United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE
Twin Trees, LLC ("Twin Trees") filed an unlawful
detainer action to evict a corporate tenant of which
defendant Elizabeth Haring ("Haring") was
president. After receiving a judgment in state court, Twin
Trees filed two summonses to be served on Haring; after a
series of missed hearings and bankruptcy petitions, Haring
removed this matter to this court. Twin Trees moved to
remand. Pursuant to 28 U.S.C. § 636(b)(1)(B), the court
referred the issue of removability to United States
Magistrate Judge Joel C. Hoppe for a report and
recommendation. Judge Hoppe recommended Twin Trees's
motion be granted, and Haring objected to this conclusion.
reasons stated below, the court will
OVERRULE Haring's objection,
ADOPT the report and recommendation in its
entirety, and GRANT Twin Trees's motion
issue arises from a landlord-tenant dispute that began in the
fall of 2014, when Twin Trees and "Hughes Insurance and
Old Town Insurance" executed a three-year lease on a
building in Mount Jackson, Virginia. ECF No. 1-2, at 13.
Hating (then Elizabeth Coomes) and her husband at the time,
Charles R. Coomes ("Coomes"), signed on behalf of
tenants Hughes Insurance/Old Town. Id. at 16-17. The
tenants stopped paying rent, and in late November of 2015,
both Hating and Coomes vacated the property. Id. at
Trees filed an unlawful detainer action to evict in die
Shenandoah County General District Court in October 2015. ECF
No. 7-1, at 1. The summons named "Old Town Insurance
& Financial Services, Inc." as the sole defendant
and alleged that Old Town had breached the lease by failing
to pay $2, 200 in rent and $220 in late fees. Id.
Twin Trees also sought $2, 451.52 in damages for renovation
at the property, plus court costs and interest. Id.
Twin Trees later filed a motion to amend to request
additional damages and reimbursement. ECF No. 1-4, at 1-5.
heating argument on the amended unlawful detainer claim, the
Honorable Judge W. Dale Houff of the Shenandoah County
General District Court entered default judgment against Old
Town in the amount of $6, 877.34, plus possession of the
property and late fees. See ECF No. 7-1. On March 3, 2016,
Hating filed for bankruptcy under Chapter 13 in the United
States Bankruptcy Court for the Western District of Virginia,
Harrisonburg Division. ECF No. 7-3, at 1. Hating had,
however, filed for bankruptcy twice in the previous year, and
pursuant to 11 U.S.C. § 362(c)(4)(A), the automatic stay
did not go into effect. Coomes v. Structured Asset
Sec, No. 5:16-cv-48, 2017 WL 2799903, at *1 (W.D. Va.
June 27, 2017). When one of her creditors filed a motion to
confirm that no stay was in effect, Hating asked the court to
impose a stay despite the previous bankruptcy petitions.
Id. On May 9, the bankruptcy court did so, with the
condition Hating timely pay her mortgage and "achieve a
confirmed Chapter 13 Plan by July 6, 2016." Id.
After several continuances, the bankruptcy court dismissed
Haring's Chapter 13 petition on May 9, 2016 because
Haring had failed to make the required payments and her
proposed Chapter 13 plan that was "not feasible and
confirmable." Id. at 3-4.
in April 2016, Twin Trees asked the Shenandoah County General
District Court to issue two summonses to answer
interrogatories in connection with the default judgment
against Old Town in die unlawful detainer action. ECF No.
5-1, at 1-2 & 10-11. These summonses were directed to
Haring as die registered agent for Old Town but listed two
different addresses. Id. The summonses are labeled
"Case No. [G]V15-1876-02" and "Case No.
[G]V15-1876-03," Id. at 1 & 10; they are
collateral proceedings brought to execute the money judgment
entered against Old Town. Haring was personally served at one of
the addresses to which the summonses were sent, and a hearing
was set for May 23, 2016. ECF No. 5-1, at 1 & 10-11. Twin
Trees agreed to cancel the hearing and postpone post-judgment
proceedings until Haring's bankruptcy proceedings
concluded. ECF No. 7-10, at 1-2.
September 18, 2017, Twin Trees's counsel appeared in
general district court and questioned Haring about Old
Town's assets. ECF No. 7-10, at 2. He felt that the
responses Haring provided were "vague and
incomplete," and so filed a motion for production of
documents regarding die corporation's assets.
Id. Judge Houff set a hearing on this motion for
October 2 at 1:00 pm, but at 8:56 am that day, Haring told
the court clerk and Twin Trees's counsel that she would
not be present because she lived in Indiana, was having car
trouble, and "could not afford to fly to Virginia and
rent a car on such short notice." ECF No. 5-2, at 17.
Judge Houff then entered an order directing Haring to produce
the requested records in her capacity as president of Old
Town. ECF No. 7-5, at 1-2.
Trees filed a motion (later granted) for a hearing to
determine whether Haring had complied with the order for
production on December 11, 2017. ECF No. 7, at 3. The morning
of the hearing, Haring informed the court clerk and Twin
Trees's counsel that she would not attend the hearing
because she had just filed for Chapter 11 bankruptcy with the
United States Bankruptcy Court for the Eastern District of
Virginia at Alexandria in Old Town's name. Id.
at 3-4. Judge Houff canceled the hearing and stayed
post-judgment proceedings. Haring failed to pay the filing
fee for her bankruptcy petition despite having been granted
an extension of time to do so, and her petition was dismissed
without prejudice on May 31, 2018. Id. at 4.
this dismissal, Judge Houff rescheduled the hearing to
determine if Haring had complied with the order to produce
Old Town's financial records. The hearing was set for
August 20, 2018 at 2:00 pm. ECF No. 7-8. That day, at 1:10
pm, Haring informed the court clerk and Twin Trees's
counsel that she had filed another Chapter 11 bankruptcy
petition in Old Town's name, and again the hearing was
canceled. ECF No. 7, at 5. After a hearing and a series of
motions from Twin Trees, Haring, and Coomes, the bankruptcy
court concluded the petition had been filed in bad faith and
dismissed it with prejudice on September 10, 2018. In re:
Old Town II. No. 18-12856 (Bankr. E.D. Va. Sept. 10,
Houff held a status conference on October 15, 2018; Hating
had been hospitalized that morning and did not attend. ECF
No. 1, at 12. Judge Houff set another hearing to determine if
Hating had complied with the motion to produce records. ECF
No. 7-13, at 1-2. Hating filed written objections arguing why
Judge Houff could not proceed with this matter. ECF No. 5-3.
On December 20, 2018, Twin Trees's counsel sent Hating a
letter confirming the hearing scheduled for January 7, 2019
before Judge Houff at 2:00 pm and enclosed a copy of the
original motion to produce. ECF No. 1-2, at
31-32. Hating filed her notice of removal the
morning of January 7, 2019. ECF No. 1. She emailed Twin
Trees's counsel and the court clerk at 12:08 pm to inform
them she would not be present at the hearing as the removal
had "immediately diveste[ed]" the state court
"of jurisdiction (assuming for the sake of argument that
it had jurisdiction in the first instance)." ECF No.
7-14, at 1. Hating requested Judge Houff not hold the
hearing, as she "imagine[d] the Federal Court would
entertain a motion for sanctions upon [Twin Trees's
counsel] if that occurred." Id. The hearing was
continued until April 1, 2019 at 2:00 pm. See ECF No. 5, at
asserts that this court has original jurisdiction over the
state-court proceeding on both federal question and diversity
grounds. ECF No. 1. Twin Trees timely filed a motion to
remand this matter to state court. ECF No. 7. Apart from
contesting the grounds for removal on a substantive level,
Twin Trees also asserts that Hating filed her Notice of
Removal more than thirty days after she received the initial
pleading, and even if this were not so, proceedings could not
be removed when she filed her Notice because more than one
year had passed since Twin Trees commenced the action. 28
U.S.C. § 1446(b)(1) & (c)(1).
addressing the parties' arguments, Judge Hoppe assumed
without deciding that: (1) the summonses to answer
interrogatories issued on April 20, 2016 are the initial
pleadings in Twin Trees, LLC v. Old Town Financial &
Investment Services. Inc., Nos. GV15-1876-02 and
GV15-1876-03; (2) the post-judgment proceeding is a civil
action within the meaning of the general removal statute; and
(3) Haring is a "defendant," or a real party in
interest to the action, who may seek removal under 28 U.S.C.
§ 1441(a). Judge Hoppe stated in connection with these
I make these assumptions, not because Ms. Haring's
arguments have any merit, but for one reason only: to resolve
a straightforward question about this court's
subject-matter jurisdiction without wading into a veritable
thicket of ...