Nardone v. Edee
1:23-cv-00030
W.D.N.C.Mar 22, 2023Background
- Plaintiffs Alix Nardone and Brooke Stark and Defendant Eric Edee are tenants-in-common of Lot 23, Lakeside Mountain Subdivision (each a one-third interest). Plaintiffs filed a partition action in Transylvania County, NC requesting partition or sale and attorneys’ fees.
- The state clerk awarded possession to Plaintiffs pending sale, ordered a private sale in lieu of partition, appointed a commissioner, and the commissioner reported a $1,250,000 offer.
- Plaintiffs moved to join Westwood Funding, LLC after learning Defendant had conveyed his interest to that entity; Defendant removed the action to federal court on Feb. 1, 2023, alleging diversity jurisdiction (with inconsistent citizenship allegations).
- After removal, Defendant filed amended responses asserting, for the first time, a § 1983 federal claim; Plaintiffs moved to remand. Defendant is pro se and removal occurred just before a scheduled state-court hearing.
- The magistrate judge found Defendant failed to prove complete diversity, declined to permit a new federal-jurisdiction basis after removal, remanded the case to state court, denied Plaintiffs’ request for fees, and denied Defendant’s continuance and other relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Diversity jurisdiction | No complete diversity: Petition alleged Stark and Defendant are Georgia residents | Stark is a Tennessee citizen (and Nardone Florida), so complete diversity exists | Removal failed: Defendant did not carry burden to show complete diversity; remand ordered |
| Federal-question jurisdiction | No federal question; this is a routine partition matter for state court | Later asserted a § 1983 claim in an amended response as a federal basis | Court refused to accept a new jurisdictional basis after removal and found no federal question apparent |
| Award of attorneys’ fees under 28 U.S.C. § 1447(c) | Fees and costs should be awarded for improper removal | Removal was not objectively unreasonable given pro se status and limited delay | Denied: court exercised discretion to refuse fees given pro se status and minimal delay |
| Continuance and other relief sought by Defendant | Opposed (implicit); sought remand | Requested continuance (until 02/24/2028) and leave to file exhibits/other relief | Denied as moot (continuance) and denied without prejudice (other relief) |
Key Cases Cited
- West Virginia State Univ. Bd. of Governors v. Dow Chemical Co., 23 F.4th 288 (4th Cir.) (removing party bears burden to establish federal jurisdiction)
- Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452 (4th Cir.) (removal jurisdiction construed strictly due to federalism concerns)
- Marshall v. Manville Sales Corp., 6 F.3d 229 (4th Cir.) (Congress intended to restrict removal; doubts resolved in favor of state court)
- Wood v. Crane Co., 764 F.3d 316 (4th Cir.) (district courts may permit amendments to a notice of removal only to correct allegations already present; cannot add new jurisdictional bases after 30 days)
- Johnson v. Advance Am., 549 F.3d 932 (4th Cir.) (citizenship, not mere residency, controls for diversity jurisdiction)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. Sup. Ct.) (fees under §1447(c) require lack of objectively reasonable basis for removal)
- UMLIC Consolidated, Inc. v. Spectrum Financial Services Corp., 665 F. Supp. 2d 528 (W.D.N.C.) (declining fees where removal failed to adequately allege diversity)
- Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (U.S. Sup. Ct.) (complete diversity requirement for diversity jurisdiction)