Wells Fargo Bank, NA et al v. Beck et al
ORDER AND OPINION ruling on 14 Report and Recommendation of Magistrate Judge Bristow Marchant to remand this matter sua sponte for lack of jurisdiction. This action is remanded to state court for further proceedings. Plaintiffs' motion to remand (Dkt. No. 4 ) is denied as moot. Defendant Beck's motions to strike (Dkt. No. 6 , 10 , and 11 ) are denied. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 10/10/2017. (sshe, )
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Wells Fargo Bank, N.A.; Wells Fargo
Equipment Finance, Inc.
C.J.B. Holding & Trust Company, LLC;
Cornelius J. Beck, Jr.; Inlet Dental Center,
Inc., now known as Cameron Banks, LLC;
Seaside Surgical, Inc.; Andrews Dental
Center, Inc.; Georgetown Dental Center of
South Carolina, Inc.; South Beach Dental
Center, Inc.; Southpark Centre Property
Owners Association, Inc.; Myrtle Beach
Farms Company, Inc.; Wachesaw
Warehouses Property Owners Association,
Inc. ; Patterson Dental Supply, Inc.,
Case No.: 2: 17-cv-1446
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No. 14) recommending that this Court grant Plaintiffs' motion to remand
(Dkt. No. 4), or, in the alternative, remand this case to state court sua sponte for lack of subject
matter jurisdiction. The Magistrate Judge has also recommended that Defendant Beck's motions
to strike (Dkt. Nos. 6, 10, and 11) be denied. For the reasons set forth below, this Court adopts
the R. & R. as the order of the Court. This action is remanded to state court for further
Background and Relevant Facts
The pro se Defendant, Cornelius J. Beck, Jr. (hereinafter Defendant), filed a notice of
removal on June 2, 2017, which purports to remove Civil Action No. 2014-CP-22-1109 (a state
court mortgage foreclosure and replevin action) from the Court of Common Pleas of Georgetown
County, South Carolina. Plaintiffs have filed a motion to remand the case to state court (Dkt. No.
4), arguing that this action is not removable because Defendant's removal is untimely, Defendant
failed to secure the consent of all defendants to the state action, removal pursuant to § 1441 is
improper because there is no federal issue jurisdiction (28 U .S.C. § 1331) and this action cannot
be removed based on diversity jurisdiction (28 U.S.C. § 1332) because a number of the
Defendants (including Defendant Beck) are citizens of South Carolina, and because removal is
not proper pursuant to 5 U.S.C. § 702. The Magistrate Judge has thoroughly summarized the
procedural history of this case, so the Court need not do so again here. (Dkt. No. 14 at 1-3.)
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto , 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't of Social Services, 901 F.2d 3 87 (4th Cir. 1990).
b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made . Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U. S.C. § 636(b)(l).
The Magistrate Judge has explained in the R. & R. that this Court does not have federal
question over the causes of action in Plaintiffs' complaint, which asserts state law claims for the
foreclosure of mortgages, guarantees, and replevin. (Dkt. No. 14 at 3-8.) The Magistrate Judge
also explained that Defendant Beck is precluded as a matter of law from removing this case on
the basis of diversity of citizenship because he is a citizen of South Carolina, the state in which
this action was brought. See 28 U.S.C . § 1441(b)(2).
No party has filed objections to the R. & R. In the absence of any specific objections, "a
district court need not conduct a de nova 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." See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation
omitted). This Court finds that the Magistrate Judge has correctly applied the controlling law to
the facts of this case.
For the reasons set forth above, this Court adopts the Magistrate Judge ' s recommendation to
remand this matter sua sponte for lack of jurisdiction. Plaintiffs' motion to remand (Dkt. No. 4)
is therefore denied as moot. Defendant Beck's _
motions to strike (Dkt. Nos. 6, 10, and 11) are
AND IT IS SO ORDERED.
United States District Court Judge
October f ()
Charleston, South Carolina
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