United States District Court, D. South Dakota, Southern Division
MARK A. HULS, STEVEN E. PETERSON, CATHERINE M. PETERSON, and DAVID L. SKOGLUND, Plaintiffs,
DAVID M. MEYER and NANCY R. MEYER, Defendants.
ORDER GRANTING MOTION FOR REMAND
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Mark A. Huls, Catherine M. Peterson, Steven E. Peterson, and
David L. Skoglund, filed this lawsuit in the First Judicial
Circuit Court in McCook County, South Dakota. Docket 1-2.
Defendants, David and Nancy Meyer, removed the case to this
court. Docket 1. Plaintiffs filed a motion to remand the case
to state court. Docket 3. Defendants resist the motion.
Docket 8. For the reasons stated orally at the hearing and
below, plaintiffs' motion for remand is granted.
January 4, 2018, plaintiffs served a copy of the initial
complaint (Docket 1-2) upon defendants. Docket 1 ¶ 1.
Plaintiffs brought suit to settle disputes between the
parties in regards to four LLCs and the LLCs' leases.
Docket 1-2 ¶¶ 12-18. The initial complaint
contained six requests for relief. Docket 1-2 ¶ 19.
Plaintiffs requested a detail accounting, a restraining
order, the dissolution of several limited liability companies
and the division of the proceeds, attorney fees for violation
of an operating agreement, the cost of the action, and
whatever the court deemed equitable. Id. On
September 14, 2018, the First Judicial Circuit Court granted
plaintiffs leave to amend their initial complaint. Docket 1
¶ 2. On September 20, 2018, plaintiffs served the
amended complaint (Docket 1-34) upon defendants. Id.
This amended complaint contained new requests for relief.
See Docket 1-34 ¶ 63.
September 27, 2018, defendants filed a notice of removal with
this court. Docket 1. On October 9, 2018, plaintiffs filed a
motion for remand and a motion for an expedited hearing.
Docket 3; Docket 4. On October 22, 2018, a hearing was held
before the court. Docket 15. The court gave an oral finding
that the case was initially removable and granted
plaintiffs' motion for remand. Id.
defendant may remove a civil action that was filed in state
court to federal court if the federal district court has
original jurisdiction. 28 U.S.C. § 1441(a). A federal
district court has original jurisdiction of civil actions
where the amount in controversy is more than $75, 000 and the
parties are citizens of different states. 28 U.S.C. §
1332(a). Removal must be timely. See 28 U.S.C.
§ 1446. Notice of removal must be filed within 30 days
after the defendant receives “a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based.” 28 U.S.C. §
plaintiffs argue that the case was initially removable and
that defendants did not timely file a notice of removal.
Docket 5 at 3. The court agrees. Based on the initial
complaint, the court finds the case was initially removable.
First, the parties are diverse. Both parties acknowledge
complete diversity exists. See Docket 1 ¶ 10;
Docket 1-2 ¶¶ 1-4. Second, the amount in
controversy exceeded $75, 000. “[I]n a suit for
declaratory or injunctive relief[, ] the amount in
controversy is the value to the plaintiff of the right that
is in issue.” Usery v. Anadarko Petroleum
Corp., 606 F.3d 1017, 1018 (8th Cir. 2010).
Plaintiffs' request for relief included detailed
accounting, the dissolution of the LLCs, and attorney fees
for violation of an operating agreement. Docket 1-2 ¶
in the initial complaint, plaintiffs seek dissolution of four
LLCs that are jointly owned by the parties. The value of
plaintiffs' interests upon dissolution of the LLCs would
be significantly more than $75, 000. See Delta Fin. Corp.
v. Paul D. Comanduras & Assocs., 973 F.2d 301, 304
(4th Cir. 1992) (holding the dissolution of a partnership and
the liquidation of its assets could establish that value of
the plaintiff's interest upon dissolution would satisfy
the amount in controversy). In 2011, the property owned by
each LLC was appraised. Dockets 13-3, 13-4, 13-5, 13-6.
Magnum 43, LLC's assets were appraised at $815, 000.
Docket 13-3. Windmill Ridge, LLC's assets were appraised
at $825, 000. Docket 13-4. Rawhide, LLC's assets were
appraised at $815, 000. Docket 13-5. Remington, LLC's
assets were appraised at $815, 000. Docket 13-6.
Additionally, in 2013, David Meyer put together a balance
sheet that detailed his assets. Docket 13-7. The balance
sheet shows his investments in each of the LLCs were: $236,
636 in Magnum, LLC; $233, 363 in Windmill Ridge, LLC; $228,
919 in Rawhide, LLC; $352, 762 in Remington, LLC.
Id. Overall, it appears, based on the pleadings and
other filings, that the damages plaintiffs seek are greater
than $75, 000. See Kopp v. Kopp, 280 F.3d 883, 885
(8th Cir. 2002). Thus, the case was initially removable.
did not remove the case within the 30-day deadline.
Plaintiffs' original complaint was filed in state court
on January 4, 2018. Docket 1-2. To be timely, defendants must
have filed their notice of removal by February 5, 2018.
Defendants, however, did not give notice of removal until
September 27, 2018. Docket 1. Thus, defendants' notice of
removal was not timely filed. The court remands the case.
Attorney Fees and Sanctions
this court has ordered the case to be remanded, the payment
of “just costs and any actual expenses, including
attorney fees, incurred as a result of the removal” may
be required. 28 U.S.C. § 1447(c). The standard for
awarding fees turns on the reasonableness of the removal.
Convent Corp. v. City of N. Little Rock, 784 F.3d
479, 483 (8th Cir. 2015). “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. Conversely,
when an objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005).
the court finds that there was an objectively reasonable
basis for removal. First, the court takes into consideration
the lack of case law determining the amount in controversy
when a complaint seeks the dissolution of an LLC and the
division of its assets. Second, the amended complaint added
new causes of actions that clearly put defendants on notice
that plaintiffs were seeking damages over the amount in