Opinion
C. A. 6:23-5030-BHH-KDW
12-12-2023
Antonio Celester, Plaintiff, v. Sun Trust Bank, also known as Truist Bank; and Snatch Master LLC, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
On August 21, 2023, Plaintiff Antonio Celester filed suit in the Greenville County Court of Common Pleas (the “State Court”) against Defendants for breach of contract, conversion, and defamation related to his purchase and the subsequent repossession of a vehicle. ECF No. 1-1. On October 6, 2023, Defendant Truist Bank (“Truist”)filed a Notice of Removal, seeking to remove this case to federal court, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, on the basis of diversity jurisdiction. ECF No. 1. Snatch Master LLC has not yet made an appearance in this case. Plaintiff filed a Motion to Remand on November 11, 2023 and Defendant Truist Bank filed a response two weeks later. ECF Nos. 15; 17. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters to be referred to a United States Magistrate Judge. The undersigned has reviewed this Motion and Response, and now issues this Report for the district judge's consideration. See Carter v. Cummins Inc., No. 2:10-cv-1408-DCN-RSC, 2010 WL 5139842, at *2 (D.S.C. Dec. 10, 2010) (explaining that the Fourth Circuit has not squarely addressed whether a motion to remand is a “dispositive order” outside the power of a magistrate judge under § 636 (b)(1)(A) before ultimately holding that a magistrate judge's order is dispositive and should be treated as a Report and Recommendation). This matter is now ready for review.
Defendant Truist asserts that Plaintiff has incorrectly identified this Defendant as “SunTrust Bank aka Truist Bank.” ECF No. 17 at 1.
In his Motion, Plaintiff seeks several grounds for relief and includes his own Affidavit in support of his Motion. First, Plaintiff requests this court enter default in state court for Defendant's alleged “failure to plea in a timely manner.” ECF No. 15.Plaintiff argues that Defendant's Notice of Removal is untimely. This is so, according to Plaintiff, because Defendant did not respond to the original Complaint in state court, but rather, removed the matter to this court. According to Plaintiff, Defendant's removal is therefore time-barred. See ECF No. 15 at 4-5. In Response, Defendant Truist points out, as it did in its initial Notice of Removal, that it was never properly served by Plaintiff. Nevertheless, despite what Defendant Truist claims to be a defect in service, Defendant Truist timely removed the action to this court. The right to remove a case from state court to federal court is found in 28 U.S.C. § 1441. The statute provides, “any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The petition for removal shall be filed within 30 days after service on a defendant. 28 U.S.C. § 1441(b). Plaintiff himself asserts that Defendants had until October 7, 2023 to file a response to his state court complaint, because he alleges he served Defendant Truist on September 7, 2023. ECF No.15 at 2, 5. Because the Notice of Removal was filed on or before this date, the Notice of Removal was timely. As to the applicable time for filing a responsive pleading, state law does not control a removed case. Wright v. Central States, Southeast and Southwest Areas, Health and Welfare Fund, 440 F.Supp. 1235, 1236 (D.S.C. 1977). Once a case is removed, the federal rules govern the time for filing an answer. Id. Pursuant to Federal Rule of Civil Procedure 81(c), a defendant who did not file a responsive pleading prior to removal must answer or present other defenses or objections within the longest of these periods: 21 days after receiving-through service or otherwise-a copy of the initial pleading; 21 days after being served with the summons for an initial pleading; or 7 days after the filing of the notice of removal. Fed.R.Civ.P. 81(c)(emphasis added). Defendant Truist filed its Answer in federal court on October 13, 2023, within seven days after filing its Notice of Removal. Defendant Truist has filed an Answer in federal court pursuant to this rule. Accordingly, the undersigned does not agree with Plaintiff's contention that Defendant Truist is in default.
Once an action has been successfully removed, the state court's jurisdiction is suspended, and the case proceeds as if it began in the federal court. Limehouse v. Hulsey, 744 S.E.2d 566, 577, 404 S.C. 93 (S.C. 2013). In his Motion to Remand, Plaintiff cites to Limehouse v. Hulsey, 723 S.E.2d 211, 397 S.C. 49 (S.C. Ct. App. 2011), for the proposition that a defendant may not file an answer to a complaint after removal to federal court, and instead the defendant must file an answer in the time provided in state court. However, this case cited by Plaintiff is procedurally distinct from the case here in that the defendant in the case cited by Plaintiff did not timely file a responsive pleading in state court after a federal court remanded the case. Aside from that, the Supreme Court of South Carolina reversed the decision in Limehouse, on a distinct, but related ground as to the jurisdiction of the state court after an order remanding a case has been entered.
Plaintiff further argues that Defendant Truist failed to receive the consent of Snatch Master LLC in removing this case to federal court. ECF No. 15 at 6. The Fourth Circuit has recognized the “the rule of unanimity,” which states that all defendants in a case need to join or consent to removal. Palmetto Auto. Sprinkler Co., Inc. v. Smith Cooper Intern., Inc., 995 F.Supp.2d 492, 494 (D.S.C. 2014) (citing Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013)). However, federal courts have also recognized exceptions to the rule, one being that a defendant need not join in or consent to removal if that defendant has not been served with process at the time the removal was filed. Id. Thus, a defendant filing a notice of removal must get the consent of all defendants who have been served at the time of removal. Individual defendants have 30 days from the time they are served with process or a complaint to join in an otherwise valid removal petition. McKinney v. Bd. of Trustees of Maryland Comm. College, 955 F.2d 924, 928 (4th Cir. 1992). Indeed, Plaintiff admits in his own Motion that Defendant Snatch Master LLC has not yet been served. To that end, Plaintiff claims he has attached a “motion under 28 U.S. Code 1448” to have this Defendant served, (ECF No. 15 at 7); however, no such attachment is included on the docket. Accordingly, the undersigned rejects Plaintiff's argument that the failure to obtain Snatch Master LLC's consent in this case renders the Notice of Removal defective.
Aside from these procedural issues, Plaintiff argues that he is not a “citizen” of South Carolina; rather, he is domiciled in Georgia. ECF No. 15 at 5-6. Because he contends Snatch Master LLC is a citizen of Georgia, he argues complete diversity of citizenship does not exist. He further argues that the amount in controversy is not above $75,000.00 when not considered in the aggregate as to both Defendants. Id. at 5. A plaintiff's aggregation of claims against opposing parties can satisfy the monetary requirement for federal jurisdiction. Tai v. Certainteed Corp., 3:12-cv-616-RJC-DSC, 2012 WL 6590467, at *3 (W.D. N.C. 2012) (quoting Stone v. Stone, 405 F.2d 94, 96 (4th Cir. 1968)(“[i]t is settled law that a plaintiff may aggregate his claims against an opposing party and thereby satisfy the monetary requirement for federal jurisdiction.”)); see also Bergman v. SSC Monroe Operating Co., LLC, 2011 WL 6296653 (W.D. N.C. 2011) (holding that “in excess of $10,000” claims for damages against ten related parties resulted in an aggregated amount of $200,000). Aside from that argument, Plaintiff seeks a total of $20,000 in compensatory damages for breach of contract from Defendant Truist, $50,000 in compensatory damages from Defendant Truist for defamation and destruction, and $50,000 from Defendant Truist for emotional stress and anguish, in addition to seeking an additional $45,000 jointly in damages from both Defendants. Plaintiff satisfies the amount in controversy requirement as to Defendant Truist. Accordingly, the undersigned rejects Plaintiff's argument that the amount in controversy is not satisfied.
The thornier issue is the determination of Plaintiff's citizenship for diversity purposes. It is well-settled law that diversity of citizenship is determined or assessed as of the time of commencement of suit. Rowland v. Patterson, 852 F.2d 108, 110 (4th Cir. 1988); see also Porsche Cars North America, Inc. v. Porsche.net, 302 F.3d 248, 255-56 (4th Cir. 2002) (“a court determines the existence of diversity jurisdiction ‘at the time the action is filed,' regardless of later changes in originally crucial facts such as the parties' citizenship or amount in controversy.”). As pointed out by Defendant Truist, Plaintiff alleged in his Complaint that he is a citizen of South Carolina. However, Plaintiff argues that Defendant “erroneously reported” that he is a citizen of South Carolina, suggesting that Defendant Truist cannot rely on Plaintiff's own filing, wherein he alleged himself to be a citizen of South Carolina. See ECF No. 15 at 6. Plaintiff argues that Defendant Truist cannot rely on Plaintiff's own assertions regarding his “citizenship” because it matters where he is “domiciled,” and Plaintiff alleges his domicile is in Georgia. Defendant Truist does not contest Plaintiff's allegation that Snatch Master LLC is a citizen of Georgia, such that complete diversity between the parties would not exist were this court to determine that Plaintiff is also a citizen of Georgia.
When a plaintiff challenges removal, the defendant “bears the burden of demonstrating that removal jurisdiction is proper.” Scott v. Cricket Comm., LLC, 865 F.3d 189, 194 (4th Cir. 2017). Here, Defendant Truist argues that it took Plaintiff at his word, and thus did not engage in an analysis of Plaintiff's domicile. ECF No. 17 at 2. Defendant Truist argues further that this court need not engage in any such analysis because Plaintiff is bound by his Complaint. Still, the undersigned is mindful that Plaintiff is a pro se plaintiff. Pro se complaints are to be construed liberally. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
State citizenship for the purposes of diversity jurisdiction does not depend on one's residence, but instead on one's national citizenship and domicile, and the existence of citizenship cannot be conferred from allegations of mere residence, standing alone. Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660, 663 (4th Cir. 1998). An individual is a citizen of the state in which he or she is domiciled. Johnson v. Advance Am., 549 F.3d 932, 937 n. 2 (4th Cir. 2008). Domicile requires one's physical presence, along with the intent to make a State one's home. Id. An allegation of residency does not establish citizenship; however, one's domicile is determinative of citizenship. Id. at 937 n. 2. Courts determine a party's domicile on a case-by-case basis, considering factors such as a party's current residence, voter registration, voting practices, situs of real and personal property, location of bank accounts, membership in organizations, place of employment or business, driver's license and automobile registration, and payment of taxes. 13E Charles Alan Wright & Arthur R. Miller, The Requirement and Meaning of Citizenship- Determination of a Person's Domicile, Fed. Prac. & Proc. Juris. § 3612 (3d ed. 2023 update). In his affidavit, attached to his Motion, Plaintiff asserts that he moved to Atlanta, Georgia in April of 2021, more than two years prior to filing this lawsuit. ECF No. 15-1 at 1. Plaintiff further provides that on April 9, 2021, he mailed a “Change of Information” form to Defendant Truist, indicating his address was in Atlanta, Georgia. Id. at 2. Plaintiff states that Georgia is both his current domicile and residence. Id. He states that he lives, works, and votes in Georgia. Id. Plaintiff apparently pays federal and state taxes in Georgia. Id. He asserts his vehicle was repossessed from his residence in Georgia. Id. at 3. This affidavit is signed by Plaintiff.Plaintiff also points out in his Motion he is employed in Georgia, and that a substantial portion of the alleged acts (such as the repossession of his vehicle) occurred in Georgia. ECF No. 15 at 6.
The undersigned notes that it appears he made a mistake in dating his form on the final page, as it is dated October 30, 2022; however, the notary public provides the correct date. See ECF No. 15-1 at 9.
Plaintiff's address on his filings submitted to the state court has a Georgia address. ECF No. 1-1. In the state court Complaint, Plaintiff identifies himself as “Pro se, in this matter and a citizen of South Carolina and a consumer during the matter of business that took place in South Carolina.” ECF No. 1-1 at 6 (emphasis added). This statement is consistent with Plaintiff's affidavit in which he indicates that when he signed the retail installment agreement in November 2020, he had two residences-one in Massachusetts and one in South Carolina. ECF No. 15-1 at 1. Accordingly, the undersigned finds that, based on Plaintiff's affidavit, it appears that at the time the action was filed on August 14, 2023, complete diversity did not exist. For this reason, the undersigned recommends granting the Motion to Remand, ECF No. 15.
Plaintiff also seeks to use his Motion to Remand to lodge objections to certain exhibits attached to Defendant Truist's Answer. Plaintiff argues that he objects to the exhibits and objects to their inclusion in this action to remove. First, Plaintiff does not advance his argument beyond arguing he objects to them under the South Carolina Uniform Business Records as Evidence Act. Second, these documents are not being relied upon as part of any argument related to his Motion to Remand. Third, beyond “objecting” to these documents, Plaintiff does not argue for any requested relief. Accordingly, the undersigned does not find it appropriate to determine the inclusion of exhibits at this time.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).