Muncy et al v. Norfolk Southern Railway Company et al

Filing 19

MEMORANDUM OPINION AND ORDER granting Plaintiff's 1 MOTION to Remand as the matter was removed improvidently and without jurisdiction. The court REMANDS this action to the Circuit Court of McDowell County, WV, and DIRECTS the Clerk to remove t his matter from the court's active docket. Plaintiff's motion to recover all costs and fees incurred as a result of this removal is DENIED, for the court concludes that Defendant had a good faith, albeit legally insufficient, reason for removal. Signed by Senior Judge David A. Faber on 1/5/2017. (certified cc: counsel of record and Clerk, McDowell County Circuit Court) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
CARRIE MUNCY,
Guardian of Chris Collins, Jr.,
Plaintiff,
v.

CIVIL ACTION NO. 1:16-10762

NORFOLK SOUTHERN RAILWAY COMPANY,
a Virginia corporation,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s motion to remand the case
to state court.

See Doc. No. 1.

The removal to federal court

took place after a year passed from the time that Plaintiff’s
complaint was filed.

This renders such removal presumptively

barred under 28 U.S.C. § 1446(c)(1): “A case may not be removed
. . . on the basis of jurisdiction conferred by section 1332
more than 1 year after commencement of the action[.]”

In order

to avoid § 1446(c)(1)’s one-year bar on removal, Defendant must
affirmatively prove that “the plaintiff has acted in bad faith
in order to prevent a defendant from removing the action.”

28

U.S.C § 1446(c)(1) (emphasis added).
The broader question, then, is: What constitutes “bad
faith” under § 1446(c)(1)?

The narrower question is whether

Plaintiff’s conduct constitutes “bad faith.”

Id.

Under this

District’s jurisprudence, “[i]f a defendant wants the removal to
stick, then he or she should be able to show either: (i) that
the plaintiff did not litigate at all, or engaged in a mere
scintilla of litigation against the removal spoiler; or (ii)
that the defendant has strong, unambiguous evidence of the
plaintiff’s subjective intent, for which the plaintiff cannot
offer any plausible alternative explanation.”

Ramirez v.

Johnson & Johnson, 2015 U.S. Dist. LEXIS 102967, *11—12 (S.D.W.
Va. 2015) (internal citations and quotation marks omitted)
(emphasis added).
Demonstrating such a high burden is an “arduous” and
demanding task.

Ramirez at *7.

And rightly so, for “bad

faith,” as a legal term of art, is a serious accusation to be
leveled and requires much more than a circumstantial pattern of
conduct or omission(s).

Here, so long as there is “any non-

token amount of discovery or other active litigation against”
the City of War and Michael Bailey, which were non-diverse
defendants, a remand is proper.

Id. at *11.

The court finds

that Plaintiff actively litigated her claims against the City of
War even after the one-year anniversary lapsed and that
Plaintiff did not act in bad faith within the meaning of 28
U.S.C. § 1446(c)(1).

See Doc. No. 8.

Accordingly, the court

mandates that the case be remanded to state court.

Plaintiff’s motion to remand is GRANTED, as the matter
was removed improvidently and without jurisdiction.

The court

REMANDS this action to the Circuit Court of McDowell County,
West Virginia, and DIRECTS the Clerk to remove this matter from
the court’s active docket.

Plaintiff’s motion to recover all

costs and fees incurred as a result of this removal is DENIED,
for the court concludes that Defendant had a good faith, albeit
legally insufficient, reason for removal.
The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to counsel of record.

The Clerk is

also directed to forward a certified copy of this Memorandum
Opinion and Order to the Clerk of the Circuit Court of McDowell
County, West Virginia.
IT IS SO ORDERED this 5th day of January, 2017.
ENTER:

David A. Faber
Senior United States District Judge