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Murray v. Murray

United States District Court, S.D. West Virginia, Charleston Division

April 10, 2017

LINDA MURRAY, et al., Plaintiffs,
v.
LINDA LOU MURRAY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Thomas E. Johnston, UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendant Mateo Cortez's (“Cortez”) Motion to Realign the Parties, (ECF No. 3), Defendant Connie Lee Keith Barry's (“Barry”) Motion to Remand and for Attorney Fees and Costs, (ECF No. 7), Plaintiff Linda Murray's (“Murray”) Motion to Remand and for Award of Attorneys' Fees and Costs, (ECF No. 13), Cortez's Motion to Dismiss, (ECF No. 21), and Barry's two Motions for Leave to File Surreply to Give Notice of Developments Relating to the Texas Litigation, (ECF Nos. 32, 34).[1] For the reasons that follow, the Court GRANTS IN PART Barry's and Murray's motions to remand, (ECF Nos. 7, 13), insofar as they seek to remand the case back to state court, and DENIES IN PART the motions to remand insofar as they seek an award for attorneys' fees and costs. The Court further REMANDS the case and DENIES AS MOOT all remaining motions, (ECF Nos. 3, 21, 24, 32, 34).

         I. BACKGROUND

         This case arises out of Plaintiff Murray's attempt, as successor trustee of the William D. Short and Phyllis D. Short Revocable Living Trust (“the Trust”), to distribute trust funds to various beneficiaries as intended by the Trust's decedent settlors. (ECF No. 1-2 at 2-3, 23-24.) The individual defendants in the litigation, with the exception of Cortez, are alleged beneficiaries, and all the named defendants are citizens of West Virginia, Florida, North Carolina, and Texas. (See Id. at 13-18, 22-23.)

         The original Complaint was filed in the Circuit Court of Wirt County, West Virginia, on November 20, 2015, and it contains the pertinent provisions of the Trust. (ECF No. 1-2 at 3-13.) The Trust gives Murray, as successor trustee, “absolute [discretion] as long as it is exercised in the best interests of the current income beneficiary.” (Id. at 12.) Murray avers in the Complaint that “some claims are still pending in Bankruptcy Court [in Texas][2] and that one or more payments in an unknown amount may be received on such claims at an unspecified future dates” for which she seeks a court order providing her the “legal authority and ability to sign any documentation that initiates litigation and/or legal claims; accept conditions for damages; and waive, release, transfer or accept conditions accompanying or as a prerequisite to the delivery of funds or assets as compensation for damages resulting from the exposure of William D. Short, deceased, to asbestos-containing products.” (Id. at 19-20 ¶ 9.) She also seeks court approval for compensation to be paid to her from the Trust assets for the “more than 3500 hours of her time [she devoted] to managing the Trust.” (Id. at 22 ¶ 12.) Ultimately, Murray desires a court order “directing the distribution of the assets of the Trust to those persons determined by th[e] [c]ourt to be entitled to receive the same in such proportions as may be determined by th[e] court to be proper and in conformity with the intent of the settlors of the Trust.” (Id. at 23 ¶ 3.)

         Cortez removed this matter to this Court on October 21, 2016, on the basis of diversity jurisdiction. (ECF No. 1, 4.) He claims that removal was not proper at the time of the Complaint's filing because “[i]t was not until the Plaintiff Trustee filed a motion for summary judgment [in state court] that it became clear that all of the Shorts' Siblings were in agreement with the distribution identified by Plaintiff Trustee.” (Id. at 3 ¶ 7; see also Id. at 6 ¶ 13.) Upon the filing of that summary judgment motion, Cortez avers that complete diversity was created by aligning the parties by their interest in the following manner:

Linda Lou Murray, individually and as Trustee (West Virginia citizen), Charlene Rae Flesher Johnston (West Virginia citizen); Charlotte Fae Flesher Ash (Florida citizen); Sandra Kay Flesher Brown (West Virginia citizen); Thomas Wayne Marks (West Virginia citizen); James Berl Marks (West Virginia citizen); Betty Jo Webb (West Virginia citizen); Patricia Ann Marks Chapman (West Virginia citizen); Lisa Ann Rader Smith (West Virginia citizen); Charles Bruce Jr. (West Virginia citizen); Virginia Ann Roberts Villers (Florida citizen); Randall Wayne Davis (North Carolina citizen); Sherry Lynn Whited Salsbury (West Virginia citizen); Terry Lee Whited (West Virginia citizen); Michael Ray Whited (West Virginia citizen); Donald Leaman Whited (West Virginia citizen); Connie Lou Keith Barry (Florida citizen); Amanda Pettry (Ohio citizen); Tywanna Annette Pettry (Ohio citizen); Sheila D. Pettry (Ohio citizen); Magen Elizabeth Whited (West Virginia citizen); and Charles Gregory Whited (West Virginia citizen), Plaintiffs,
v.
Mateo Cortez (Texas citizen), Defendant.

(See Id. at 3 ¶ 9, 4-5 ¶¶ 3-6.) Cortez further states that “[t]he Trust exceeds $75, 000.00.” (Id. at 9 ¶ 29.)

         Cortez filed the Motion to Realign the Parties on October 24, 2016, (ECF No. 3), and Barry responded to the motion on November 7, 2016, (ECF No. 9). Barry filed her Motion to Remand and for Attorney Fees and Costs on November 7, 2016. (ECF No. 7.) Cortez responded to the motion on November 21, 2016, (ECF No. 18), and Barry filed a reply on November 28, 2016, (ECF No. 25). Murray filed her Motion to Remand and for Award of Attorneys' Fees and Costs on November 11, 2016. (ECF No. 13.) Cortez responded to the motion on November 23, 2016, (ECF No. 23), and Murray filed a reply on December 1, 2016, (ECF No. 27).[3] Cortez filed his Motion to Dismiss on November 23, 2016, (ECF No. 21). Barry responded to the Motion to Dismiss on December 7, 2016, (ECF No. 28), and Murray joined in that response on December 8, 2016, (ECF No. 29). Cortez replied to both Barry's response and Murray's joinder in response on December 14 and 15, 2016, respectively, (ECF Nos. 30, 31). Barry filed a Motion for Leave to File Surreply to Give Notice of Developments Relating to the Texas Litigation on December 22, 2016, (ECF No. 32), and Cortez responded on January 4, 2017, (ECF No. 33). Barry filed a second Motion for Leave to File Surreply to Give Notice of Developments Relating to the Texas Litigation on February 14, 2017, (ECF No. 24), and Cortez responded to the second motion on February 27, 2017, (ECF No. 35). These motions are briefed and ripe for adjudication.

         II. STANDARD OF REVIEW

         Article III of the United States Constitution provides, in pertinent part, that “[t]he judicial Power shall extend . . . to Controversies . . . between Citizens of different States.” U.S. Const. art. III, § 2. “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).

         Congress provided a right to remove a case from state to federal court under 28 U.S.C. § 1441. This ...


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