"Although there is no statutory basis for remand due to a party's waiver of its right of removal, the Fourth Circuit Court of Appeals [has] recognized that a district court could find a waiver under common law, but only in very limited circumstances." Virginia Beach Resort & Conference Ctr. Hotel Ass'n Condo. v. Certain Interested Underwriters at Lloyd's, 812 F. Supp. 2d 762, 764 (E.D. Va. 2011) (internal quotation marks and citation omitted). To evaluate whether a defendant has waived its right to removal, the court must make "a factual and objective inquiry as to the defendant's intent to waive."
"[A] finding of waiver is appropriate only in extreme situations, when judicial economy, fairness, and comity demand it." Id. (citing Grubb, 935 F.2d at 59)) (internal quotations omitted); see also Va. Beach Resort & Conference Ctr. Hotel Ass'n Condo. v. Certain Interested Underwriters at Lloyd's London, 812 F. Supp. 2d 762, 764 (E.D. Va. 2011) (stating that district courts should find waiver "only in very limited circumstances"). Although "the line between what will constitute waiver of the right to remove and what will not is far from clear," Charles A. Wright & Arthur R. Miller, 14B Fed. Prac. & Proc. Juris. § 3721 (4th ed.), the Court concludes that Defendant's state court filings in this case did not demonstrate a "clear and unequivocal intent to remain in state court," see Northrop Grumman, 865 F.3d at 186, nor does this case present the sort of "extreme situation," id., in which the Fourth Circuit has indicated that a waiver may be found.
I observe, though, in any event, that the Fourth Circuit recognizes waiver of removal "only in very limited circumstances." Curl v. Beltsville Adventist Sch., No. GJH-15-3133, 2016 WL 4382686, at *5 (D. Md. Aug. 15, 2016) (quoting Va. Beach Resort & Conference Ctr. Hotel Ass'n Condo. v. Certain Interested Underwriters at Lloyd's, London, 812 F. Supp. 2d 762, 764 (E.D. Va. 2011)). In Curl v. Beltsville Adventist School, this Court noted that a defendant waives removal when he or she demonstrates "a 'clear and unequivocal' intent to remain in state court."
The cases cited by Plaintiff support a finding of no waiver. For example, Defendant's decision does not show the same level of intent to remain in state court as did filing a substantive counter claim, as in Virginia Beach Resort & Conference Center Hotel Ass'n Condominium v. Certain Interested Underwriters at Lloyd's, London Subscribing to Certificate No. AS65009VAP00047, 812 F. Supp. 2d 762, 765-66 (E.D. Va. 2011). The facts of this case are instead closer to those of Pigg v. Progressive Casualty Insurance Co., No. 3:06 CV 125-H, 2006 WL 1789145 (W.D.N.C. June 27, 2006), where the court found that a motion for an extension of time filed after notice was received did "not demonstrate a clear and unequivocal intent to remain in state court[.]"
"Although there is no statutory basis for remand due to a party's waiver of its right of removal, 'the [United States Court of Appeals for the] Fourth Circuit . . . [has] recognized that a district court could find a waiver under common law, but only in very limited circumstances.'" Va. Beach Resort & Conference Ctr. Hotel Ass'n Condo. v. Certain Interested Underwriters at Lloyd's, London, 812 F. Supp. 2d 762, 764 (E.D. Va. 2011) (quoting Westwood v. Fronk, 177 F.Supp.2d 536, 540 (N.D.W.Va.2001)). The Fourth Circuit explained that a defendant waives its right to remove an action to federal court by "demonstrating a 'clear and unequivocal' intent to remain in state court," but that "such a waiver should only be found in 'extreme situations.'"
Id. at 140, 126 S.Ct. 704. Recognizing this goal, other courts in this district have concluded that reliance on non-controlling caselaw in the absence of controlling Fourth Circuit precedent is generally sufficient to form an objectively reasonable basis for removal.See. e.g.,Simpkins v. SunTrust Mortg., No. 12–cv–264, 2013 WL 1966904, at *7 (E.D.Va. May 7, 2013); Racetime Investments, LLC v. Moser, No. 12–cv–860, 2013 WL 987835, at *5 (E.D.Va. Feb. 6, 2013); Va. Beach Resort v. Certain Interested Underwriters, 812 F.Supp.2d 762, 768 (E.D.Va.2011); City of Chesapeake v. Clear Sky Car Wash, LLC, No. 12–cv–195, 2012 WL 3866508, at *7 (E.D.Va. Sept. 5, 2012).--------
Accordingly, Mount Vernon is directed to Show Cause within fourteen (14) days of the date of this Order why this case should not be remanded to state court as a consequence of its decision to file its counterclaim in state court. Cf. Va. Beach Resort & Conf. Ctr. Hotel Ass'n Condo. v. Certain Interested Underwriters at Lloyd's, 812 F.Supp.2d 762 (E.D.Va.2011) (holding a defendant had waived its right to removal by filing a counterclaim for declaratory judgment in state court). III.