John Hatcher v. Ron Ferguson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:15-cv-05032-TMC. Mailed to: Ron Ferguson. Copies to all parties and the district court/agency. [999968201].. [16-1501]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1501

JOHN D. HATCHER, individually and as members of the
Architectural Committee of Mill Creek Estates; RACHEL
SHALULY, individually and as members of the Architectural
Committee of Mill Creek Estates; JAMES F. GILBERT,
individually and as members of the Architectural Committee
of Mill Creek Estates; MOLLY A. MILLER, individually and as
members of the Architectural Committee of Mill Creek
Estates; MICHAEL STEHNEY, individually and as members of
the Architectural Committee of Mill Creek Estates,
Plaintiffs - Appellees,
v.
RON FERGUSON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:15-cv-05032-TMC)

Submitted:

October 31, 2016

Before GREGORY,
Judges.

Chief

Judge,

Decided:

and

AGEE

and

November 15, 2016

THACKER,

Circuit

Dismissed in part and affirmed in part by unpublished per curiam
opinion.

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Ron Ferguson, Appellant Pro Se.
Rodney M. Brown, RODNEY M.
BROWN, PA, Fountain Inn, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This appeal arises from a civil action filed in April 2013
in

South

Carolina

state

court

by

John

D.

Hatcher,

Rachel

Shaluly, James F. Gilbert, Molly A. Miller, and Michael Stehney,
individually and as members of the Architectural Committee of
Mill

Creek

Estates

(collectively,

Defendant “Ron Ferguson.” *

“Plaintiffs”),

against

Following two unsuccessful attempts

to remove the case to federal district court, Ferguson again
removed the action in December 2015, purportedly on the basis of
diversity

jurisdiction

under

28 U.S.C

§§ 1332,

1441

(2012).

Plaintiffs moved to remand the case again to state court and
sought

an

attempts.

order

prohibiting

Ferguson

from

appeal

court’s
removals.

remand

The district court adopted the magistrate judge’s

recommendation to grant Plaintiffs’ motion.
to

further

the

district

decision

to

court’s

remand

and

order,
its

Ferguson now seeks

challenging
prohibition

both
on

the

future

For the reasons that follow, we dismiss the appeal in

part and affirm the district court’s order in part.

*

We note that the record and Ferguson’s appellate briefs
give rise to some question as to the identity of the properly
joined parties to this action.
Although we rely on the party
designation assigned by the district court, we note that our
disposition is unaffected by this dispute, regardless of whether
the proper defendant is Ronald E. Ferguson, Susan Ferguson,
Ronald J. Ferguson, or some combination of these individuals.

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“Congress has placed broad restrictions on the power of
federal

appellate

courts

to

review

district

remanding removed cases to state court.”
Inc.

v.

Petrarca,

generally

are

28 U.S.C.

516

“not

§ 1447(d)

U.S.

124,

reviewable
(2012).

court

Things Remembered,

127

(1995).

on

appeal

However,

orders

the

Remand
or

orders

otherwise.”

Supreme

Court

has

explained that the restrictions on appellate review described in
Ҥ 1447(d)
§ 1447(c)

must

be

(2012)],

read
so

in

pari

that

materia

only

remands

with
based

[28
on

U.S.C.
grounds

specified in § 1447(c) are immune from review under § 1447(d).”
Things Remembered, 516 U.S. at 127.

Thus, § 1447(d) prohibits

appellate review only of remand orders “based on (1) a district
court’s lack of subject matter jurisdiction or (2) a defect in
removal other than lack of subject matter jurisdiction that was
raised by the motion of a party within 30 days after the notice
of removal was filed.”
Inc.,

519

F.3d

192,

Ellenburg v. Spartan Motors Chassis,

196

(4th

Cir.

2008)

(internal

quotation

marks omitted); see Doe v. Blair, 819 F.3d 64, 67 (4th Cir.
2016).
“[A]

district

court’s

mere

citation

to

§ 1447(c)

is

insufficient to bring a remand order within the purview of that
provision.”

In re Blackwater Sec. Consulting, LLC, 460 F.3d

576, 584 (4th Cir. 2006).

Before exercising appellate review

over

first

a

remand

order,

we

4

must

evaluate

the

order’s

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substantive reasoning “to determine whether it was issued based
upon

the

district

court’s

matter jurisdiction.”

perception

that

it

lacked

subject

Blair, 819 F.3d at 67 (internal quotation

marks omitted).
Here,

the

district

court

remanded

the

action

after

concluding that it could not exercise diversity subject matter
jurisdiction because the parties were not completely diverse at
the time of removal.
court

is

not

a

The defect identified by the district

defect

in

subject

matter

jurisdiction,

but

instead a procedural defect based on Ferguson’s failure to meet
the statutory requirements of § 1441(a).

See Grupo Dataflux v.

Atlas Global Grp., L.P., 541 U.S. 567, 574 (2004); Caterpillar
Inc. v. Lewis, 519 U.S. 61, 73 (1996).

Because we conclude

Plaintiffs adequately identified and relied upon this defect in
their timely motion to remand, we conclude we lack jurisdiction
to review the court’s decision to remand.

Further, insofar as

Ferguson attempts to challenge the district court’s alternative
holding that remand was warranted because the removal notice was
untimely under 28 U.S.C. § 1446(c) (2012), we conclude the issue
is moot and decline to address it.
While
precluded
preclude

review
under
our

of

28

review

the

district

U.S.C.
of

§ 1447(d),

the

prohibiting future removals.

court’s

portion

that
of

remand

order

is

statute

does

not

the

court’s

order

See Barlow v. Colgate Palmolive
5

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Co.,

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772

district

Filed: 11/15/2016

F.3d

1001,

court’s

discretion.

1008-09

decision

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(4th

to

Cir.

impose

2014).

We

sanctions

for

review
abuse

a
of

See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d

812, 817 (4th Cir. 2004); Chaudhry v. Gallerizzo, 174 F.3d 394,
410 (4th Cir. 1999).

In so doing, we may affirm for any reason

appearing from the record.

See United States v. Basham, 789

F.3d 358, 379 (4th Cir. 2015), cert. denied, 136 S. Ct. 1449
(2016).
The

All

Writs

Act,

28

U.S.C.

§ 1651(a)

(2012),

permits

federal courts to “limit access to the courts by vexatious and
repetitive litigants.”

Cromer, 390 F.3d at 817; see Chambers v.

NASCO, Inc., 501 U.S. 32, 44-45 (1991).
remedy”

is

to

be

used

only

Although this “drastic

sparingly

to

confront

exigent

circumstances, filing limitations may be appropriate to address
“a litigant’s continuous abuse of the judicial process” through
“meritless and repetitive” filings.
As

the

district

court

Cromer, 390 F.3d at 817.

recognized,

the

removal

statutes

should not be manipulated to permit “strategic delay interposed
by

a

defendant

in

an

effort

to

determine

receptivity to his litigating position.”

the

state

court's

Lovern v. Gen. Motors

Corp., 121 F.3d 160, 163 (4th Cir. 1997).

The record of the

proceedings in state court and this court amply supported the
district court’s determination that Ferguson’s repeated removals
were intended to manipulate the removal process for strategic
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Ferguson was provided notice of the proposed sanction

and an opportunity to respond, and the court’s prohibition was
narrowly tailored to the circumstances at hand.
F.3d at 818-19.

See Cromer, 390

We therefore discern no abuse of discretion in

the district court’s decision to prohibit Ferguson from future
attempts to remove the same state court action.
Accordingly, we dismiss the appeal in part, insofar as it
seeks

review

of

the

district

action to state court.

court’s

decision

to

remand

the

We affirm the district court’s order in

part, insofar as it bars Ferguson from future removal attempts.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

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