John Hatcher v. Ron Ferguson


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-1501 Doc: 9 Filed: 11/15/2016 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1501 JOHN D. HATCHER, individually and as members of the Architectural Committee of Mill Creek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 Chief Judge, Decided: and AGEE and November 15, 2016 THACKER, Circuit Dismissed in part and affirmed in part by unpublished per curiam opinion. Appeal: 16-1501 Doc: 9 Filed: 11/15/2016 Pg: 2 of 7 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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 16-1501 Doc: 9 Filed: 11/15/2016 Pg: 3 of 7 PER CURIAM: This appeal arises from a civil action filed in April 2013 in South Carolina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. 3 Appeal: 16-1501 Doc: 9 Filed: 11/15/2016 Pg: 4 of 7 “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 “§ 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 Appeal: 16-1501 Doc: 9 Filed: 11/15/2016 Pg: 5 of 7 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 Appeal: 16-1501 Co., Doc: 9 772 district Filed: 11/15/2016 F.3d 1001, court’s discretion. 1008-09 decision Pg: 6 of 7 (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 6 Appeal: 16-1501 Doc: 9 reasons. Filed: 11/15/2016 Pg: 7 of 7 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 7

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