Hard Rock Exploration, Inc. et al v. Huntington Bancshares Incorporated et al
Filing
41
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTIONS TO REMAND, DENYING WITHOUT PREJUDICE PLAINTIFFS' MOTION TO SUBSTITUTE COUNSEL AND DEFENDANTS' MOTION TO DISMISS, DENYING PLAINTIFFS' REQUEST FOR ATTORNEY'S FEES AND CO STS AND DENYING PLAINTIFFS' MOTION TO STAY PROCEEDINGS ON THE MOTION TO DISMISS: It is ORDERED that 7 Motion to Remand is GRANTED; 10 Motion to Remand is GRANTED; 13 Motion to Join is GRANTED; 33 Motion to Substitute Counsel is DENI ED WITHOUT PREJUDICE; 36 Motion to Dismiss is DENIED WITHOUT PREJUDICE; 38 Motion to Join is GRANTED; Motion for Attorney's Fees and Costs is DENIED; and 39 Motion to Stay is DENIED. It is ORDERED that this civil action be REMANDED to the Circuit Court of Monongalia County, West Virginia and DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 4/20/16. (copy Circuit Court of Monongalia Co., WV)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
HARD ROCK EXPLORATION, INC.,
CARALINE ENERGY COMPANY,
BLUE JACKET GATHERING, LLC,
BLUE JACKET PARTNERSHIP,
BROTHERS REALTY, LLC,
JAMES STEPHENS, JR.,
MONICA FRANCISCO,
DUANE YOST and
GREGORY LAUGHLIN,
Plaintiffs,
v.
Civil Action No. 1:16CV46
(STAMP)
HUNTINGTON BANCSHARES INCORPORATED,
THE HUNTINGTON NATIONAL BANK
and CHAD PRATHER,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ MOTIONS TO REMAND,
DENYING WITHOUT PREJUDICE
PLAINTIFFS’ MOTION TO SUBSTITUTE COUNSEL
AND DEFENDANTS’ MOTION TO DISMISS,
DENYING PLAINTIFFS’ REQUEST FOR
ATTORNEY’S FEES AND COSTS AND
DENYING PLAINTIFFS’ MOTION TO STAY
PROCEEDINGS ON THE MOTION TO DISMISS
I.
Background
This civil action was removed to this Court from the Circuit
Court of Monongalia County, West Virginia.
The defendants removed
this action on the same date that the state court issued a
temporary restraining order.
Plaintiffs Hard Rock Exploration,
Inc., Caraline Energy Company, Blue Jacket Gathering, LLC, Blue
Jacket Partnership, and Brothers Realty (collectively, “Hard Rock
Entities”) are business entities affiliated with plaintiff Hard
Rock Exploration, Inc., which engages in oil and gas development.1
Plaintiffs James Stephens, Jr., Monica Francisco, Duane Yost, and
Gregory Laughlin (collectively, “principals”) are shareholders of
plaintiff Hard Rock Exploration, Inc.
In the complaint, the Hard
Rock Entities allege that they borrowed money from the defendants
so as to pursue oil and gas operations.
lending
relationship,
however,
the
Several years into the
plaintiffs
claim
that
the
defendants changed the terms of the lending agreements, such as
requiring personal guarantees on the loans.
allege
that
they
were
fraudulently
The plaintiffs then
induced
to
agree
to
a
forbearance agreement, or else face an acceleration of the loans.
Pursuant to that agreement, the plaintiffs released the lenders,
officers, and other related employees of any claims.
Further, the
plaintiffs assert that the defendants seek to surrender life
insurance policies owned by the principals as collateral for the
loans.
Based
on
the
conduct
discussed
above
and
other
similar
assertions, the plaintiffs set forth eight counts against the
defendants,
which
are
the
following:
1
(1)
Count
I,
fraud
by
The Hard Rock Entities are all citizens of West Virginia.
Plaintiffs James Stephens, Jr. (“Stephens”), Monica Francisco
(“Francisco”), and Gregory Laughlin (“Laughlin”) are citizens of
West Virginia, and plaintiff Duane Yost (“Yost”) is a citizen of
Pennsylvania. Further, the Huntington defendants are citizens of
Ohio and West Virginia, and defendant Chad Prather (“Prather”) is
a citizen of West Virginia.
2
defendants
Huntington
Bancshares
and
Prather;
(2)
Count
II,
interference with business relations by defendants Huntington
Bancshares and Prather; (3) Count III, breach of implied covenant
of good faith and fair dealing by defendant Huntington Bancshares;
(4)
Count
IV,
breach
of
contract
by
defendant
Huntington
Bancshares; (5) Count V, economic duress by defendant Huntington
Bancshares; (6) Count VI, breach of fiduciary duty by defendants
Huntington Bancshares and Prather; (7) Count VII, demand for
injunctive relief against defendant Huntington Bancshares; (8)
Count VIII, accounting against defendant Huntington Bancshares.
ECF No. 29.
Following removal of this civil action, this Court conducted
two
status
and
scheduling
conferences
concerning
a
possible
standstill agreement, which related to certain aspects of the
temporary restraining order, such as the life insurance policies.
See ECF No. 27.
After attempting to meet and confer, the parties
indicated that they could not come to an agreement.
Accordingly,
this Court entered a standstill order, which currently remains in
effect.
ECF No. 26.
At issue now are the following motions: (1) plaintiff Yost’s
motion to remand (ECF No. 7); (2) the Hard Rock Entities’ motion to
remand (ECF No. 10); (3) plaintiff Laughlin’s motion to join
plaintiff Yost and Hard Rock Entities’ motions to remand (ECF No.
13); (4) the Hard Rock Entities’ motion to substitute counsel (ECF
3
No. 33); (5) the defendants’ motion to dismiss (ECF No. 36); (6)
plaintiff Laughlin’s motion to join in the replies to the motion to
remand (ECF No. 38); and (7) the plaintiffs’ motion to stay
proceedings on the defendants’ motion to dismiss.
In plaintiff Yost’s motion, he asserts that defendant Chad
Prather is a citizen and resident of West Virginia.
ECF No. 7.
Because defendant Prather is a non-diverse party, plaintiff Yost
contends that this Court lacks jurisdiction.
Further, as to the
defendants’ assertions of fraudulent joinder, plaintiff Yost claims
that Counts I, II, and VI against defendant Prather are adequately
pleaded and are viable.
In addition to plaintiff Yost’s motion, the Hard Rock Entities
filed a motion to remand.
ECF No. 10.
The Hard Rock Entities
first assert that the defendants have not satisfied the fraudulent
joinder standard.
Therefore, because the parties are not diverse
due to defendant Prather’s citizenship, they believe that this
action should be remanded.
contend
that
the
Furthermore, the Hard Rock Entities
defendants
waived
any
right
submitting to the state court’s jurisdiction.
to
removal
by
In support of that
contention, the Hard Rock Entities point out that the defendants
participated in the state court hearings concerning the temporary
restraining order, which occurred prior to removal.
Finally, the
Hard Rock Entities believe that they are entitled to attorney’s
4
fees.
Plaintiff Laughlin filed a motion to join in the Hard Rock
Entities and plaintiff Yost’s motions to remand.
ECF No. 13.2
Defendants Huntington Bancshares Incorporated and Huntington
National
Bank
opposition.
defendants
plaintiffs.
(“Huntington
ECF
point
No.
to
32.
defendants”)
a
response
that
response,
the
forbearance
the
In
filed
agreement
signed
in
Huntington
by
the
According to that agreement, the plaintiffs have
allegedly waived their claims against defendant Prather. Moreover,
the Huntington defendants point to the counts alleged against
defendant Prather, and then contend that each count lacks merit.
The Huntington defendants then assert that they did not waive their
right to remove the action.
The Hard Rock Entities filed a reply.
ECF No. 34.
In their
reply, the Hard Rock Entities first argue that the forbearance
agreement is unenforceable.
possibility
exists
that
Moreover, they argue that at least a
they
will
prevail
on
their
claims.
Therefore, any allegation of fraudulent joinder is defeated.
The
Hard Rock Entities then assert that the defendants waived their
removal rights.
Finally, the Hard Rock Entities argue that they
are entitled to fees and costs.
Plaintiff Laughlin filed a motion
to join in the Hard Rock Entities’ reply.
2
ECF No. 38.
It should be noted, however, that plaintiffs Monica Francisco
and James Stephens, Jr. did not file motions to remand.
They
appear to be represented by counsel.
5
After filing the motions to remand and accompanying filings,
the
parties
filed
the
following
motions:
(1)
the
Hard
Rock
Entities’ motion to substitute counsel; (2) the defendants’ motion
to dismiss; and (3) the plaintiffs’ motion to stay proceedings on
the defendants’ motion to dismiss.
For
the
reasons
set
forth
below,
this
Court
makes
the
following rulings: (1) plaintiff Duane Yost’s motion to remand (ECF
No. 7) is GRANTED; (2) plaintiffs Blue Jacket Gathering, LLC, Blue
Jacket Partnership, Brothers Realty, LLC, Caraline Energy Company,
and Hard Rock Exploration, Inc.’s motion to remand (ECF No. 10) is
GRANTED; (3) plaintiff Gregory Laughlin’s motion to join in the
motions to remand (ECF No. 13) is GRANTED; (4) plaintiffs Blue
Jacket Gathering, LLC, Blue Jacket Partnership, Brothers Realty,
LLC, Caraline Energy Company, and Hard Rock Exploration, Inc.’s
motion to substitute counsel (ECF No. 33) is DENIED WITHOUT
PREJUDICE; (5) defendants’ motion to dismiss (ECF No. 36) is DENIED
WITHOUT PREJUDICE; (6) plaintiff Gregory Laughlin’s motion to join
in plaintiffs’ reply memorandum (ECF No. 38) is GRANTED; (7) the
plaintiffs’ request for attorney’s fees and costs related to the
motion to remand is DENIED; and (8) the plaintiffs’ motion to stay
proceedings on the motion to dismiss is DENIED.
II.
Applicable Law
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
6
original jurisdiction over the matter.
28 U.S.C. § 1441.
Federal
courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
the
amount
in
controversy
exceeds
$75,000.00,
interests and costs pursuant to 28 U.S.C. § 1332(a).
exclusive
of
However, if
federal jurisdiction arises only by virtue of the parties’ diverse
citizenship, such an action “shall be removable only if none of the
. . . defendants is a citizen of the State in which such action is
brought.”
Tomlin
v.
Office
of
Law
Enforcement
Tech.
Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W.
Va. May 7, 2007).
The party seeking removal bears the burden of
establishing federal jurisdiction.
See In re Blackwater Security
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v.
Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.
1994).
Removal jurisdiction is strictly construed, and if federal
jurisdiction is doubtful, the federal court must remand.
Hartley
v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29
F.3d at 151.
Further, the court is limited to a consideration of facts on
the record at the time of removal.
See Lowrey v. Alabama Power
Co., 483 F.3d 1184, 1213–15 (11th Cir. 2007) (“In assessing whether
removal was proper . . . the district court has before it only the
limited universe of evidence available when the motion to remand is
7
filed.”); O’Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL
2551163 (N.D. W. Va. June 27, 2011); Marshall v. Kimble, No.
5:10CV127, 2011 WL 43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The
defendant’s removal cannot be based on speculation; rather, it must
be based on facts as they exist at the time of removal.”);
Fahnestock v. Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W.
Va. May 12, 2011) (“The amount in controversy is determined by
considering the judgment that would be entered if the plaintiff
prevailed on the merits of his case as it stands at the time of
removal.”)
(internal
citations
omitted).
Regarding
punitive
damages, the mere likelihood of punitive damages, without more,
does not give rise to federal jurisdiction.
Cunningham, 2011 WL
1831596, at *2 (citing Landmark Corp. v. Apogee Coal Company, 945
F. Supp. 932 (S.D. W. Va. 1996)).
III.
Discussion
As discussed above, the two primary contentions raised by the
parties concern whether the defendants waived their right to remove
this civil action, and whether the plaintiffs fraudulently joined
defendant Prather.
order presented.
Those contentions are discussed below in the
This Court will then turn to the request for
attorney’s fees and costs and the other pending motions.
A.
Waiver of Removal Rights
Although an action may fall under federal jurisdiction, a
defendant can waive its right to remove that action.
8
The United
States Court of Appeals for the Fourth Circuit has held that a
defendant can waive its right to remove a case to federal court by
“demonstrating a clear and unequivocal intent to remain in state
court.”
Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir.
1991) (citing Rothner v. City of Chicago, 879 F.2d 1402, 1415 (7th
Cir. 1989)) (internal quotations omitted).
The Fourth Circuit,
however, noted that such a waiver should only be found in extreme
circumstances. Id. Phrased another way, before filing a notice of
removal, a “defendant may waive the right to remove by taking some
such substantial defensive action in the state court.” Aqualon Co.
v.
Mac
Equipment,
Inc.,
149
F.3d
262,
265
(4th
Cir.
1998).
Moreover, a court is justified in remanding an action based on
waiver by the “values of judicial economy, fairness, convenience,
and comity.”
Id. (citing Rothner, 879 F.2d at 1416); see Sayre
Enterprises, Inc. v. Allstate Ins. Co., 448 F. Supp. 2d 733, 735
(W.D. Va. 2006).
Generally, however, no waiver exists “short of
proceeding to adjudication on the merits.”
See
Beighley v.
F.D.I.C., 868 F.2d 776, 782 (5th Cir.1989); accord Wolfe v. WalMart Corp., 133 F. Supp. 2d 889, 893 (N.D. W. Va. 2001) (holding
that the defendant's filing of a motion for summary judgment in
state court constituted waiver); Labry v. I.R.S., 940 F. Supp. 148,
149 (E.D. La. 1996) (holding that answering a complaint does not
waive removal). “Thus, simply filing an answer, making preliminary
motions, and the like does not waive the right of removal.” Hingst
9
v. Providian Nat. Bank, 124 F. Supp. 2d 449, 451-52 (S.D. Tex.
2000).
In this case, the defendants did not waive their right to
remove this civil action. The defendants have neither demonstrated
an intent to waive such right nor taken “substantial defensive
action” in the state court.
Aqualon Co., 149 F.3d at 265.
Rather,
the defendants participated in the state court hearings regarding
the
plaintiffs’
request
for
a
temporary
restraining
order.
Participating in those hearings is a far cry from substantial
defensive action, let alone proceeding to adjudication on the
merits.
See, e.g., Rose v. Giamatti, 721 F. Supp. 906, 923 (S.D.
Ohio 1989) (finding that contesting a temporary restraining order
in state court and appealing the issuance of that order did not
amount to waiving the defendants’ removal rights). On the same day
that the state court issued the temporary restraining order, the
defendants timely removed this action, which cuts against any
argument regarding an intent to waive their removal rights.
With
those facts in mind, this Court also points out that the Fourth
Circuit has stated that a waiver of removal rights “should only be
found in extreme situations.”
Grubb, 935 F.2d at 59 (internal
citations and quotations omitted).
present.
Here, such a situation is not
Therefore, the defendants have not waived their right to
remove this civil action.
10
B.
Fraudulent Joinder
The doctrine of fraudulent joinder creates an exception to the
requirement of complete diversity. See Mayes v. Rapoport, 198 F.3d
457,
461
(4th
Cir.
1999).
Under
this
doctrine,
removal
is
permitted even if a non-diverse party has been named as a defendant
at the time the case is removed if the non-diverse defendant has
been fraudulently joined.
Id.
“This doctrine effectively permits
a district court to disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume jurisdiction
over a case, dismiss the nondiverse defendants, and thereby retain
jurisdiction.” Id. When fraudulent joinder is alleged, a court is
permitted to examine the entire record by any means available in
order to determine the propriety of such joinder.
Rinehart v.
Consolidation Coal Co., 660 F. Supp. 1140, 1141 (N.D. W. Va. 1987).
To establish fraudulent joinder, “the removing party must
demonstrate either ‘outright fraud in the plaintiff’s pleading of
jurisdictional
facts’
or
that
‘there
is
no
possibility
that
plaintiff would be able to establish a cause of action against the
in-state defendant in state court.’” Hartley v. CSX Transp., Inc.,
187 F.3d 422, 424 (4th Cir. 1999) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
fraudulent
joinder
places
Marshall, 6 F.3d at 232.
a
heavy
burden
on
the
A claim of
defendant.
“[T]he defendant must show that the
plaintiff cannot establish a claim against the nondiverse defendant
11
even after resolving all issues of fact and law in the plaintiff’s
favor. A claim need not ultimately succeed to defeat removal; only
a possibility of a right to relief need be asserted.”
233 (citations omitted).
Id. at 232-
“Once the court identifies this glimmer
of hope for the plaintiff, the jurisdictional inquiry ends.”
Hartley, 187 F.3d at 426 (emphasis added).
Therefore, in order to
successfully prove fraudulent joinder, a defendant must demonstrate
by clear and convincing evidence that, after resolving all issues
of fact and law in the plaintiff’s favor, the plaintiff has not
alleged any possible claim against the co-defendant. Rinehart, 660
F. Supp. 2d at 1141.
A non-diverse party named in the state court
action may be disregarded for determining diversity of citizenship
when the party’s joinder is fraudulent.
Mayes, 198 F.3d at 461.
Based on both the record and the law described above, the
defendants cannot succeed on their claim of fraudulent joinder.
The Fourth Circuit has expressly stated that a party asserting
fraudulent joinder must show that “no possibility” exists that the
plaintiff “would be able to establish a cause of action against the
in-state defendant in state court.”
Hartley, 187 F.3d at 424
(internal citations and quotations omitted).
have not satisfied that heavy burden.
Here, the defendants
The defendants contend the
following: (1) that the forbearance agreement at issue contains a
waiver of claims against defendant Prather; and (2) that the
plaintiffs cannot establish any causes of action against defendant
12
Prather.
Both
of
those
contentions,
however,
are
slightly
misguided.
Regarding the forbearance agreement, the plaintiffs assert in
their complaint that the agreement is unenforceable because they
were fraudulently entered into by the Hard Rock Entities.
No. 29 *16.
See ECF
Although the waiver contained within the agreement
could theoretically absolve defendant Prather from liability, such
a finding requires that the forbearance agreement first be deemed
valid and enforceable. The plaintiffs argue, however, that such an
agreement was fraudulently made and thus, the waiver should not
absolve defendant Prather of liability. The point is that, at this
very early stage of the pleadings, at least a “glimmer of hope”
remains
that
unenforceable.
the
forbearance
agreement
could
be
found
That means that the mere existence of the waiver
does not entirely foreclose the possibility of recovery by the
plaintiffs, at least at this stage in the civil action.
The same conclusion is reached concerning the plaintiffs’
specific claims against defendant Prather. As mentioned above, the
plaintiffs assert the following three specific causes of action
against
defendant
Prather:
(1)
fraud
concerning
the
various
transactions and forbearance agreement (Count I); (2) interference
with prospective business relations (Count II); and (3) breach of
fiduciary duty (Count VI).
ECF No. 29.
All three of those causes
of action, as pleaded in the complaint, exist in West Virginia.
13
See Dyke v. Alleman, 44 S.E.2d 587, 588 (W. Va. 1947) (allowing a
cause of action for fraud to exist when the fraudulent promise was
essentially equivalent to fraud in the inducement); Syl. Pt. 2,
Torbett v. Wheeling Dollar Savings & Trust Co., 314 S.E.2d 166 (W.
Va. 1983) (setting forth the elements of a prima facie case of
tortious interference with business relations); Wittenberg v. First
Indep. Mortg. Co., 2011 WL 1357483, at *18 (N.D. W. Va. Apr. 11,
2011) (citing Michael v. Wesbanco Bank, Inc., 2006 WL 2560108, at
*2-3 (N.D. W. Va. Sept. 1, 2006)) (noting that West Virginia
recognizes a fiduciary duty between a lender and borrower when a
special relationship has been established between them). Moreover,
to the extent that it may be argued that defendant Prather acted
within the scope of his authority as an agent for the Huntington
defendants, which could theoretically limit his liability, West
Virginia law clearly states the following:
An agent or employee can be held personally liable for
his own torts against third parties and this personal
liability is independent of his agency or employee
relationship.
Of course, if he is acting within the
scope of his employment, then his principal or employer
may also be held liable.
Syl. Pt. 3, Musgrove v. Hickory Inn, Inc., 281 S.E.2d 499 (W. Va.
1981).
After assessing the causes of action pleaded under the
complaint, the following is clear: at least a “glimmer of hope”
exists that the plaintiffs could prevail against defendant Prather.
Indeed, the Fourth Circuit has even stated that the standard for
fraudulent joinder is “even more favorable to the plaintiff than
14
the standard for ruling on a motion to dismiss under Fed. R. Civ.
P. 12(b)(6).”
Hartley, 187 F.3d at 424.
With that standard in
mind, and the fact that the defendants have not adequately shown
that
the
plaintiffs
have
no
possibility
of
recovery,
the
defendants’ claim of fraudulent joinder falls short.
C.
Request for Attorney’s Fees and Costs
In the motions to remand, the plaintiffs seek attorney’s fees
and costs. Under 28 U.S.C. § 1447(c), an “order remanding the case
may
require
payment
of
just
costs
and
any
actual
expenses,
including attorney fees, incurred as a result of the removal.”
In
Martin v. Franklin Capital Corp., the Supreme Court of the United
States held that “absent unusual circumstances, courts may award
attorney fees under the attorney fee provision of the removal
statute
only
where
the
removing
party
lacked
an
objectively
reasonable basis for seeking removal.” 546 U.S. 132 (2005). Here,
this Court finds that an award of attorney’s fees and costs is not
appropriate.
The defendants’ removal does not appear to have
lacked an objectively reasonable basis. Therefore, the plaintiffs’
request for attorney’s fees and costs is DENIED.
D.
Motion to Substitute Counsel, Motion to Dismiss, and Motion to
Stay Proceedings as to the Motion to Dismiss
It should be noted that the Hard Rock Entities filed a motion
to substitute counsel and that the defendants filed a motion to
dismiss.
ECF
Nos.
33
and
36,
15
respectively.
Further,
the
plaintiffs filed a motion to stay proceedings on the motion to
dismiss until this Court rules on the motion to remand.
39.
Hard
ECF No.
Based on this Court’s granting of the motion to remand, the
Rock
Entities’
motion
to
substitute
counsel
and
the
defendants’ motion to dismiss are DENIED WITHOUT PREJUDICE to refiling the same in the state court, if appropriate to do so.
Further, the plaintiffs’ motion to stay proceedings as to the
motion to dismiss is DENIED.
IV.
For
the
reasons
set
Conclusion
forth
above,
this
Court
makes
the
following rulings: (1) plaintiff Duane Yost’s motion to remand (ECF
No. 7) is GRANTED; (2) plaintiffs Blue Jacket Gathering, LLC, Blue
Jacket Partnership, Brothers Realty, LLC, Caraline Energy Company,
and Hard Rock Exploration, Inc.’s motion to remand (ECF No. 10) is
GRANTED; (3) plaintiff Gregory Laughlin’s motion to join in the
motions to remand (ECF No. 13) is GRANTED; (4) plaintiffs Blue
Jacket Gathering, LLC, Blue Jacket Partnership, Brothers Realty,
LLC, Caraline Energy Company, and Hard Rock Exploration, Inc.’s
motion to substitute counsel (ECF No. 33) is DENIED WITHOUT
PREJUDICE; (5) defendants’ motion to dismiss (ECF No. 36) is DENIED
WITHOUT PREJUDICE; (6) plaintiff Gregory Laughlin’s motion to join
in plaintiffs’ reply memorandum (ECF No. 38) is GRANTED; (7) the
plaintiffs’ request for attorney’s fees and costs related to the
motion to remand is DENIED; and (8) the plaintiffs’ motion to stay
16
proceedings as to the motion to dismiss (ECF No. 39) is DENIED.
Accordingly, it is ORDERED that this civil action be REMANDED to
the Circuit Court of Monongalia County, West Virginia.
It is
further ORDERED that this civil action be DISMISSED and STRICKEN
from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the Circuit Court of Monongalia County, West
Virginia and to counsel of record herein. Pursuant to Federal Rule
of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on
this matter.
DATED:
April 20, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
17
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