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Michael Lang, et al v. James Mattison

May 14, 2013

MICHAEL LANG, ET AL., PLAINTIFFS/COUNTERCLAIM DEFENDANTS,
v.
JAMES MATTISON, ET AL.,
DEFENDANTS/COUNTERCLAIM PLAINTIFFS.



MEMORANDUM OPINION AND ORDER

This matter is pending for consideration of the motion to remand by Plaintiffs and Counterclaim Defendants Michael Lang, Bobie Patton, and Sunrise Automotive, LLC (collectively "plaintiffs"). [Record No. 5] For the reasons discussed below, the motion will be denied.

I.

Plaintiffs Michael Lang and Bobie Patton restore, market and refurbish vintage Pontiac Trans Ams through their business Sunrise Automotive, LLC ("Sunrise"). [Record No. 6, p. 1] Sunrise is a limited liability company, incorporated and formed pursuant to Kentucky law. Lang and Patton are both citizens and residents of Laurel County, Kentucky. [Record No. 1-2, p. 1] Defendant James Mattison is a citizen of Michigan. He also restores and markets classic cars through a Michigan corporation, PHS Muscle Cars, LLC ("PHS"). [Id.] Additionally, Mattison is involved in a separate Michigan corporation, Pontiac Historic Services, which authenticates vintage cars by providing historical background and VIN numbers. [Id.]

This matter stems from transactions between these parties and "other car enthusiasts." [Record No. 6, p. 2] The Complaint alleges that, over the past two years, Sunrise "has been operating under an oral agreement with [Pontiac] for both the purchase of automotive bodies, parts and supplies as well as the advertising and sales of its Trans Ams." [Record No. 1-2, p. 4] The plaintiffs allege that Defendant Mattison interfered in a deal that Sunrise had with a Trans Am owner to restore his vehicle. The plaintiffs assert that in December 2012, Mattison contacted the Trans Am owner and advised him that he was being "conned" by Sunrise, which caused the owner to cancel a contract with Sunrise without further payment. This restoration process would have been taped, and the plaintiffs contend that there were plans to air the restoration on a national cable channel.

On December 28, 2012, the plaintiffs filed this action, alleging breach of contract, common law defamation, and tortious interference. And on January 7, 2013, the plaintiffs filed a First Amended Complaint regarding additional transactions between the parties. They added a claim for "Breach of Contract - Quantum Meruit." [Record No. 1-3, p. 3] The defendants answered and counterclaimed, requesting an accounting and asserting claims for: breach of fiduciary duties; fraudulent or negligent misrepresentation; breach of contract; and conversion. Additionally, they requested an award of punitive damages. [Record No. 1-4] Following the filing of their answer and counterclaim, the defendants removed the action to this Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332. After the plaintiffs filed the motion to remand, the defendants filed an Amended Notice of Removal. [Record No. 8]

The plaintiffs seek to remand the case to state court for two reasons. First, they argue that the defendants have failed to perfect removal in accordance with the procedural requirements of 28 U.S.C. § 1446(a) and (d). The plaintiffs also argue that by filing the counterclaim, the defendants waived removal and submitted to the jurisdiction of the state court.

II.

The statute authorizing removal, 28 U.S.C. § 1441, provides that an action is removable only if it could have been brought initially in federal court. In determining the appropriateness of remand, a court must consider whether federal jurisdiction existed at the time the removing party filed the notice of removal. Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996). Although a district court must remand a case if it lacks subject matter jurisdiction, the court is not required to raise issues of timeliness or other procedural requirements sua sponte. See, e.g., May v. Johnson Controls, Inc. 440 F. Supp. 2d 879, 881 (W.D. Tenn. 2006). Instead, the burden is on the non-removing party to raise these arguments within thirty days of the filing of the notice of removal. 28 U.S.C. § 1447(c); see Grudzinski v. Staren, 87 F. App'x 508, 512 (6th Cir. 2004) (noting that "untimely removal is a procedural rather than a jurisdictional defect").

Once the non-removing party moves to remand based on a procedural defect, the statutory procedures for removal are to be strictly construed and any doubts concerning jurisdiction should be resolved in favor of remand. Sygenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Her Majesty the Queen in Right of Province of Ontario v. Detroit, 874 F.2d 332, 339 (6th Cir. 1989).

III.

A. Removal Requirements

As an initial matter, the Court must address whether this action should be remanded because the defendants failed to perfect removal in accordance with 28 U.S.C. § 1446. The plaintiffs allege that the defendants failed to: (1) file a copy of the notice with the clerk of the State court, as required by 28 U.S.C. 1446(d); (2) attach a copy of the summons to the notice of removal; and (3) adequately allege diversity of citizenship, by mentioning only Mattison's residence.

1. Notifying State Court of Removal

The first defect in removal is the defendant's failure to file a notice of removal with the Laurel County Circuit Court upon removal of the action to federal court. However, the defendants assert that they filed a notice of removal with the state court on March 25, 2013, after realizing that they failed to do so when the action was first removed on February 20, 2013. Thus, they argue that any "concurrent jurisdiction" ...


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