Cooper v. George et al

Filing 28

ORDER and OPINION denying as moot without prejudice to raise in state court 5 Motion for Leave to Proceed in forma pauperis 14 REPORT AND RECOMMENDATION re 1 Notice of Removal, filed by Sandra A George, Tommy Georg e ; denying as moot without prejudice to raise in state court 10 Motion for Discovery; adopting Report and Recommendations re 14 Report and Recommendation; granting 21 Motion to Remand to State Court. Clerk's Notice: Attorneys/parties are responsible for supplementing the State Record with all documents filed in Federal Court. Signed by Honorable J Michelle Childs on 5/21/2013.(mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Christopher M. Cooper,

)
)
Plaintiff,
)
)
v.
)
)
)
Tommy George and Sandra A. George,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 1:13-CV-239-JMC

OPINION AND ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation
[Dkt. No. 14].

Plaintiff Christopher Cooper (“Plaintiff”) filed a negligence action against

Defendants Tommy George and Sandra A. George (“Defendants”) as a result of a September 4,
2009, car accident. [Dkt. No. 1-1]. Plaintiff filed the case in the state court of South Carolina,
County of Barnwell (Case No. 11-CP-06-456) on November 14, 2011. Id. Defendants removed
the action to this court on January 25, 2013, and immediately filed a counterclaim. [Dkt. No. 2].
The counterclaim alleged negligence, moral turpitude, perjury, bribery, fraud, and abuse of the
court process. Id.
The Magistrate Judge’s Report and Recommendation (“Report”), filed on February 15,
2013, recommends, upon an initial review of this court’s jurisdiction, that the case be remanded to
state court. Upon an independent review of the Report, record and case law, the court agrees with
the Magistrate Judge’s Report. The case is hereby REMANDED to state court.
STANDARD OF REVIEW
The Magistrate Judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate

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Judge makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility to make a final determination remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation to which specific objections are made, and the
court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
As thoroughly discussed in the Report, there is a split of authority as to whether a motion to
remand is a dispositive motion that requires a report and recommendation, or a non-dispositive
motion upon which a magistrate judge may enter an order (which is then reviewed under the more
deferential “clearly erroneous or contrary to law” standard of 28 U.S.C. § 636(b)(1)(A)). [Dkt.
No. 14 at 3-4]. The court need not determine whether a motion to remand is dispositive in this
instance. The Magistrate Judge submitted a Report rather than an order in an abundance of
caution and this court likewise has conducted a de novo review.
DISCUSSION
The Magistrate Judge found that pursuant to the dictate from the Supreme Court that
federal courts must “scrupulously confine their own jurisdiction to the precise limits which the
statute has defined,” Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 109 (1941) (internal quotation
omitted), that remand in this case was appropriate because the case presented neither diversity nor
federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332. [Dkt. No. 14 at 5].
Defendants timely filed an objection to the Report. [Dkt. No. 22]. Defendants’ first
objection is that because “all parties to this case do not reside in South Carolina, there is diversity
jurisdiction.” Id. at 22. Defendants do not deny that Plaintiff and Defendants are all citizens of
South Carolina. Defendants’ argument seems to be that if certain insurance companies were
joined to this action that there would be parties foreign to South Carolina. However, even if these
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parties were properly joined (which they are not at this juncture), complete diversity of parties is
required for federal court jurisdiction, meaning that the citizenship of each plaintiff must be
different from that of each defendant. Cent. W. Va. Energy Co. v. Mountain State Carbon, LLC,
636 F.3d 101, 103 (4th Cir. 2011). Thus, this court does not have diversity jurisdiction.
Next, Defendants assert that this court should exercise federal question jurisdiction
pursuant to 28 U.S.C. § 1331 because they have counterclaimed against the Blackville Police
Department under Title VII of the Civil Rights Act of 1964. This argument fails for several
reasons. First and most importantly, federal question jurisdiction follows the “well-pleaded
complaint rule,” which demands that the federal question be present on the face of a plaintiff’s
complaint. Harless v. CSX Hotels, Inc., 389 F.3d 444 (4th Cir. 2004). Thus, Plaintiff’s initial
complaint, which only alleged state law counts of negligence, controls whether this court may
exercise jurisdiction. Second, Defendants did not name the Blackville Police Department in their
counterclaim or allege any facts giving rise to a cause of action against the Department. Finally,
even if they had named the Department, Title VII of the Civil Rights Act protects against
employment discrimination on the basis of race, color, religion, sex and national origin. See 42
U.S.C. § 2000e et seq. In their objection to the Report, Defendants are not alleging employment
discrimination but an allegedly unlawful arrest. Title VII is therefore inapposite and the court
does not have federal question jurisdiction.
Moreover, even if this court did have jurisdiction over this action, as the Magistrate Judge
pointed out, the removal in this instance was untimely. The Magistrate Judge’s Report is adopted
and incorporated herein.
CONCLUSION
After a thorough review of the Report and the record in this case, the court ACCEPTS the
Magistrate Judge’s Report and Recommendation [Dkt. No. 14]. This case is REMANDED to
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South Carolina state court, County of Barnwell (Case No. 11-CP-06-456). Defendants’ Motion
to Proceed in forma pauperis [Dkt. No. 5] is DENIED AS MOOT without prejudice to
Defendants raising the issue in state court. Defendants’ Motion for Discovery [Dkt. No. 10] is
DENIED AS MOOT without prejudice to Defendants raising the issue in state court. Plaintiff’s
Motion to Remand [Dkt. No. 21] is GRANTED. This case is closed.
IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
May 21, 2013

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