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Gaudard v. Carriage House Preservation, L.P.

United States District Court, E.D. Virginia, Richmond Division

August 4, 2017

YVONNE JESSICA GAUDARD, Plaintiff,
v.
CARRIAGE HOUSE PRESERVATION, L.P., NHPMN MANAGEMENT, LLC, AIMCO CARRIAGE HOUSE GP, LLC, AIMCO EQUITY SERVICES, INC., VIRGINIA HOUSING DEVELOPMENT AUTHORITY, and J. M. CRAWLEY, Defendants.

          OPINION

          JOHN A. GIBNEY, JR.UNITED STATES DISTRICT JUDGE

         Due to significant levels of mold in her apartment, Yvonne Jessica Gaudard's health deteriorated. As a result, Gaudard brought suit in state court against the owners, managers, and related agents of her apartment complex, including J. M. Crawley, the manager of her apartment complex. Gaudard alleged several counts including breach of contract, common law negligence, actual and constructive fraud, and negligence per se. Upon the state court's dismissal of Crawley, the defendants filed a notice of removal. In response, Gaudard has filed a motion to remand.

         Crawley's dismissal by the state court judge constitutes an involuntary dismissal. A federal court does not have diversity jurisdiction over a case made removable by an involuntary dismissal, at least during the time an appeal is possible.

         Of course, a defendant can remove a case if the plaintiff has sued non-diverse parties in a fraudulent attempt to defeat diversity jurisdiction. In this case, the defendants do not meet their high burden of establishing fraudulent joinder. Accordingly, the Court grants Gaudard's motion to remand the case back to state court.

         I. BACKGROUND

         A. Factual Background

         While living in Carriage House Apartments for two years, exposure to excessive mold and moisture harmed Gaudard's health. Gaudard reported the problems that beset her unit on several occasions. Crawley repeatedly told Gaudard that management had taken appropriate action to solve the problem. When the issues remained unsolved, Gaudard scheduled her own mold examinations. The first investigation indicated the unit had "heavy" to "moderate" levels of mold; the second found over 50% moisture. Gaudard has suffered repeated infections and sinus problems, requiring hospitalization. Moreover, her asthma has considerably worsened.

         B. Procedural Background

         In 2014, Gaudard sued the defendants in the Circuit Court for the City of Petersburg, but voluntarily nonsuited the case. On November 25, 2015, Gaudard refiled the suit in the same state court.

         The defendants filed a notice to remove the case to this Court, and Gaudard responded with a motion to remand. In January 2017, this Court found Crawley a party to the case for purposes of evaluating diversity jurisdiction. Because Crawley resided in Virginia, complete diversity between the parties did not exist, so the federal court did not have jurisdiction. The Court remanded the case to state court.

         After remand, on January 17, 2017, Gaudard served Crawley with the complaint. Crawley responded by filing a motion to quash service and dismiss the case against her. The state court granted the motion and dismissed Crawley from the case. Gaudard appealed. Gaudard's appeal of this dismissal remains pending.

         II. DISCUSSION

         Federal diversity jurisdiction requires complete diversity between the parties; none may share citizenship. Strawbridge v. Curtis, 7 U.S. 267 (1806). If diversity jurisdiction exists, a party may remove the case from state court to federal court. 28 U.S.C. § 1441(a). "Diversity must be established at the time of removal." Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1988). Courts strictly construe diversity jurisdiction upon removal to federal court. Wagner v. Regent Invs. Inc., 903 F.Supp. 966, 968 (E.D. Va. 1995). "If federal jurisdiction is doubtful, a remand is necessary." Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).

         The Court finds remand to state court necessary. The voluntary/involuntary dismissal rule precludes complete diversity. The defendants have not sufficiently proved fraudulent joinder ...


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