Frost, et al v. Hilliard Law, et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:24-cv-149-MOC-WCM
THIS MATTER is before the Court on Defendants’ Objection to Memorandum and
Recommendations (Doc. No. 85). For the following reasons, the Court OVERRULES
Defendants’ Objection, AFFIRMS and ADOPTS the Memorandum and Recommendation of
the U.S. magistrate judge, and ORDERS that this action shall be remanded to state court.
I. BACKGROUND
Plaintiffs are suing Defendants in Plaintiffs’ personal capacities and in their capacities as
Personal Representatives of the Estates of Shawna Rene Mays and Tristan Allen Mays. (Doc.
No. 38). Plaintiffs’ children Shawna Rene Mays and Tristan Allen Mays tragically died in a
vehicle fire. (Id. at 11). Plaintiffs filed suit against the manufacturer of the seat belt buckle that
allegedly prevented Frost from getting her children out of the vehicle during the fire. (Id.).
Plaintiffs’ products liability claim failed, and they are now suing their attorneys in the underlying
products liability case for legal malpractice. (Id. at 34–40).
GARY ALLEN MAYS JR.,
KRISTINA RENE FROST,
)
)
Individually and as Personal Representative of the
Estate of Shawna Rene Mays and as Personal
Representative of Tristan Allen Mays,
)
)
)
)
Plaintiffs, )
)
vs. ) ORDER
)
HILLIARD LAW, ET AL.,
Defendants.
)
)
)
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Plaintiffs state that they are citizens of Michigan in their individual capacities, but state
that they are citizens of North Carolina in their official capacities because the estates are citizens
of North Carolina. (Id. at 2). Plaintiffs allege that Defendants Attilio Vincenzo Colella and Moss
& Colella, PC, are also citizens of Michigan. (Id. at 7). Plaintiffs filed their lawsuit in state court,
and Defendants removed the case to this Court based on diversity jurisdiction under 28 U.S.C.
1332. (Doc. No. 1).
For a district court to have subject matter jurisdiction in a case removed based on
diversity of citizenship jurisdiction, the matter in controversy must exceed $75,000, exclusive of
interest and costs, and the parties must be “diverse,” meaning the parties must be citizens of
different states. See 28 U.S.C. § 1332(a). Here, the parties do not dispute that the amount in
controversy is met, but the parties disagree over whether the parties are diverse for the purpose
of Section 1332.
The U.S. magistrate judge issued a Memorandum and Recommendation, sua sponte,
recommending that this Court remand this matter to the state court based on lack of subject
matter jurisdiction. (Doc. No. 83). The U.S. magistrate judge reasoned that because Plaintiff
Frost—a Michigan citizen—has asserted claims in her individual capacity against Defendants—
also Michigan citizens—the parties are not completely diverse. (Id. at 11–15).
Defendants objected to the magistrate judge’s recommendation. (Doc. No. 85). They
contend that Frost’s citizenship in Michigan cannot be properly considered because she is the
administrator of the estates, and therefore her citizenship is the same as the estates’ even for
claims in her individual capacity. (Id.). Defendants also argue that Frost has no viable claim in
her individual capacity, and therefore her personal citizenship should be disregarded. (Id.).
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II. APPLICABLE STANDARD
A district court has authority to assign non-dispositive pretrial matters pending before the
court to a magistrate judge to “hear and determine.” 28 U.S.C. § 636(b)(1)(A). When reviewing
an objection to a magistrate judge’s order on a non-dispositive matter, the district court must set
aside or modify any portion of that order which is clearly erroneous or contrary to law. FED. R.
CRIM. P. 59(a); see also FED. R. CIV. P. 72(a). To show that a magistrate judge’s order is contrary
to law, the objecting party must show that the magistrate judge failed to apply or misapplied
statutes, case law, or procedural rules. See Catskill Dev. LLC v. Park Place Entm’t Corp., 206
F.R.D. 78, 86 (S.D.N.Y. 2002).
III. DISCUSSION
After conducting a de novo review of the Memorandum and Recommendation, the Court
finds that it lacks subject matter jurisdiction over this case for the reasons stated in the magistrate
judge’s order. As the magistrate judge noted, Plaintiffs alleged claims in their personal capacities
and, therefore, their citizenship is pertinent for diversity purposes. That they also alleged claims
in their capacities as administrators of the estates does not mean they assume the citizenship of
the estates for claims made in their individual capacities. Therefore, for purposes of diversity
jurisdiction under 28 U.S.C. § 1332, because at least one party on either side of the litigation is a
citizen of Michigan, the parties are not diverse. Accordingly, the Court agrees with the
magistrate judge’s decision that this Court lacks subject matter jurisdiction over this matter.
IV. CONCLUSION
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For the foregoing reasons, the Court DENIES Defendants’ Objection to Memorandum
and Recommendations (Doc. No. 85), affirm and adopts the Memorandum and Recommendation
of the magistrate judge, and remands this matter to state court.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Objection to Memorandum and
Recommendations (Doc. No. 85) is OVERRULED, the Court AFFIRMS and ADOPTS the
Memorandum and Recommendation, and this matter is REMANDED to state court.
Signed: August 26, 2026
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