Opinion
CIVIL ACTION NO. 2:18-2882-DCN-BM
02-08-2019
Kelly Krajeck and Molly Rhyne, Plaintiffs, v. R. Chamberlain Chestnut, Individually and as Owner/Operator of Three Hundred Seventy-Three (373) Huger, LLC; R. Chamberlain Chestnut, II, individually and as Agent/Employee of O'Shaughnessy Real Estate, Inc., d/b/a Carolina One Real Estate; Rajiv Gupta, Individually and as Owner/Operator of R-K Associates, LLC d/b/a RK Engineers and Builders; R-K Associates, LLC, d/b/a RK Engineers and Builders; O'Shaughnessy Real Estate, Inc., d/b/a Carolina One Real Estate; Three Hundred Seventy-Three (373) Huger, LLC, Individually and d/b/a Chestnut Court; City of Charleston; and Zourzoukis Homes, LLC; Defendants.
REPORT AND RECOMMENDATION
This case was originally filed in the South Carolina Court of Common Pleas, but was removed to this Court by the Defendants on the basis of federal question jurisdiction. Specifically, Defendants stated that Plaintiffs had set forth a federal constitutional "takings" claim against the Defendant City of Charleston in their Sixth Cause of Action. However, Plaintiff's Sixth Cause of Action does not indicate that it is being brought under the United States Constitution, and neither the now Amended Complaint, or the original Complaint filed in state court, referenced any federal claims. Numerous motions are currently pending, including Plaintiffs' motion to remand filed December 4, 2018.
As Plaintiffs' Sixth Cause of Action could be pursued under the state, not federal, constitution; see Brinkman, et. al., v. Weston & Sampson, et. al., No. 16-169, 2016 WL 1258384, at * 3-4 (D.S.C. March 31, 2016) [South Carolina Constitution includes "takings" clause]; the Court entered an Order on January 29, 2019 directing the Plaintiffs to clarify their position on the following two issues within ten (10) days of the date of that Order: 1) are Plaintiffs only intending to pursue their claims, not limited to, but specifically addressing their inverse condemnation claim, based on state law and the state constitution and not on federal law?, and 2) do Plaintiffs concede that if this Court has subject matter jurisdiction, that their motion to remand is untimely? The parties were further advised in that Order that if the Plaintiffs are only pursuing their Sixth Cause of Action as a state constitutional claim, then this case would be subject to remand to state court. See Stehney v. Ferguson, No. 16-3955, 2017 WL 92922563 (D.S.C. March 9, 2017) [Noting that the Plaintiff is the master of his claim and may avoid federal jurisdiction by exclusive reliance on state law], adopted by 2017 WL 2982114 (D.S.C. July7 13, 2017). However, if Plaintiffs confirmed that they are seeking relief in their Sixth Cause of Action under the United States Constitution, then the Court would turn to consideration of the other issues raised in the pending motions.
Plaintiffs' have now filed a response to the Court's Order in which they confirm that they are only asserting their Sixth Cause of Action as a state constitutional claim. See Court Docket No. 63. As such, there is no federal question jurisdiction under 28 U.S.C. § 1331, and a federal court must remand a case to state court if there is no federal question jurisdiction or diversity jurisdiction. Lyon v. Centimark Corp., 805 F.Supp. 333, 334 (E.D.N.C. 1992). It is well settled that federal courts are courts of limited jurisdiction, possessing only that power authorized by the constitution and statue; Willy v. Coastal Corp., 503 U.S. 131, 136-137 (1992); and because federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Turner v. Bank of North America, 4 U.S. 8, 11 (1799). Further, a defendant in a state court case may remove that case to a federal district court only if the state court action could have been filed in a federal district court, and the defendant seeking removal has the burden of establishing federal jurisdiction. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); Altimore v. Mount Mercy College, 420 F.3d 763, 768 (8th Cir. 2005)[The defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence]. Additionally, because the federal courts have limited jurisdiction and removal jurisdiction raises federalism concerns, a district court must strictly construe the removal statutes, with any doubts about federal jurisdiction to be resolved against removal. Chesire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C. 1990); see also Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004)[Courts are obligated to "construe removal jurisdiction strictly because of the 'significant federalism concerns' implicated."(quoting Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994))]; In re Prempro Products Liability Litigation, 591 F.3d 613, 620 (8th Cir. 2010)(citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007))["All doubts about federal jurisdiction should be resolved in favor of remand to state court."].
Therefore, as there are no federal claims presented in Plaintiffs' Complaint, it is recommended that the Plaintiffs' motion to remand be granted, and that this case be remanded back to state court for disposition.
While many Courts have held that orders on motions for remand are non-dispositive and can be issued by a United States Magistrate Judge in a non-consent case, it is not firmly established whether the undersigned can issue an order on a motion for remand, or whether a Report and Recommendation is required. Cf. Williams v. Beemiller, Inc., 527 F.3d 259 (2d Cir. 2008)[Finding that remand orders are dispositive]; Vogel v. U.S. Office Products Co., 258 F.3d 509, 514-517 (6th Cir. 2001)[same]; First Union Mortgage Co. v. Smith, 229 F.3d 992, 996-997 (10th Cir. 2000)[same]; In re U.S. Healthcare, 159 F.3d 142, 145-146 (3d Cir. 1998)[same]; Stanion v. Staley, No. 16-750, 2016 WL 3629087 at * 1, n. 1 (D.N.C. June 29, 2016); William E. Smith Trucking, Inc. v. Rush Trucking Centers of North Carolina, Inc., No. 11-887, 2012 WL 214155, at * 2-6 (M,D.N.C. Jan. 24, 2012) [Analyzing relevant statutes and caselaw and finding that remand order is nondispositive]; Pikkert v. Pastene, No. 03-1212, 2003 WL 21154296 (4
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge February 8, 2019
Charleston, South Carolina
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
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
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).
th Cir. May 20, 2013), cert. denied, 541 U.S. 987 (2014)[unpublished, but finding that a magistrate judge's remand order is not reviewable by the appellate court]; see Jones v. Unison Ins. Co., No. 00-1217, 2000 WL 1350648, at * 1 (4th Cir. Sept. 20, 2000) [Noting that Fourth Circuit has not addressed question of whether Magistrate Judge may issue remand orders in non-consent cases]. While the undersigned has issued orders on motions for remand in some circumstances, out of an abundance of caution this Report and Recommendation, instead of an Order, is being entered so that this matter may be reviewed by the District Judge before any remand of the case is certified.