# Huber Technology, Inc. v. Gowing Contractors Ltd.

> District Court, W.D. North Carolina · September 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10254901

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** September 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254901

## How later opinions describe it (automated extraction)

- concluding that plaintiff waived her objections to procedural defects in removal by affirmatively litigating her claim in federal court
- concluding that plaintiff waived his right to seek remand by attending depositions noticed by defendants and amending his complaint in federal court

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00525-RJC-DCK

HUBER TECHNOLOGY, INC., )
)
Plaintiff, )
)
vs. )
) ORDER
)
GOWING CONTRACTORS LTD., )
)
Defendant. )
____________________________________)

THIS MATTER comes before the Court on Plaintiff’s Motion to Remand, (Doc.
No. 5); the Magistrate Judge’s Memorandum and Recommendation (“M&R”), (Doc.
No. 9); Plaintiff’s Objections to the M&R, (Doc. No. 12); and Defendant’s Response to
Plaintiff’s Objections, (Doc. No. 14).
I. BACKGROUND
On May 31, 2018, Plaintiff Huber Technology, Inc. (“Plaintiff”) filed a
Complaint against Defendant Gowing Contractors Ltd. (“Defendant”) in the Superior
Court of Mecklenburg County, North Carolina. (Doc. No. 1-1.) On September 27,
2018, Defendant removed the action to the United States District Court for the
Western District of North Carolina on the basis of diversity jurisdiction under 28
U.S.C. § 1332(a)(2). (Doc. No. 1.) The parties conducted an Initial Attorney’s
Conference (“IAC”) on October 18, 2018 and filed their Certificate of Initial Attorney’s
Conference (“CIAC”) on October 25, 2018. (Doc. No. 3.)
On October 29, 2018, Plaintiff filed its Motion to Remand, arguing that
Defendant’s removal was untimely. (Doc. No. 5.) In the M&R, the Magistrate Judge
recommended that the Court deny Plaintiff’s motion. (Doc. No. 9, at 4.) The
Magistrate Judge concluded that Plaintiff had waived its right to seek remand

because the motion was untimely, Plaintiff participated in the IAC and CIAC without
raising its demand for remand, and Plaintiff failed to comply with Local Rule 7.1(e).
(Doc. No. 9, at 3.)
II. STANDARD OF REVIEW
A district court may assign dispositive pretrial matters, including motions to
dismiss, to a magistrate judge for “proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A)–(B). The Federal Magistrate Act provides that a district

court “shall make a de novo determination of those portions of the report or specific
proposed findings or recommendations to which objection is made.” Id. at
§ 636(b)(1)(C); Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
III. DISCUSSION
Plaintiff makes two objections to the M&R: (1) the M&R incorrectly found that
Plaintiff’s Motion to Remand was untimely filed, and (2) the M&R erred in concluding

that Plaintiff waived its right to seek remand. (Doc. No. 12, at 2.) After a de novo
review of the record, the Court agrees.
A. Plaintiff timely filed its Motion to Remand.
“A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of the notice
of removal under section 1446(a).” 28 U.S.C. § 1447(c). Under Rule 6 of the Federal
Rules of Civil Procedure, in computing a time period under a statute that does not
specify a method of computing time, the court is to “include the last day of the period,
but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run

until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed.
R. Civ. P. 6(a)(1)(C). Section 1447 does not specify a method of computing time and,
thus, Rule 6 applies when computing the thirty-day time period thereunder for filing
a motion to remand.
Here, Defendant filed its Notice of Removal on September 27, 2018. (Doc. No.
1.) Accordingly, Plaintiff was required to file a motion to remand on or before
Saturday, October 27, 2018. See 28 U.S.C. § 1447(c). Applying Rule 6, Plaintiff’s

deadline for filing a motion to remand continued to run until the end of the day on
Monday, October 29, 2018. Fed. R. Civ. P. 6(a)(1)(C). Plaintiff filed its Motion to
Remand on October 29, 2018 and, thus, the motion was timely.
B. Plaintiff did not waive its right to seek remand.
Defendant argues that Plaintiff’s participation in the IAC and CIAC
constituted a waiver of Plaintiff’s right to seek remand on the basis that Defendant’s

Notice of Removal was untimely.
An untimely filed notice of removal is a defect in removal procedure. Cades v.
H & R Block, Inc., 43 F.3d 869, 873 (4th Cir. 1994). Section 1447(c) gives the parties
the responsibility to “assert a procedural defect or to waive the defect if they choose
to remain in the federal forum.” Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 198 (4th Cir. 2008). The right to seek remand for procedural defects is generally
waived where a plaintiff “vigorously prosecut[es] the case after removal,” 32A Am.
Jur. 2d Federal Courts § 1382 (2019), and where the statutory deadline for moving
for remand on a procedural basis lapses, see Wiley v. United Parcel Serv., Inc., 11 F.

App’x 176, 178 (4th Cir. 2001) (declaring that waiver occurs when a party “fails to
note a non-jurisdictional objection within 30 days of the notice of removal”). For
example, a plaintiff may waive objections to removal by affirmatively litigating in
federal court or attending depositions and amending one’s complaint before moving
to remand. Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 42 (5th Cir. 1989)
(concluding that plaintiff waived his right to seek remand by attending depositions
noticed by defendants and amending his complaint in federal court); Busby v. Capital

One, N.A., 841 F. Supp. 2d 49, 53 (D.D.C. 2012) (concluding that plaintiff waived her
objections to procedural defects in removal by affirmatively litigating her claim in
federal court).
Here, Defendant removed this action on September 27, 2018 and filed its
Answer on October 4, 2018. (Doc. Nos. 1 to 2.) In the Western District of North
Carolina, the Local Rules require the parties to participate in an IAC within fourteen

days of the filing of the answer to the complaint. LCvR 16.1(a), (d). Within seven
days of the IAC, the parties must file their CIAC. LCvR 16.1(b). In this case, the
parties conducted the IAC and filed their CIAC on October 25, 2018, as required.
(Doc. No. 3.) Four days later, Plaintiff filed its Motion to Remand. (Doc. No. 5.)
Plaintiff’s only actions post-removal thus consisted of (1) participating in the IAC and
CIAC as mandated by Local Rule 16.1 and (2) filing its Motion to Remand.
The Court does not view mere adherence to Local Rule 16.1 as a waiver of the
right to seek remand. Plaintiff’s conduct in this litigation is even more passive than
conduct that courts have found insufficient to constitute a waiver, such as amending

a complaint after a denial of a remand motion, see King v. Marriott Int’l, Inc., 337
F.3d 421, 426 (4th Cir. 2003); failing to seek an immediate appeal of a district court’s
denial of remand, see Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 n.11 (1996); and “filing
an opposition to a pending motion to dismiss,” see SWC Inc. v. Elite Promo Inc., 234
F. Supp. 3d 1018, 1025 (N.D. Cal. 2017) (“Such minimal mandatory and defensive
conduct does not amount to the type of affirmative conduct that courts typically have
found to support waiver.”). Plaintiff merely engaged in the mandatory conference

and accompanying certificate thereto before filing its Motion to Remand. This is
insufficient to waive the right to seek remand. Instead, Plaintiff “did all that was
required to preserve [its] objection to removal.” Caterpillar Inc., 519 U.S. at 74. The
Court therefore concludes that Plaintiff did not waive its right to seek remand.
C. Defendant failed to meet its burden to establish that it timely filed its
Notice of Removal.

Having concluded that Plaintiff’s Motion to Remand was timely and Plaintiff
did not waive its right to seek remand, the Court now addresses the merits of the
motion.
Plaintiff argues that this action must be remanded to state court because
Defendant’s Notice of Removal was untimely. Pursuant to section 1446(b), “[t]he
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). Plaintiff contends that Defendant was served with the Complaint
and summons on August 27, 2018 and, as such, was required to file any notice of

removal on or before September 26, 2018. Because Defendant did not file its Notice
of Removal until September 27, 2018, Plaintiff asserts that remand is appropriate.
In response, Defendant contends that Plaintiff has failed to prove that Defendant was
served on August 27, 2018. Defendant states that it “has a reasonable belief that its
Notice of Removal was timely filed” based on “its own recollection of the date the
Complaint was received, which was August 31, 2018.” (Doc. No. 14, at 4–5.)
Defendant’s argument fails to recognize that “[t]he burden of establishing that

removal is timely rests with the defendant.” PurAyr, LLC v. Phocatox Techs., LLC,
263 F. Supp. 3d 632, 635 (W.D. Va. 2016); Andrews v. Daughtry, 994 F. Supp. 2d 728,
732 (M.D.N.C. 2014) (“[B]ecause Plaintiffs have challenged the timeliness of
[defendant]’s removal, [defendant] must demonstrate that his notice of removal was
timely.”); Tolley v. Monsanto Co., 591 F. Supp. 2d 837, 845 (S.D. W. Va. 2008) (“The
burden of establishing that removal was timely is on the defendant.”); McPhatter v.

Sweitzer, 401 F. Supp. 2d 468, 472 (M.D.N.C. 2005) (“[T]he burden is on Defendants
to establish that they filed their [notice of removal] in a timely manner.”); see also
Brown v. Kearse, 481 F. Supp. 2d 515, 521 (D.S.C. 2007) (“Defendant bears the
burden of establishing the right to removal, including compliance with the
requirements of § 1446(b).” (quoting Marler v. Amoco Oil Co., 793 F. Supp. 656, 658–
59 (E.D.N.C. 1992)).)
Defendant has not come forward with any evidence that its Notice of Removal
was timely. Defendant merely asserts in its briefs that it reasonably believes the
Notice of Removal was timely based on its recollection of when it received the

Complaint. “[F]ailure to comply with the 30-day limit [of § 1446(b)] is grounds for
immediately remanding a removed case to state court.” PurAyr, LLC, 263 F. Supp.
3d at 635 (alterations in original) (quoting FHC Options v. Security Life Ins. Co. of
Am., 993 F. Supp. 378, 380 (E.D. Va. 1998)). Accordingly, the Court grants Plaintiff’s
Motion to Remand.
D. The Court declines to award attorney’s fees and costs.
Plaintiff also requests an award of attorney’s fees and costs. “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). The
Supreme Court has explained that “[a]bsent unusual circumstances, attorney’s fees
should not be awarded when the removing party has an objectively reasonable basis
for removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). While
“district courts retain discretion to consider whether unusual circumstances warrant

a departure from the rule in a given case,” the court’s “reasons for departing from the
general rule should be faithful to the purposes of awarding fees under § 1447(c).” Id.
at 141 (quotation marks omitted). “The decision whether to award fees pursuant to
§ 1447(c) is a matter within the Court’s sound discretion.” Rice v. Rutledge Rd.
Assocs., LLC, No. 1:15-cv-00269, 2016 U.S. Dist. LEXIS 173634, at *6 (W.D.N.C. Dec.
15, 2016).
Although the Court has concluded that remand is appropriate, the Court finds
that Defendant had an objectively reasonable basis for removal. Indeed, the parties
do not dispute that, absent an untimely notice of removal, removal would have been
proper on the basis of diversity jurisdiction. Therefore, the Court declines to award
attorney’s fees and costs.
IV. CONCLUSION
IT IS THEREFORE ORDERED that:
1. Plaintiff's Motion to Remand, (Doc. No. 5), is GRANTED. This matter
shall be remanded to Mecklenburg County Superior Court; and
2. The Clerk of Court is directed to close this case.

Signed: September 18, 2019

byte CD

United States District Judge “ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254901. Public record. Not legal advice.