Moore v. Draughn et al
ORDER AND OPINION denying 10 Motion to Remand; granting 10 Motion to Dismiss as to SCDOT; denying 11 Motion to Remand to State Court. granting 13 Motion to Dismiss as to SCDOT; denying 13 Motion to Remand. Signed by Honorable J Michelle Childs on 9/6/2017.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Darnell G. Moore,
David Tyre Draughn, Central States MFG., )
Inc., and South Carolina Department of
Civil Action No. 1:16-cv-03651-JMC
ORDER AND OPINION
This matter is before the court pursuant to Defendant South Carolina Department of
Transportation’s (“SCDOT”) Motion to Dismiss and/or Remand to state court, (ECF No. 10),
SCDOT’s Supplemental Motion in Support thereof, (ECF No. 13), and Plaintiff Darnell G.
Moore’s Motion to Remand to state court, (ECF No. 11). For the following reasons, the court
GRANTS SCDOT’s Motion to Dismiss (ECF No. 10), thereby denying its Motion to Remand,
and DENIES Plaintiff’s Motion to Remand. (ECF No. 11.)
FACTUAL AND PROCEDURAL BACKGROUND
This action arises from a motor vehicle accident that occurred in Allendale County, South
Carolina, on May 7, 2014. (ECF No.1 at 1.) This case was originally commenced in the Court of
Common Pleas for the Fourteenth Judicial Circuit. See id. On November 16, 2016, Defendants
David Tyre Draughn and Central States MFG., Inc. (“Central States”), filed a notice of removal to
this court on the basis of diversity jurisdiction. See id. Though Plaintiff is a South Carolina
resident and SCDOT is a South Carolina state agency, thus defeating complete diversity, Draughn
and Central States seek this court’s dismissal of SCDOT from this action on the theory that Plaintiff
improperly and fraudulently joined SCDOT in order to defeat diversity jurisdiction. See id.
According to Draughn and Central States, Plaintiff has no valid claim against SCDOT and thus
SCDOT is not a valid party in this action, thereby making the parties completely diverse and
conferring subject matter jurisdiction on this court. Id.
On December 2, 2016, SCDOT filed a motion with this court seeking either its dismissal
pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6), or a remand of any claim
against SCDOT to state court. (ECF No. 10 at 1.)
Plaintiff then filed a motion to remand to state court on December 8, 2016, asserting that
this court has no jurisdiction over SCDOT, SCDOT has not consented to removal to federal court,
and this court lacks subject matter jurisdiction. (ECF No. 11 at 1.) SCDOT then filed a
supplemental motion on December 12, 2016, which essentially supplemented its original motion
to dismiss and/or remand with certain jurisdictional arguments made by Plaintiff in his motion to
remand. 1 (ECF No. 13 at 1.) Defendants Draughn and Central States have responded to each
motion, asserting that, under the “fraudulent joinder doctrine,” federal courts may dismiss a nondiverse party against which a plaintiff has no valid claim and thus retain complete diversity among
the parties. (ECF Nos. 16, 17, & 18.)
A party seeking to remove a civil lawsuit from state to federal court pursuant to 28 U.S.C.
§ 1446 may do so when there is diversity of citizenship between the parties. Diversity of
citizenship exists “where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between citizens of different states . . . .” 28 U.S.C. § 1332(a).
Moreover, “diversity jurisdiction does not exist unless each defendant is a citizen of a different
By this Order, the court GRANTS SCDOT’s Supplemental Motion to Dismiss, thereby
denying its Supplemental Motion to Remand.
State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 427 U.S. 365, 373 (1978)
(emphasis in the original); see also Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999) (“[T]he
‘complete diversity’ rule clarifies that the statute authorizing diversity jurisdiction over civil
actions between a citizen of a state where the suit is brought and a citizen of another state permits
jurisdiction only when no party shares common citizenship with any party on the other side.”).
Thus, absent rare circumstances involving patents, federal courts will have no jurisdiction to hear
cases where there is no federal question presented nor complete diversity between the parties, and
the court must either dismiss the action or remand it to state court.
However, a party may not add a nondiverse opposing party for the sole purpose of
protecting itself against removal to federal court, when the adding party has no valid claim against
it. In order to protect against such procedural chess moves, the judiciary has created what is known
as the “fraudulent joinder” doctrine. “This doctrine effectively permits a district court to disregard,
for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction
over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.” Mayes, 198 F.3d
at 461. A party seeking to remove under the fraudulent joinder doctrine bears the heavy burden of
“demonstrate[ing] either outright fraud in the plaintiff’s pleading of jurisdictional facts or that
there is no possibility the plaintiff would be able to establish a cause of action against the in-state
defendant in state court.” Hartley v. CSX Transp., 187 F.3d 422, 424 (4th Cir. 1999). A court
may only find that there is no possibility of recovery “after resolving all issues of law and fact in
the plaintiff’s favor.” Id.
“In order to determine whether an attempted joinder is fraudulent, the court is not bound
by the allegations of the pleadings, but may instead consider the entire record, and determine the
basis of joinder by any means available.” AIDS Counseling & Testing Ctrs. v. Grp. W Television,
Inc., 903 F.2d 1000, 1004 (4th Cir. 1990).
Both Plaintiff and SCDOT have moved to remand this case to state court. Both parties
have argued that there is incomplete diversity among the parties. There is no federal question at
issue, and there is a South Carolina party on each side. Thus, the only method for this court to
hear the case is under the fraudulent joinder doctrine.
Central States and Draughn allege that “both fraudulent joinder tests have been met” – that
there is “no possibility the plaintiff would be able to establish a cause of action against the in-state
defendant in state court,” and that there is “outright fraud in the plaintiff’s pleading of jurisdictional
facts.” (ECF No. 15 at 2.) Thus, they argue that SCDOT has been fraudulently joined and that
this court has jurisdiction to decide the claims. The non-moving defendants argue that Plaintiff
could not establish a cause of action in state court against SCDOT because the statute of limitations
has expired on any claim against it. Id.
Plaintiff’s claims against SCDOT are governed by The South Carolina Tort Claims Act
(“Act”), which “is the exclusive and sole remedy for any tort committed by an employee of a
governmental entity while acting within the scope of the employee’s official duty.” S.C. Code
Ann. § 15-78-200 (Supp. 1999). The Act contains a two-year statute of limitations. Section 1578-110 declares:
Except as provided for in Section 15-3-40, any action brought pursuant to this
chapter is forever barred unless an action is commenced within two years after the
date the loss was or should have been discovered. S.C. Code Ann. § 15-78-110
Provisions of the Act establishing limitations upon, and exemptions from, liability of a
governmental entity must be liberally construed in favor of limiting the liability of the state.
Steinke v. South Carolina Dept. of Labor, and Regulation, 336 S.C. 373, 393 (S.C. Ct. App. 1999).
The court is not convinced that there is outright fraud in Plaintiff’s pleading of
jurisdictional facts. However, the court is convinced that Plaintiff would not be able to establish
a cause of action against SCDOT in state court because the two-year statute of limitations has
expired. Plaintiff asserts that the statute of limitations should be tolled due to the latent discovery
of a claim against SCDOT, which he allegedly learned in a mediation on June 23, 2016. Plaintiff
contends that the question of when a party discovers a cause of action against a party is one for the
jury. (ECF No. 11 at 8.) However, a fact-finder is not able to ascertain what information Plaintiff
discovered in mediation since Plaintiff is contractually and judicially estopped from discussing
anything that she learned at the mediation. See FRE 408, 501; see also ECF No. 1 at 11, which
contractually prohibits Plaintiff from using any information in mediation in any later court
proceeding. Thus, Plaintiff is estopped from asserting that she learned any information at the
mediation, which may have tolled the statute of limitations. See In re Anonymous, 283 F.3d 627,
636 (4th Cir. 2002) (“The assurance of confidentiality is essential to the integrity and success of
the Court’s mediation program, in that confidentiality encourages candor between the parties and
on the part of the mediator, and confidentiality serves to protect the mediation program from being
used as a discovery tool for creative attorneys.”).
Furthermore, the court is not persuaded that Plaintiff could not have discovered this
information before the statute of limitations had expired. In motor vehicle accident cases, such as
this, South Carolina courts, and District of South Carolina courts interpreting South Carolina law,
have consistently held that the statute of limitations runs from the date of the car accident, as that
is the date a plaintiff reasonably should have been aware of her injuries and that a claim exists
against any alleged tortfeasors. Tollison v. B&J Mach. Co., Inc., 812 F. Supp. 618, 620 (D.S.C.
1993) (stating the focus is upon the date of discovery of the injury, not the date of discovery of the
In Tanyel v. Osborne, 312 S.C. 473, 474 (S.C. Ct. App. 1994), Plaintiff Tanyel was
involved in an accident with a state employee school bus driver and died from her injuries. Her
spouse, who was not involved in the accident, waited more than two years after the date of the
accident to sue the bus driver. See id. When the bus driver asserted the two year statute of
limitations from the Act, Tanyle’s spouse claimed not to have discovered evidence of the bus
driver’s negligence until after the date of the accident. See id. The South Carolina Court of
Appeals ruled that it made no difference when the spouse determined there was evidence the bus
driver was negligent. See id. at 475. The statute of limitations in a car accident case runs from the
date of the accident, since, as a matter of law, the date of the accident was the event which should
have placed Tanyel on notice of a claim against the bus driver, and not some later event. See id.
“More importantly, Tanyel witnessed the physical involvement of the bus in the accident. See id.
at 476. This fact, standing alone, gave him notice that he might have a potential claim against the
bus driver.” See id.
Additionally, in Bayle v. South Carolina Dept. of Transp., 344 S.C. 115, 118 (S.C. Ct. App.
2001), Plaintiff died when her car struck water on the roadway. Bayles’ widowed husband filed a
claim against SCDOT more than two years after the date of the accident. See id. Bayle’s spouse
claimed that, because he did not witness the accident, it was reasonable that the statute should run
from the date he discovered a cause of action against SCDOT. See id. The Bayles court ruled that,
even where the plaintiff did not actually witness the accident, the statute of limitations still runs
from the date of the accident. See id. at 126. In response to Bayles’ argument that he did not
discover the defect until after the date of the accident, the Bayles court further reasoned that the
statute of limitations had still run since the alleged defects were observable conditions, which
existed at the time of the accident. See id. at 127.
Moreover, South Carolina law is clear that the allegedly injured plaintiff must exercise
“reasonable diligence” in the pursuit of any personal injury action. Straws v. Crawford, No. 4:0632230-HFF-TER, 2007 WL 1302685, at *3, (D.S.C. May 2, 2007). According to the South
Carolina Supreme Court,
“[t]he exercise of reasonable diligence means simply that an injured party must act
with some promptness where the facts and circumstances of an injury would put a
person of common knowledge and experience on notice that some right of his has
been invaded or that some claim against another party might exist. The statute of
limitations begins to run from this point and not when advice of counsel is sought
or a full-blown theory of recovery developed.”
Snell v. Columbia Gun Exch., Inc., 276 S.C. 301, 303 (1981) (emphasis added). The question of
whether the plaintiff has exercised this “reasonable diligence” is “an objective determination,”
Wilson v. Shannon, 299 S.C. 512, 513 (S.C. Ct. App. 1989), and “the fact that the injured party
may not comprehend the full extent of the damage is immaterial.” Dean v. Ruscon Corp., 321 S.C.
360, 362 (1996) (property damage case) (citations omitted).
Applying Tanyel and Bayle to the case at bar, even if Plaintiff discovered facts during the
mediation leading her to believe that she might have a cause of action against SCDOT, such
discovery does not toll the statute of limitations. Plaintiff was involved in the accident and knew
she suffered an injury on the date of the accident. Thus, under Straws and Snell, it was Plaintiff’s
responsibility to identify potential causes of action and defendants in a timely manner. Plaintiff
has not set forth any facts by which the court can conclude that she exercised reasonable diligence
in pursuing a claim against SCDOT.
Therefore, the court concludes that SCDOT is improperly joined in this action, and the
naming of this defendant should not defeat this court’s diversity jurisdiction.
Based on the foregoing, SCDOT’s Motion to Dismiss (ECF No. 10) is GRANTED,
thereby denying its Motion to Remand, and Plaintiff’s Motion to Remand (ECF No. 11) is
IT IS SO ORDERED.
United States District Judge
September 6, 2017
Columbia, South Carolina
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