United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR.UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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
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).
Court finds remand to state court necessary. The
voluntary/involuntary dismissal rule precludes complete
diversity. The defendants have not sufficiently proved
fraudulent joinder ...