Bailey v. Spangler
Filing
22
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/05/2015. (tjoh, )
p
'j
OCT - 5 •
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK. U S
1'iSTHiC.
RlCHr-'GIvD
MALVA BAILEY,
Plaintiff,
V.
Civil Action No.
CONRAD SPANGLER,
3:14cv556
DIRECTOR
OF THE VIRGINIA DEPARTMENT
OF MINES,
MINERALS AND ENERGY,
Defendant.
MEMORANDUM OPINION
This
matter
is
REMAND AND COSTS,
§
1447(C)
before
the
court
on
PLAINTIFF'S
INCLUDING ATTORNEY FEES,
(Docket No.
20).
MOTION
FOR
PURSUANT TO 28 U.S.C.
For the reasons set forth below,
the
motion will be granted in part and denied in part.
BACKGROUND
I.
Factual Background
On
May
severing
5,
the
1887
George
mineral
estate
conveying ''all the coal,
iron,
ores
and
and
certain
minerals
tract
of
lying
land"
(Docket No.
5-1,
5-2) .
executed
deed
whereby
a
to
W.
Sutherland
under
his
executed
surface
petroleum oil and
being
in
the Virginia
upon
and
Coal
and
a
estate
[gas]
under
Coke
deed
and
and other
all
that
Company.
On May 10, 1983, Malva Bailey (''Bailey")
she
purchased
the
surface
estate
once
owned
by
the
Sutherlands.
(Docket
No.
3-1).
discussed the ownership of the mine voids,
Neither
deed
which are spaces on
passageways that resulted from the mining of the sub-surface of
coal by the owner of the mineral estate.
The Complaint
2012,
Conrad Spangler
Commonwealth
of
Energy,
Company,
LLC,
13720
alleged
[mining
AB."
violation
permits]
mining
§§ 42.1-181,
constituted
Department
(Complaint,
those
an
the
Fifth
and
that
No.
were
Mines,
Minerals
Dickenson-Russell
1-3
at
issued
taking
of
Fourteenth
1
1).
Coal
Bailey
pursuant
private
to
Va.
(Docket No.
in fact,
property
Amendments
1-3
to
in
the
2-3) .
after conducting extensive discovery.
Dickenson-Russell had not,
and
She claimed that these actions
Constitution of the United States.
However,
9,
under permit numbers 14632AB
permits
55-154.2.
of
to
Docket
unconstitutional
of
some point after April
who was the Director of the
[''Dickenson-Russell"]
that
Code Ann.
at
C'Spangler") ,
Virginia's
^'issued
and
alleged that,
Bailey found
trespassed on her land
or attempted to make use of her mine voids pursuant to the above
permits.
(Docket
agreed that
Va.
retroactively
(Docket
No.
20,
Code Ann.
to
12,
No.
reach
at
1).
SISI
§§
10-12).
42.1-181,
severance
Thus,
void rights has been undisrupted.
55.154-2
deeds
Bailey's
Id.
Furthermore,
Spangler
did not
such
enjoyment
as
of
apply
Bailey's.
her
mine
II.
Procedural History
Bailey filed a Complaint in the Circuit Court of the City
of
Richmond.
(Docket
No.
unconstitutional
takings
the
1-3).
Fourteenth
Fifth
and
Constitution
and
VIRGINIAL ACTS
reenact
§§
claim pursuant
OF ASSEMBLY
and
a
-
Complaint
to
Amendments
requested
45.10181
The
42
of
2012
of
the
unconstitutional on its face and as applied.
Spangler
filed
DEFENDANT
PLAINTIFF'S COMPLAINT.
briefed
the
motion,
it
of
both motions.
Therefore,
Supreme
Court
and
issued
its
Thereafter,
the
was
parties
and
695,
amend
and
Virginia
at SISI 1,
3.
(Docket No.
MOTION
TO
is
1) .
DISMISS
After the parties fully
obvious
central
that
to
the
the
correct
resolution
of
this Court certified two questions to
Virginia
opinion
2).
became
55-154.2
of
SPANGLER'S
(Docket No.
interpretation
the
§
CONRAD
of
Id.
Spangler removed the case to this Court.
to
an
States
CHAPTER
An Act
Code
§1983
United
that
SESSION,
55-154.2
U.S.C.
the
declaration
alleged
on
which
May
were
5,
accepted
2015.
directed
the
certification
(Docket
to,
and
No.
did
10).
submit,
positions on the status of the motion in light of the decision
of the Supreme Court of Virginia.
(Docket Nos.
11,
12,
13).
Based on the resolution of the two certified questions by
the
Supreme
Court
Opinion on June
(Docket
No.
4,
14).
of
Virginia,
2015,
Since
this
Court
issued
denying Spangler's Motion
that
time,
however,
it
a
Memorandum
to
has
Dismiss.
become
apparent
taking,
that
Bailey
has
not
suffered
an
and that Dickenson-Russell has not,
in fact,
on her land,
and consequently.
Bailey lacks
her claims.
(Docket No.
10-12).
a
Motion
Seeking
under 28 U.S.C.
20,
Remand
and
§ 1447(c).
Costs,
unconstitutional
trespassed
standing to pursue
Therefore,
Bailey filed
Including Attorneys'
(Docket No.
Fees,
20).
DISCUSSION
The parties agree that the case should be remanded because
Bailey does not have standing,
have subject matter
question
that
and therefore this Court does not
jurisdiction in this
remains
to
be
resolved
entitled to costs and attorneys'
For
the
reasons
set
forth
case.
is
Thus,
whether
Bailey
fees under 28 U.S.C.
below,
the only
is
§ 1447(c).
the
Court
holds
that
'Ma]n
order
remanding
she
is
not.
I.
28 U.S.C.
Under
may
1447(c)
U.S.C.
require
including
The
fees
should
§
payment
attorney
Supreme
unusual
§
28
Court
turn
reasonable
has
on
only where
basis
of
just
fees,
circumstances,
1447(c)
1447(c),
for
costs
incurred as
stated
the
a
may
removing
seeking
any
result
^'the
reasonableness
courts
the
that
and
expenses,
of
removal."
the
for
awarding
removal.
Absent
award
attorneys'
party
lacked
removal.
case
actual
standard
of
the
an
fees
under
objectively
Conversely,
when
an
objectively
Martin
v.
reasonable
Franklin
to
deter
exists,
Capital
When applying this
desire
basis
test,
Corp.,
546
district
removals
sought
fees
U.S.
courts
for
should
be
132,
141
Congress'
right to remove as a
of costs
and
fees
basic
the
decision
purpose
to
of
afford
general matter[.]"
under this
such an award is just."
Id.
(2005).
''should recognize the
prolonging
litigation and imposing costs on the opposing party,
undermining
denied."
Id.
while not
defendants
at 140.
a
An award
section should be made
''only when
at 138.
A. Objectively Reasonable Basis for Removal
At
the
time
reasonable basis
not
entitled
claim,
as
has
federal
for
to
42
law.
that
her
1983.
Under
jurisdiction
as
the
court."
to
she
it
is
could not
is
clear
based
on
an
fees.
28
Bailey's
federal
law,
U.S.C.
§
this
claims
court
28 U.S.C.
1331,
arising
has
under
removal
"originally could have
§
(1987).
1441(a);
face
"violation
Caterpillar
Bailey does not try
have originally
from the
single
under
hear
action
objectively
and therefore Bailey is
district
a
here,
had
solely
482 U.S. 385, 392
court;
claim
§
arose
Moreover,
Inc. V. Williams,
federal
attorneys'
pled,
been filed in federal
to contend that
and
U.S.C.
original
Spangler
removing the case,
costs
jurisdiction where,
in
removal,
initially
specifically,
Court
of
of
filed
of
her
the
this
claim
Complaint
Fifth
and
Fourteenth
Amendments
(Docket No.
1-3,
to
law
federal
to
SI 2) .
on
Constitution
Thus,
the
face
of
the
United
States."
based on the explicit references
of
Bailey's
complaint,
Spangler's
removal was objectively reasonable.
Bailey
argues
that,
because
Spangler
filed
a
motion
to
dismiss based on lack of standing immediately after removing the
case to this Court,
removal.
the
(Docket
removal
in
Ins.
SI
to
ask
2014
Homes
a
was
It
WL
2008
both
court
See,
(D.
WL
reasonable basis for
argument
by
common
to
8,
objectively
issue
Coleman
Apr.
23,
even though plaintiffs lacked standing,
not entitled to attorneys'
fees
under §
1447(c)
of
Lincoln Nat.
2014);
(W.D.N.C.
entirely
the
v.
because
question
an
and
Higdon
Dec.
1848653
is
resolve
e.g.,
Md.
fails
federal
jurisdictional,
is
federal
6951290
This
justified
albeit
removal.
Corp.,
(holding that
16).
case
Standing,
following
Co.,
Beazer
20,
proposition.
reasonable
standing
No.
this
jurisdiction.
different
he could not have had a
v.
2008)
they were
because removal
was not objectively unreasonable).
In other cases
and
attorneys'
plaintiff's
in this
fees
complaint
federal
jurisdiction.
Corp.,
2010
(holding
that
WL
circuit where courts
under
that
See,
3603784,
attorneys'
§
1447 (c) ,
there
e.g.,
at
fees
was
it
no
have awarded costs
was
clear
colorable
Int'l Legware Grp.
*3-4
(E.D.N.C.
Sept.
were
justified
under
from
the
basis
for
v.
Americal
8,
§
2010)
1447(c)
because
the
well-pleaded
state law") ;
complaint
Beaufort Cty.
School Dist.
519 F. Supp. 2d 609,
to
plaintiffs
contract
Gibson
(holding
§
under
case
v.
had
that
of
a
for
is
F.
was
best,
668
provides
See,
e.g.,
(E.D.
Va.
Fourteenth
an
Amendments),
and
presence
Va.
1993)
fees
attorneys'
to
of
diversity) •,
(S.D.W.
have
under
well-settled
of
a
declined
objectively
Inc.
Here,
(namely,
of
breach
federal
to
award
because even the possibility
Fastmetrix,
solely under federal law
and
the
in
lack
349
to
courts
2013).
fees
''contrary
fees under this section,
question
Co.,
defendant
entitled
was
upon
Ins.
347,
even where
at
United Nat.
obvious
Supp.
removal
dubious
removal.
2d
822
exclusively
(awarding attorneys'
where
despite
Conversely,
federal
Supp.
1447(c)
plaintiff
authority").
attorneys'
§
because
V.
(D.S.C. 2007)
removed
Tinkey,
1447 (c)
question
617
''relie[d]
v.
the
42 U.S.C.
reasonable
ITT
Corp.,
claims
basis
924
F.
clearly arose
§ 1983 and the Fifth
therefore,
Spangler's
removal
was objectively reasonable.
B. Unusual Circiuastances
Second,
Bailey
circumstances"
"Mr.
warranting
Spangler
interpretation
argues
took
of
the
an
an
1981
that
this
award
of
extreme
law
that
case
presents
attorneys'
position
would
fees
''unusual
because
regarding
have
deprived
the
Ms.
Bailey and thousands of other property owners of their rights."
(Docket No.
Spangler
20,
points
precedent.
Case No.
nearly
SI 17) .
out,
This argument is also unavailing.
his
See Horton v.
CLll-65)
so
position
or
supported
Knox Creek Coal Corp.
(Docket No.
^'extreme"
was
5-3).
''unusual''
by
Virginia
(Russell Cty.
Spangler's argument was not
as
to
constitute
''prolonging
litigation and imposing costs on the opposing party."
540
U.S.
at
attorneys'
140.
Therefore,
As
Bailey's
request
for
Martin,
costs
and
fees will be denied.
CONCLUSION
For
AND
the
COSTS,
1447(C)
motion
foregoing
INCLUDING
(Docket
for
No.
remand.
reasons,
ATTORNEY
20)
will
PLAINTIFF'S
FEES,
be
Accordingly,
PURSUANT
granted
the case
with
is
the Circuit Court for the City of Richmond.
for costs and attorneys'
It
is
so
MOTION
TO
FOR
REMAND
28
U.S.C.
respect
to
hereby REMANDED to
Plaintiff's request
fees will be denied.
ORDERED.
/s/
Robert E.
Payne
Ml-
Senior United States District Judge
Richmond,
Date:
Virginia
October 5,
2015
the
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