendant's
(denying
removal
Fourth
Consequently,
fees
Va.
on
costs
to
attorneys'
courts,
the
and
costs
issue).
attorneys'
remand,
fees
is
the
also
DENIED.
Ill.
For
motion
the
to
requests
foregoing
remand
for
reasons,
and DENIES
costs
and
remanded to the Circuit
further proceedings.
and
to
Order
forward
to
all
a
IS
the
the
Court
court
GRANTS
plaintiff's
attorneys'
fees.
and
This
the plaintiff's
the
defendant's
case
parties
and
of
this
to
Beach,
is
ORDERED
for the City of Virginia Beach
The Clerk is DIRECTED to effect
copy
the City of Virginia
IT
Conclusion
the
Memorandum
Clerk
of
Opinion
the
Circuit
for
the
remand
and
Remand
Court
Virginia.
SO ORDERED.
/s/
Rebecca Beach Smith
United States District Judge
REBECCA
UNITED
Norfolk,
September
Virginia
Q\
,
2011
13
BEACH
STATES
SMITH
DISTRICT
JUDGE
for
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