Baker et al v. Green Tree Servicing LLC
Filing
79
MEMORANDUM OPINION AND ORDER: denying Plaintiffs' 77 MOTION to Remand to Circuit Court; directing Plaintiffs to file a petition pursuant to W.Va. Code Section 44-10-14 within 30 days of the entry of this order. Signed by Judge Thomas E. Johnston on 4/24/2012. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
KAITLIN BLACKBURN BAKER, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 5:09-cv-00332
GREEN TREE SERVICING LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Plaintiffs’ Motion to Remand [Docket 77]. For the following
reasons, the motion is DENIED.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On February 25, 2009, Plaintiffs Kaitlin Blackburn Baker, Cassandra Blackburn, and Tyler
Blackburn filed their complaint in the Circuit Court for Raleigh County, West Virginia, alleging
fourteen violations of the West Virginia Consumer Credit and Protection Act. (Docket 1-1.)
Defendant Green Tree Servicing removed the case to this Court on April 2, 2009, asserting diversity
of citizenship as the basis for federal subject matter jurisdiction. (Docket 1.) No motion to remand
was filed at that time. On March 31, 2010, the Court ordered arbitration in accordance with the
terms of the contract at issue and the Federal Arbitration Act. (Docket 70.) On August 1, 2011, the
parties informed the Court that this case had been compromised and settled, and accordingly, the
Court dismissed the case with prejudice. (Docket 71.) Four months later, Plaintiffs filed a motion
to restore the case to the Court’s active docket to pursue an infant settlement proceeding in
accordance with W. Va. Code § 44-10-14. (Docket 73.) The Court granted the motion and restored
the case to its active docket. (Docket 75.) Rather than file the petition for approval of the infant
settlement in this Court, however, Plaintiffs chose to file the instant motion to remand to state court
for settlement approval. (Docket 77.)
II. DISCUSSION
In their motion to remand and supporting memorandum, Plaintiffs state that the case should
be remanded because state courts are better suited to protect minors. Plaintiffs also argue that they
mistakenly initiated an infant settlement proceeding in circuit court and that the state court should
therefore conclude the proceeding. (Docket 77 at 1-2.) Even assuming the Court agreed with
Plaintiffs that state courts are better suited to protect minors, it is bound by the “virtually unflagging
obligation . . . to exercise the jurisdiction given [it].” Colo. River Water Conserv. Dist. v. United
States, 424 U.S. 800, 817 (1976). Federal courts “have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not.” Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 404 (1821). Plaintiffs cite no basis for relinquishing jurisdiction in this case other than
convenience and general, unsupported policy claims. The Court can fathom no rationale for
remanding this case to state court; no abstention doctrine applies and the Court retains subject matter
jurisdiction. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (subject
matter jurisdiction of federal courts on removal is determined at time of removal). Accordingly, the
motion to remand is DENIED.
III. CONCLUSION
Pursuant to the foregoing discussion, the motion to remand is DENIED. Plaintiffs are
DIRECTED to file a petition pursuant to W. Va. Code § 44-10-14 within 30 days of the entry of
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this order. A separate order will enter after the petition is docketed, setting a hearing date and
appointing a guardian ad litem to represent the minor in this case. The Court recognizes that reappointment of the same guardian ad litem appointed by the state circuit court may facilitate the
infant settlement in federal court, and accordingly, Plaintiffs may recommend the appointment of
a specific guardian ad litem to the Court in the petition.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
April 24, 2012
_________________________________________
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE
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