WILLIAM E. SMITH TRUCKING, INC. v. RUSH TRUCKING CENTERS OF NORTH CAROLINA, INC., et al
| WILLIAM E. SMITH TRUCKING, INC. |
| CAROLINA TRACTOR & EQUIPMENT COMPANY, CATERPILLAR, INC., RUSH TRUCK CENTERS OF NORTH CAROLINA, INC., PETERBILT CAROLINA, INC. and RUSH TRUCK LEASING, INC. |
| 1:2011cv00887 |
| October 21, 2011 |
| US District Court for the Middle District of North Carolina |
| NCMD Office |
| Surry |
| L PATRICK AULD |
| Contract Product Liability |
| 28 U.S.C. § 1446 pl |
| Both |
Docket Report
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| Filing 28 MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 01/24/2012. The undersigned Magistrate Judge has authority to rule on the instant Motion to Remand. Caterpillar has failed to establish that Smith Trucking fraudulently joined Rush Trucking as a party and no basis thus exists for removal. However, because Caterpillar had an objectively reasonable basis for pursuing removal, an award of attorneys fees and expenses to Smith Trucking is unwarranted. IT IS THEREFORE ORDERED that Plaintiff's Motion to Remand Pursuant to 28 U.S.C. 1447(c) (Docket Entry #12 ) is GRANTED IN PART and DENIED IN PART in that this case is remanded to the General Court of Justice, Superior Court Division, Surry County, North Carolina, but Plaintiff is not awarded attorney's fees and expenses under 28 U.S.C. 1447(c). IT IS FURTHER ORDERED that this Order is stayed for 21 days because "[a] party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). If any party files an objection to this Order, the 21-day stay shall continue in effect until further order of the Court, but, if no objections are filed, at the end of the 21-day period, the Clerk shall send a certified copy of this Order to the Clerk of the General Court of Justice, Superior Court Division, Surry County, North Carolina.(Taylor, Abby) |
| Motions Referred: #12 MOTION to Remand to MAG/JUDGE L. PATRICK AULD- (Garrett, Kim) |
| Filing 27 Additional Attachments to Main Document. Re #26 REPLY (BROWN, ANDREW) |
| Filing 26 REPLY, filed by Plaintiff WILLIAM E. SMITH TRUCKING, INC., to Response to #12 MOTION to Remand filed by WILLIAM E. SMITH TRUCKING, INC.. (Attachments: #1 Affidavit of William E. Smith)(BROWN, ANDREW) |
Filing 25
ORDER signed by MAG/JUDGE L. PATRICK AULD on 12/20/2011, that Plaintiff's Consent Motion for Extension of Time to File Reply to Defendant Caterpillar Inc's Response to Motion to Remand (Docket Entry #24 ) is GRANTED, and Plaintiff has to and including ten (10) days after Defendant Rush Truck Centers of North Carolina files its Response to Plaintiff's Motion to Remand in which to file a Reply to Defendant Caterpillar Inc.'s Response to Plaintiff's Motion to Remand and Defendant Rush Truck Centers of North Carolina's Response to Plaintiff's Motion to Remand. (Taylor, Abby)
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| Motions Referred: #24 Consent MOTION for Extension of Time to File Response/Reply as to #12 MOTION to Remand to MAG/JUDGE L. PATRICK AULD- (Garrett, Kim) |
| Filing 24 Consent MOTION for Extension of Time to File Response/Reply as to #12 MOTION to Remand by WILLIAM E. SMITH TRUCKING, INC.. (Attachments: #1 Text of Proposed Order)(STUHAN, BRENDAN) |
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Filing 23
ORDER EXTENDING TIME signed by MAG/JUDGE L. PATRICK AULD on 12/09/2011 granting #20 Motion for Extension of Time to File Response/Reply re #12 MOTION to Remand. Responses due by 12/23/2011. (Taylor, Abby)
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| Motions Referred: #20 MOTION for Extension of Time to File Response/Reply as to #12 MOTION to Remand to MAG/JUDGE L. PATRICK AULD- (Garrett, Kim) |
| Filing 22 BRIEF re #21 Response to Motion to Remand by Defendant CATERPILLAR, INC. filed by CATERPILLAR, INC.. (Attachments: #1 Exhibit A - Affidavit of Paul Hlad, #2 Exhibit B - First Amended Complaint, #3 Exhibit C - Plaintiff's Response to Caterpillar Inc.'s First Request for Production of Documents to Plaintiff, #4 Exhibit D- Lohr v. Conseco, Inc., #5 Exhibit E - Intec USA, LLC v. Engle, #6 Exhibit F - Lindsey v. UPS, #7 Exhibit G - R.F. Shinn Contractors, Inc. v. Shinn)(ROBERTS, STEPHANIE) |
| Filing 21 RESPONSE to Plaintiff's Motion to Remand filed by Defendant CATERPILLAR, INC. re #12 MOTION to Remand filed by WILLIAM E. SMITH TRUCKING, INC., #13 Brief filed by CATERPILLAR, INC.. Replies due by 12/27/2011. (ROBERTS, STEPHANIE) |
| Filing 20 MOTION for Extension of Time to File Response/Reply as to #12 MOTION to Remand by RUSH TRUCK CENTERS OF NORTH CAROLINA, INC.. (Attachments: #1 Text of Proposed Order)(STARRETT, DAVID) |
| Filing 19 NOTICE of Appearance by attorney DAVID BRYAN STARRETT, JR on behalf of Defendant RUSH TRUCK CENTERS OF NORTH CAROLINA, INC. (STARRETT, DAVID) |
| Filing 18 NOTICE of Appearance by attorney ROBERT JAMES KING, III on behalf of Defendant RUSH TRUCK CENTERS OF NORTH CAROLINA, INC. (KING, ROBERT) |
| Filing 17 CERTIFICATE OF SERVICE by WILLIAM E. SMITH TRUCKING, INC. re #13 Brief in Support of Plaintiff's Motion to Remand (BROWN, ANDREW) |
| Filing 16 CERTIFICATE OF SERVICE by WILLIAM E. SMITH TRUCKING, INC. re #14 Affidavit of Andrew H. Brown (BROWN, ANDREW) |
| Filing 15 CERTIFICATE OF SERVICE by WILLIAM E. SMITH TRUCKING, INC. re #12 MOTION to Remand (BROWN, ANDREW) |
| NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENT(S) re #12 MOTION to Remand, #14 Affidavit, #13 Brief. Certificate of Service excludes a manual mailing to attorney KENNETH W. WATERWAY. Refile a separate Certificate of Service as to pleadingS #12 , #13 , #14 to KENNETH W. WATERWAY as a manual mailing through the U.S. Postal Service. (Taylor, Abby) |
| Filing 14 AFFIDAVIT re #12 MOTION to Remand filed by Plaintiff WILLIAM E. SMITH TRUCKING, INC.. (BROWN, ANDREW) |
| Filing 13 Supporting BRIEF re #12 MOTION to Remand. (BROWN, ANDREW) |
| Filing 12 MOTION to Remand by WILLIAM E. SMITH TRUCKING, INC.. Responses due by 12/8/2011 (BROWN, ANDREW) |
| Filing 11 Corporate Disclosure Statement by WILLIAM E. SMITH TRUCKING, INC.. (BROWN, ANDREW) |
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Filing 10
ORDER signed by MAG/JUDGE L. PATRICK AULD on 11/02/2011. IT IS THEREFORE ORDERED that Defendant's Motion for Pro Hac Vice (Docket Entry #8 ) is GRANTED, and Kenneth W. Waterway and Kelsey K. Black are hereby granted pro hac vice admission to the bar of this Court. (Taylor, Abby)
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| Filing 9 Corporate Disclosure Statement by CATERPILLAR, INC.. (ROBERTS, STEPHANIE) |
| Motions Referred: #8 MOTION for Pro Hac Vice Admission to MAG/JUDGE L. PATRICK AULD- (Garrett, Kim) |
| Filing 8 MOTION for Pro Hac Vice Admission by CATERPILLAR, INC.. (Attachments: #1 Text of Proposed Order Granting Admission)(ROBERTS, STEPHANIE) |
| Filing 7 NOTICE of Appearance by attorney NATHAN BOWEN ATKINSON on behalf of Defendant CATERPILLAR, INC. (ATKINSON, NATHAN) |
| CASE REFERRED to Standing Order 30. (Sheets, Jamie) |
| Case Assigned to UNASSIGNED and MAG/JUDGE L. PATRICK AULD. (Sheets, Jamie) |
| Filing 6 Notice of Right to Consent. (Sheets, Jamie) |
| Filing 5 FIRST AMENDED COMPLAINT against defendant RUSH TRUCK CENTERS OF NORTH CAROLINA, INC., RUSH TRUCK LEASING, INC., PETERBILT CAROLINA, INC., CAROLINA TRACTOR & EQUIPMENT COMPANY, CATERPILLAR, INC., filed by WILLIAM E. SMITH TRUCKING, INC. (State court document filed in Surry County Superior Court Division, case no. 11-CVS-429, listed as additional attachment to Petition for Removal.) (Sheets, Jamie) |
| Filing 4 Summons Issued as to CATERPILLAR, INC. (State court document filed in Surry County Superior Court Division, case no. 11-CVS-429, issued 4/4/2011, listed as additional attachment to Petition for Removal.) (Sheets, Jamie) |
| Filing 3 COMPLAINT against RUSH TRUCK CENTERS OF NORTH CAROLINA, INC., RUSH TRUCK LEASING, INC., PETERBILT CAROLINA, INC., CAROLINA CAT, INC., CATERPILLAR, INC., filed by WILLIAM E. SMITH TRUCKING, INC. (State court document filed in Surry County Superior Court Division, case no. 11-CVS-429, listed as additional attachment to Petition for Removal.) (Sheets, Jamie) |
| CASE REFERRED to Mediation pursuant to Local Rule 83.9b of the Rules of Practice and Procedure of this Court. Please go to our website form directory for a list of mediators which must be served on all parties. (Sheets, Jamie) |
| Filing 2 PETITION FOR REMOVAL from Surry County Superior Court, case number 11-cvs-429. Filing fee $ 350 receipt number 0418-1004106, filed by CATERPILLAR INC.. (Attachments: #1 Exhibit A - Notice of Dismissal With Prejudice, #2 Exhibit B - September 21, 2011 E-mail regarding Dismissal, #3 Exhibit C - September 14, 2011 E-mail, #4 Exhibit D - Ritzie v. J&J Investments and Sales, Inc., #5 Exhibit E - SmithTruck 39 - SmithTruck 49, #6 Exhibit F - Plaintiff's Responses to Rush Truck Center's First Set of Discovery, #7 Exhibit G - Notice of Filing Notice of Removal) (ROBERTS, STEPHANIE) (Additional attachment(s) added on 10/24/2011: #8 State Complaint, #9 State Summons, #10 State Amended Complaint) (Sheets, Jamie) |
| Filing 1 NOTICE by CATERPILLAR INC. Civil Cover Sheet (ROBERTS, STEPHANIE) |
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