M. HANNAH LAUCK, District Judge.
This matter comes before the Court on Plaintiff the County of Chesterfield, Virginia's (the "County") Motion to Remand (the "Motion").
Whitmell Investment Corporation ("Whitmell"), a company owned by David Lee, owns the property located at 500 Baptist Drive in Chesterfield County, Virginia (the "Property"). In 2010, Whitmell applied to the County for a conditional use permit to use the Property as "a private school and/or college" (the "Permit"). (Not. Removal Ex. 1 "State Court Compl." ¶ 6, ECF No. 1-1.) On November 17, 2010, the County approved the Permit, which subjected the Property to various conditions proffered as part of Whitmell's application.
Christopher Lane and Stacy Lane now "have custody and control of the Property as tenants, lessees, and/or property manages of the Property." (Id. ¶ 3.) Whitmell remains the Property's owner. Between February 2016 and November 2017, the County received six official complaints from the public regarding various uses of Defendants' property, including its use as "housing for the homeless and drug addicts, church services, vacation Bible school for minor children unaccompanied by their parents, and monthly luncheons open to the public." (Id. ¶ 12.)
In September 2016, the County issued Whitmell and Stacy Lane a written determination finding that these uses violated the conditional use permit for the property, specifically Proffered Condition No. 1 (the "Determination").
On April 5, 2018 the County filed a Petition for Injunctive Relief (the "Petition") against Defendants in the Chesterfield Circuit Court. The Petition seeks, in relevant part, to enjoin Defendants from participating in activities that do not comport with the conditional use permit.
On April 10, 2018, the County served the Petition on Christopher Lane and Stacy Lane. On April 17, 2018, the County served the Petition on David Lee and Whitmell. On April 30, 2018, Christopher Lane, Stacy Lane, David Lee, and Whitmell filed an Answer and Counterclaim (the "State Court Answer and Counterclaim") in the Chesterfield Circuit Court. (Not. Removal Ex. 4 "State Court Answer and Counterclaim" 1, ECF No. 1-4.) The State Court Answer and Counterclaim asserted claims pursuant to the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") and the First Amendment, while preserving various unspecified tort claims that Defendants did not at that time wish to pursue.
On May 23, 2018, the day before the scheduled injunction hearing to decide the County's Petition, Defendants filed the Notice of Removal in this Court. The Notice of Removal asserted that removal was proper under 28 U.S.C. § 1446(b)(3)
On May 24, 2018, at the injunction hearing convened to decide the County's Petition, Defendants for the first time notified the Chesterfield Circuit Court of their removal. The Chesterfield Circuit Court generally continued the injunction hearing, pending action from this Court.
The County asks this Court to remand the case to the Chesterfield Circuit Court because this Court lacks subject matter jurisdiction. The County also seeks an award of costs and attorney's fees under 28 U.S.C. § 1447(c).
The County posits that, in addition to these numerous procedural and substantive legal defects, the timing of removal, and Defendants' failure to cite legal authority to support their allegations, support a finding that the removal "appears to be intended to delay or otherwise undermine the County's effort to obtain injunctive relief in state court." (Mem. Supp. Mot. 13; Reply 5). For this reason, the County seeks an award of attorney's fees.
In the Notice of Removal, Defendants claim that "[r]emoval is proper under 28 U.S.C. § 1446(b)(3)." (Not. Removal ¶ 4.) In their opposition to the Motion, Defendants clarify for the first time that they did not base their removal on the County's Petition but instead identify a May 15, 2018 email from the County (the "May 15 Email"), (ECF No. 7-3), as an "other paper" from which Defendants first ascertained that the case was removable under 28 U.S.C. § 1446(b)(3).
Under 28 U.S.C. § 1441(a),
"An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). "[T]he standard for awarding fees should turn on the reasonableness of the removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Id.
"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. To arise under federal law, "a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10-11 (1983) (quoting Gully v. First Nat'l Bank, 299 U.S. 109, 112 (1936)). "The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). "[A] counterclaim—which appears as part of the defendant's answer, not as part of the plaintiff's complaint—cannot serve as the basis for [federal] jurisdiction." Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
"Where a claim finds its origins in state rather than federal law . . . [courts] have identified a `special and small category' of cases in which arising under jurisdiction[
"The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . ." 28 U.S.C. § 1446(b)(1). When a defendant may not remove the case based on the initial pleading, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of [an] . . . other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). In deciding whether a subsequent "other paper" gives the defendant notice of the grounds for removal, a "court [may] rely on the face of the initial pleading and on the documents exchanged in the case by the parties," and may "requir[e] that those grounds be apparent within the four corners of the initial pleading or subsequent paper." Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997).
In Chesterfield County, Virginia, the Director of Planning has authority, by ordinance, to invoke injunctions to "prevent, restrain, correct, or abate violations of the zoning ordinance." Chesterfield County, Va., Code Ordinances § 19.1-6(D)(3). Virginia courts have authority to "restrain[], correct[], or abate[] . . . by injunction" violations of the zoning ordinance. VA. CODE § 15.2-2208(A).
The Court must remand this matter to the Chesterfield Circuit Court because the Defendants have failed to establish that the Petition implicates a federal issue that would give rise to federal question jurisdiction. Although it appears that Defendants lacked an "objectively reasonable basis for seeking removal," Martin, 546 U.S. at 141, in this matter, the Court declines to award attorneys' fees to the County.
Defendants cite 28 U.S.C. § 1331, which establishes federal question jurisdiction, as the basis for this Court's jurisdiction over the matter.
The face of the County's Petition does not present any federal question: it raises only issues of state and local law. Specifically, the Petition seeks to enjoin Defendants from using the Property in ways that do not comply with the Property's conditional use permit. By ordinance, the Director of Planning has authority to invoke injunctions to "prevent, restrain, correct, or abate violations of the zoning ordinance." Chesterfield County, Va., Code Ordinances § 19.1-6(D)(3). Virginia courts have authority to "restrain[], correct[], or abate[] . . . by injunction" violations of the zoning ordinance. VA. CODE. § 15.2-2208(A). State and local law provide the exclusive authority for the injunction the County's Petition seeks. Accordingly, the Petition asserts only a state law claim and no removable federal issue. See Franchise Tax Board, 463 U.S. at 9-12 (finding that to establish federal question jurisdiction, "a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action").
Because the "well-pleaded complaint rule" requires that "a federal question [be] . . . presented on the face of the plaintiff's properly pleaded complaint," Caterpillar Inc., 482 U.S. at 392, and the County's Petition raises only issues of state and local law,
The County requests attorneys' fees, observing that "Defendants' improper and erroneous removal of this case has delayed timely resolution of the County's request for injunctive relief from the state court," a delay that "could have been avoided through a reasonable inquiry by Defendants' counsel into whether removal was warranted under the federal removal statutes and applicable case law." (Mem. Supp. Mot. 13.) This Court has authority to remand this case and "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal" if it finds that the Defendants "lacked an objectively reasonable basis for seeking removal." See 28 U.S.C. § 1447(c); Martin, 546 U.S. at 141.
Because the County's Petition does not plausibly implicate a question of federal law,
In the interest of judicial expediency, however, the Court declines to further delay proceedings in this matter by requirement parties to brief the issues of fees. No doubt exists that the Chesterfield Circuit Court can expertly handle all issues, including improper motions, that rise to the forefront upon remand. The Court, in its discretion, declines to award fees associated with this improper removal.
For the foregoing reasons, the Court will grant the Motion. (ECF No. 4.) An appropriate order shall issue.
Each of the Additional Pending Motions pertains to Defendants' July 23, 2018 Motion for Preliminary Injunction, (ECF No. 13). On that same day, July 23, 2018, the Court denied Defendants' Motion for Preliminary Injunction for failure to comply with Local Rule 7. (July 23, 2018 Order 1 n.1, ECF No. 15.) Because the Court previously denied Defendants' Motion for Preliminary Injunction, the Court will deny as moot each of the Additional Pending Motions. (ECF Nos. 17, 18, 20.)
28 U.S.C. § 1446(b)(3).
28 U.S.C. § 1441(a).
Defendants claim that removal was proper pursuant to 28 U.S.C. § 1446(b)(3) based on the May 15 Email. Section 1446(b)(3) grants a defendant additional time to remove the case if the defendant receives "a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). Defendants do not specify how the May 15 Email satisfies the requirements to constitute an "other paper" as required by the statute and fail to cite any legal authority supporting their contention. 28 U.S.C. § 1446(b)(3). They also fail to identify how a scheduling emails shows that a case "is one which is or has become removable." See id. Because Defendants' arguments that they properly removed this action pursuant to 28 U.S.C. § 1446(b)(3) lack any basis in law, the Court rejects this argument.
