Opinion
CIVIL ACTION NO. 1:16-10762
01-05-2017
CARRIE MUNCY, Guardian of Chris Collins, Jr., Plaintiff, v. 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:
/s/_________
David A. Faber
Senior United States District Judge