THE CHOSIN FEW v. SCOTT, (W.D.N.C. 1998)

Max O. Cogburn, Jr., U.S.M.J.

THIS MATTER is before the court upon plaintiff's Motion to Remand. Having considered that motion carefully, reviewed the pleadings, and conducted a hearing at which oral arguments were presented by respective counsel, the undersigned enters the following findings, conclusions, and recommendation.

I. Procedural History

This action originally was filed by plaintiff in state court in Massachusetts. On January 6, 1998, defendants removed it from the state to the federal court in Massachusetts. In doing so, they contended that plaintiff had alleged a claim — federal trademark infringement — over which the federal courts had original junsdiction. Later that month, plaintiff filed a motion in accordance with Rule 15, Federal Rules of Civil Procedure, to amend its complaint to delete the federal claim upon which original jurisdiction laid. On March 4 1998, the federal district court in Massachusetts allowed the proposed amendment of the complaint. On March 12, 1998, defendants moved to transfer the action to this district. In its opposition to the Motion to Transfer, which was filed 12 days after the court allowed amendment of the complaint, plaintiff failed to either request remand or in any manner raise the jurisdictional issue while this case was still in Massachusetts. After weighing the relevant factors, the federal district court in Massachusetts concluded that the federal district court in this district of North Carolina would be a more convenient forum for resolution of this dispute. The law of the case having been established, the undersigned can find no reason to revisit the issue of convenience. The only issue before this court is whether, absent a federal question or diversity of the parties, this court should continue to exercise its supplemental jurisdiction over the remaining state-law claims. At the hearing, the parties concurred with the undersigned's conclusion that it would not be appropriate to remand the case to a court in which the action was not filed, i.e., the North Carolina General Courts of Justice, and would only be appropriate to remand it to the state court of Massachusetts, where it originally was filed. See 14A Wright, Miller Cooper, Federal Practice and Procedure, § 3739, at 286-87 (1996) ("Federal judges do not have the authority to "transfer' cases by remanding them to different courts within the same state . .. ."). See also Straus v. Straus, 987 F. Supp. 52 (D. Mass. 1997).

Plaintiff is a Massachusetts corporation whose only place of business is an office in the basement of a private home in Haywood County, North Carolina. Nonprofit in nature, the organization is for veterans of a particularly arduous battle that took place during the Korean conflict. The individual defendants are members of the organization and formerly were or presently are officers of it. Defendant Scott lives in this district, Defendant Slawson lives in South Carolina, and Defendant Oly lives in Florida. This action primarily arises from an internal dispute concerning the validity of an election of officers of the corporation and a determination of who in fact controls the corporation under Massachusetts corporate law. Just as the district judge in Massachusetts admonished the parties initially, the undersigned must reiterate that while a justiciable cause of action may exist among these parties, a greater waste of time or money could hardly be imagined over an issue which is so trivial when compared with the common, horrific human tragedy these men shared.

The law in this circuit is clear on the issue presented. When determining whether to retain supplemental jurisdiction over state claims when all federal claims have been dismissed, the district court may consider the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy. Shanaghan v. Cahill, 58 F.3d 106 (4th Cir. 1995). As discussed briefly above, the district court in Massachusetts has already determined that North Carolina is a more convenient forum than Massachusetts. Inasmuch as plaintiff had an opportunity to raise this same motion while the case was still in Massachusetts and did not do so, it would be inherently unfair to now remand this action to Massachusetts. Finally, judicial economy would not be served by returning this action to state court after this court has already conducted an initial pretrial conference and placed this matter on a track for resolution at trial. The undersigned, therefore, will recommend that this court continue to exercise its supplemental jurisdiction in the interests of fairness, comity, and judicial economy.

IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that plaintiff's Motion to Remand be DENIED.

The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b) (1 )(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied 467 U.S. 1208 (1984).

This Memorandum and Recommendation is entered in response to plaintiff's Motion to Remand (#8).

This 13th day of August, 1998.