Gregory v. Bruce
| Decision Date | 25 August 2016 |
| Docket Number | 1:15CV996 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | LISA A. GREGORY, Plaintiff, v. MONTE BRUCE, et al., Defendants. |
This matter is before the court upon several motions including: Defendant Penske Truck Leasing Company's ("Penske") motion to dismiss (Docket Entry 6), Defendant Monte Bruce's ("Mr. Bruce") motion to dismiss (Docket Entry 10), Plaintiff Lisa A. Gregory's motion to remand to state court (Docket Entry 17), Penske's motion for protective order (Docket Entry 31) and Mr. Bruce's motion for protective order (Docket Entry 33). All matters are ripe for disposition. For the reasons stated below, the court will recommend that Penske's motion to dismiss be granted (Docket Entry 6), Monte Bruce's motion to dismiss be granted (Docket Entry 10) and, Plaintiff's motion to remand (Docket Entry 17) be denied. Furthermore, the court will grant Penske's motion for protective order (Docket Entry 31) and Mr. Bruce's motion for protective order (Docket Entry 33).
On August 17, 2015, pro se Plaintiff filed a complaint asserting claims against Defendants in the Superior Court in Rowan County, North Carolina. (Petition for Removal, Docket Entry 1, Ex. 1.) Subsequently, Plaintiff filed an amended complaint. (Am. Compl., Docket Entry 2). On November 24, 2015, Defendants filed a petition to remove the case to federal court. (Docket Entry 1.) In the amended complaint, Plaintiff alleges that on or about April 21, 2008, Plaintiff entered into a contract with Penske to rent a moving truck. ( The truck was rented through Mr. Bruce, an individual that owns and operates a business that packages and ships goods (hereinafter "the Packaging Store"). (Id. ¶¶ 3, 12.) According to Plaintiff, Mr. Bruce is an agent of Penske. (Id. ¶¶ 3, 4.) The truck was returned to Mr. Bruce on or about April 30, 2008. (Id. ¶ 12.) On May 5, 2008, Plaintiff and her husband made a $250 cash deposit to rent a truck a second time. (Id. ¶ 14.) According to Plaintiff, although she never touched the vehicle, Mr. Bruce requested that the vehicle be put in her name. (Id. ¶ 17.) On or about June 18, 2008, while operating the rental truck, Plaintiff's husband was arrested by the Greensboro Police after attempting to pawn a stolen lawnmower. (Id. ¶ 18.) The rental truck remained on the property of the pawn store. (Id.) On or about June 19, 2008, Plaintiff bailed her husband out of jail. (Id. ¶ 20.) Plaintiff's husband retrieved the truck and returned it to Mr. Bruce's store. (Id.) On or about June 20, 2008, Mr. Bruce contacted Plaintiff at her place of employment and requested that Plaintiff pay $3,000 for the truck rental fee. (Id. ¶ 21.) Plaintiff requested to see the bill before she paid the amount. (Id.) According to Plaintiff, Mr. Bruce refused to provide her with accounting information and threatened to call the police if she did not pay on that day. (Id.) Between June 20, 2008 and October 23, 2008, Mr. Bruce contacted the police and reported that Plaintiff stole the rental truck. (Id. ¶ 22.) On or about October 23, 2008, Plaintiff was informed by the human resources director at her place of employment that a police officer came to the college to inquire about Plaintiff's husband's involvement with the rental truck. (Id. ¶ 23.) The humanresources director performed a background check which revealed an outstanding warrant for Plaintiff's arrest for failing to appear in court. (Id. ¶¶ 23-24.) Plaintiff was suspended and eventually terminated. (Id. ¶¶ 25, 27.) On or about February 17, 2009, Plaintiff was arrested based on Mr. Bruce's witness statement alleging that Plaintiff stole the rental truck. (Id. ¶ 28.) Plaintiff posted bail the same day. (Id. ¶ 30.) Additionally, on the same day Plaintiff's husband contacted a representative of Penske requesting a copy of the rental agreement and bill. (Id. ¶ 31.) Plaintiff's husband's request was denied. (Id.) On February 19, 2009, Plaintiff contacted another Penske representative to obtain a copy of the bill. (Id. ¶ 33.) Ultimately, Plaintiff was not able to retrieve a copy of the bill. (Id. ¶ 33, 35.) On July 6, 2009, Plaintiff was indicted in Rowan County Superior Court for larceny. (Id. ¶ 38.) On August 14, 2014, Plaintiff's charge was dismissed. (Id. ¶ 44.)
A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441(a). Federal courts thus have original jurisdiction over primarily two types of cases: (1) those involving federal questions and (2) those involving diversity of citizenship. 28 U.S.C. § 1332(a). Removal jurisdiction is strictly construed against removal and in favor of remand. Id.; see also Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F. Supp. 1098, 1102 (D.S.C. 1990) (); Deutsche Bank Nat. Trust Co. v. Lovett, C/A No. 3:12-1819-MBS-SVH, 2012 WL 7070324, at *3 (D.S.C. Aug. 24, 2012).
In assessing the propriety of removal, the rules for determining whether a controversy"arises under" federal law, thus creating federal question jurisdiction, are well established. First, federal law must be an "essential" element of the plaintiff's cause of action. Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 112 (1936). Next, the federal question which is the predicate for removal must be "presented on the face of the plaintiff's properly pleaded complaint." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)); see also Gully, 299 U.S. at 112-13 (). "As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). Additionally, the federal question raised must be a substantial one. Hagans v. Levine, 415 U.S. 528, 536 (1974). Finally, the party seeking removal bears the burden of establishing federal jurisdiction. Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Where a court lacks subject matter jurisdiction, "the court may enter a remand order sua sponte." Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008) (emphasis in original).
First, Plaintiff contends that the case should be remanded because the parties lack diversity of citizenship. (Pl. Mot. to Remand Br. at 14-15, Docket Entry 18.) To the contrary, Defendants argue that the court has federal question jurisdiction over the case. Pursuant to 28 U.S.C. § 1441, "a claim arising under the Constitution, laws, or treaties of the United States" can be removed to federal court. Here, removing Defendants incorrectly put "NOTICE OFREMOVAL OF ACTION UNDER 28 U.S.C. § 1441(b) [Federal Question]" in the title of their notice of removal. (Petition for Removal, Docket Entry 1.) Defendants clearly made an error in referring to 28 U.S.C. § 1441(b) rather than 28 U.S.C. § 1441(c). In paragraph 2 of the notice of removal, removing Defendants state "[a]s amended, this is now a civil rights action over which this Court has original jurisdiction under 28 U.S.C. § 1331, and is one which may be removed to this Court pursuant to the provisions of 28 U.S.C. § 1441(b)." (Id. ¶ 2.) This indicates that the removing Defendants were aware this court had jurisdiction because of Plaintiff's federal civil rights claim and simply failed to cite the correct statute.
Moreover, it is apparent that the case was properly removed to this court under federal question jurisdiction. Plaintiff concedes that "federal question jurisdiction arises pursuant to 42 U.S.C. § 1983." ( Plaintiff also asserts claims under 42 U.S.C. § 1985. (Id. ¶¶ 73-76.) The case was properly removed because it concerns claims arising under federal question jurisdiction, therefore it should not be remanded for lack of diversity of citizenship.
Second, Plaintiff contends that the case should be remanded to state court because Defendants failed to attach all of the necessary process, pleadings, and orders to its notice of removal. (PL Mot. to Remand Br. at 10-13, Docket Entry 18.) Pursuant to 28 U.S.C. § 1446(a):
A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
28 U.S.C. § 1446(a). Here, Defendants attached the civil summons and complaint sent to the City of Salisbury, the City of Salisbury's answer to the complaint, the state court order grantingleave to amend the complaint, Plaintiff's amended complaint, and other documents that were not required. Plaintiff contends that the summons sent to Mark W. Shue, a defendant served in his individual and official capacity, was not attached.
"[T]he majority approach is that the defect is merely procedural and that this particular procedural defect may be cured." Riggs v. Fling Irrigation, Inc., 535 F. Supp. 2d 572, 579 (W.D.N.C. 2008). "The Court sees no reason why this 'minor irregularity' should...
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