Dozier v. Allgood

• Decision Date: 13 April 2022
• Docket Number: 1:21CV731
• Parties: WIN DOZIER, Plaintiff, v. SHERRI ALLGOOD, et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

WIN DOZIER, Plaintiff,
v.
SHERRI ALLGOOD, et al., Defendants.

No. 1:21CV731

United States District Court, M.D. North Carolina

April 13, 2022

RECOMMENDATION OF UNITED STATES MAGISRATE JUDGE

JOE L. WEBSTER, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court upon Win Dozier's (“Plaintiff') Motion to Remand and Motion for Attorney's Fees and Expenses (Docket Entry 7) and Plaintiffs Motion to Supplement Motion for Remand (Docket Entry 10). For the reasons stated herein, the undersigned recommends granting in part and denying in part Plaintiff s Motion to Remand and Motion for Attorney's Fees and Expenses and denying as moot Plaintiffs Motion to Supplement Motion for Remand.

I. BACKGROUND

Plaintiff initiated this action on January 28, 2021, in the General Court of Justice, Superior Court Division, Montgomery County, North Carolina. (Docket Entry 1 ¶ 1; Docket Entry 8 at 1.) Plaintiff brought claims against Sherri Allgood (“Defendant Allgood”) and Tonya Yvette Troublefield (“Defendant Tonya Troublefield”). (Docket Entry 1 ¶ 1; see also Docket Entry 8 at 1.) Plaintiff asserts that his complaint (“Complaint”) brings claims of slander, slander per se, libel, libel per se, and seeks preliminary and permanent injunction

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against Defendants.^[1] (Docket Entry 8 at 1; Docket Entry 1-1 at 102.) Defendant Tonya Troublefield was served with the Complaint on February 4, 2021. (Docket Entry 8-3.) Defendant Allgood was served on February 8, 2021. (Docket Entry 8-4.)

Defendant Allgood filed a motion to dismiss on February 8, 2021 (Docket Entry 1-1 at 115) and Defendant Tonya Troublefield filed a motion to dismiss on February 20, 2021 (Docket Entry 1-1 at 112.) Those motions were denied. (See Docket Entries 7-1, 7-2.) On June 15, 2021, Montgomery County Superior Court Judge Kevin M. Bridges determined that Defendants' motions to dismiss violated Rule 11 of the North Carolina Rules of Civil Procedure in that they were frivolous and were advanced for the improper purpose of causing unnecessary delay and ordered Defendants' counsel to award Plaintiff with attorney's fees in the amount of $4, 237.50. (See Docket Entry 7-3.)

After conducting some discovery, Plaintiff came to believe that Defendant Tonya Troublefield's daughter, Yevette Troublefield, should also be named as a defendant in this matter. (Docket Entry 2 ¶¶ 2-3.) In light of this discovery, Plaintiff filed a motion to amend the Complaint and add a party defendant with the Montgomery County Superior Court on August 23, 2021. (See Docket Entry 2; see also Docket Entry 8 at 1-2.) The hearing for Plaintiffs motion was set before the Montgomery County Superior Court on November 15, 2021. (See Docket Entry 1-1 at 23; Docket Entry 8 at 2.)

On September 21, 2021, before the motion to amend could be heard in Montgomery County Superior Court, Defendants filed a notice of removal. (Docket Entry 8 at 2-3; Docket

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Entry 1 ¶ 2.) Plaintiff then filed his motion to remand on September 29, 2021, seeking to remand the case and seeking attorney's fees and costs. (Docket Entry 7.) Plaintiff asserts that on October 25, 2021, Plaintiffs counsel was served with a proposed record on appeal, which showed that “Defendants' counsel is pursuing an appeal of this action with the North Carolina Court of Appeals.” (Docket Entry 10 at 2; see Docket Entry 10-1.) In response, Plaintiff filed a motion to supplement his motion for remand. (Docket Entry 10.) After requesting and receiving two extensions of time to respond to Plaintiffs motion to remand, Defendants did not respond to Plaintiffs motion and the time to do so has passed. (See Docket Entries 12, 15; Text Orders Entered 11/24/2021 and 01/19/2022.) The motions are ripe.

II. DISCUSSION

a. Plaintiffs Motion to Remand

Plaintiff seeks to remand this case to Montgomery County Superior Court, arguing the notice of removal was late under 28 U.S.C. § 1446(b)(1), premature under 28 U.S.C. § 1446(b)(3), and, even if the notice of removal is not premature, the proposed amended complaint “does not contain any allegation from which it may first be ascertained that the case is one which is or has become removable.” (Docket Entry 8 at 4 (quoting 28 U.S.C. § 1446(b)(3)). Plaintiff also asserts that remand is appropriate because Plaintiff is suing as a private citizen, not a state actor. (Docket Entry 8 at 5.) Defendants have not responded to Plaintiffs Motion to Remand.

First, the Court turns to...