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County of Chesterfield v. Lane

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

December 21, 2018

CHRISTOPHER LANE, et al, Defendants.


          M. Hannah Lauck, United States District Judge.

         This matter comes before the Court on Plaintiff the County of Chesterfield, Virginia's (the "County") Motion to Remand (the "Motion").[1] (ECF No. 4.) The County moves to remand this case to the Circuit Court of the County of Chesterfield (the "Chesterfield Circuit Court") for lack of subject matter jurisdiction. Defendants[2] opposed the remand, (ECF No. 7), and the County replied, [3] (ECF No. 10). The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, the matter is ripe for disposition. For the reasons that follow, the Court will grant the Motion.

         I. Procedural and Factual Background

         A. Factual Background

         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.[4] Relevant here, in seeking the Permit, Whitmell proffered that "[t]he only use on the Property shall be for a private school and/or college and uses incidental or accessory thereto" ("Proffered Condition No. 1"). (Id. ¶ 6.)

         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").[5] After receiving the Determination, Defendants continued to use their property for the allegedly prohibited uses. After reiterating the Determination to Defendants in-person, by phone, and by email numerous times, the County sent Whitmell a Notice of Violation in September 2017 (the "Notice of Violation"). Defendants continue to persist in allegedly prohibited uses.

         B. Procedural Background

         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)[6] and that this Court had jurisdiction pursuant to 28 U.S.C. § 1331[7] and 42 U.S.C. § 2000-cc-2(f).[8] In the Notice of Removal, Defendants assert various federal claims against the County, including violations of RLUIPA, [9]the Takings Clause of the Fifth Amendment, [10] the Takings Clause of the Fourteenth Amendment, [11] and the Equal Protection Clause of the Fourteenth Amendment, [12] as well as several common law tort claims.[13]

         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.

         C. Summary of the Parties' Positions Regarding Remand

         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).[14] The County contends that this Court does not have jurisdiction because: (1) Defendants untimely filed the Notice of Removal, (2) the face of the County's Petition presents no federal question, (3) United States Court of Appeals for the Fourth Circuit precedent holds that state courts properly decide land use questions; and, (4) the removal lacked the unambiguous consent of all Defendants.

         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).[15] In that email, the County rejected Defendants' request to reschedule the May 24 hearing in the Chesterfield Circuit Court to decide the County's Petition. Defendants assert that this refusal led them to realize that the County was engaging in a "predatory and organized effort... to shut down a church and remove the Pastor and his wife by threat of arrest for whatever their reason may be." (Resp. ¶ 9.) Counsel for Defendants states that "[i]t was the Tuesday, May 15, 2018 email from Attorney Russell that triggered our discussions that led us to removal."[16] (Id. ¶ 10.)

         II. Legal Standards

         A. Removal and Remand

         Under 28 U.S.C. § 1441(a), [17] a defendant may remove a civil action to a federal district court if the plaintiff could have originally brought the action in federal court. 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1447(c), "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "The party seeking removal bears the initial burden of establishing federal jurisdiction." Abraham v. Cracker Barrel Old Country Store, Inc., No. 3:llcvl82, 2011 WL 1790168, at *1 (E.D. Va. May 9, 2011) (citing Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)). No. presumption favoring the existence of federal subject matter jurisdiction exists because federal courts have limited, not general, jurisdiction. Id. (citing Pinkley Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999)). Courts must construe removal jurisdiction strictly. Id. (citing Mulcahey, 29 F.3d at 151). "'If federal jurisdiction is doubtful, a remand is necessary.'" Id. (quoting Mulcahey, 29 F.3d at 151).

         "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.

         1. Federal ...

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