Wilson v. B&B Properties

Filing 20

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 7 Report and Recommendation, denying as moot 13 Motion for TRO, Motion for Preliminary Injunction filed by Beverley D. Wilson, denying as moot 10 Motion for TRO, Motion for Preliminary Injunction filed by Beverley D. Wilson, denying as moot 3 Motion for TRO, Motion for Preliminary Injunction filed by Beverley D. Wilson, denying as moot 11 Motion for TRO, Motion for Preliminary Injunction file d by Beverley D. Wilson, denying as moot 12 Motion for TRO, Motion for Preliminary Injunction filed by Beverley D. Wilson, denying as moot 19 Motion for TRO, Motion for Preliminary Injunction filed by Beverley D. Wilson, denying as moot 18 Motion for TRO, Motion for Preliminary Injunction filed by Beverley D. Wilson. Signed by Honorable Margaret B Seymour on 8/23/2017. (mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Beverley D. Wilson, doing business as
Wilson Pediatrics, Inc.,

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Plaintiff,
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vs.
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B&B Properties,
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Defendant.
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____________________________________)

C/A No. 3:17-1807-MBS

ORDER AND OPINION

Plaintiff Beverley D. Wilson, doing business as Wilson Pediatrics, Inc., filed a complaint and
motion for temporary restraining order against Defendant B&B Properties on July 10, 2017.
Plaintiff, proceeding pro se and in forma pauperis, alleges she entered into a ten-year lease agreement
with Defendant for a medical suite. Plaintiff states she is in arrears on her lease payments in excess
of $22,000.00. Plaintiff alleges she was forcibly evicted on June 30, 2017, and was unable to take
all her possessions with her. She seeks to enjoin Defendant from finalizing the eviction and moves
the court to allow her to resume occupancy under the parties’ lease agreement. In accordance with
28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States
Magistrate Judge Shiva V. Hodges for pretrial handling.
The Magistrate Judge reviewed the complaint pursuant to the provisions of 28 U.S.C. § 1915.
The Magistrate Judge determined the court lacks subject matter jurisdiction over Plaintiff’s
complaint because Plaintiff failed to allege an amount in controversy in excess of $75,000.00. See
28 U.S.C. § 1332(a). Accordingly, the Magistrate Judge issued a Report and Recommendation
wherein she recommended that Plaintiff’s complaint be dismissed without prejudice and without

issuance and service of process.
On August 4, 2017, Plaintiff filed an amended complaint, presumably to cure the Magistrate
Judge’s determination that the court lacks subject matter jurisdiction. Plaintiff asserts causes of
action for negligence and intentional infliction of emotional distress. Plaintiff contends that
Defendant’s negligence in maintaining the premises required her to expend $120,000 to replace her
computer system, and her eviction has resulted in $1,222,500 in future lost income. Plaintiff further
alleges that Defendant violated her due process rights.
DISCUSSION
“‘Federal courts are not courts of general jurisdiction; they have only the power that is
authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.’”
Brickwood Contractors., Inc. v. Datanet Eng’g, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (quoting
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Under the “well-pleaded
complaint” rule, the facts showing the existence of subject matter jurisdiction “must be affirmatively
alleged in the complaint.” Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999)
(citing McNutt v. Gen’l Motors Acceptance Corp., 298 U.S. 178 (1936)).
A.

Diversity Jurisdiction
Subject matter jurisdiction based on diversity of citizenship is satisfied if the litigation is

between “citizens of different States” and “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)(1). Plaintiff alleges that she is a
resident of South Carolina and that Defendant is a resident of Tennessee. The question becomes,
then, whether Plaintiff has demonstrated the amount in controversy exceeds $75,000. If the plaintiff
claims a sum sufficient to satisfy the statutory requirement, a federal court may dismiss only if it is
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apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed. Momin v.
Maggiemoo’s Int’l, L.L.C., 205 F. Supp. 2d 506, 509 (D. Md. 2002) (citing cases).
Plaintiff claims economic losses as the result of Defendant’s negligence. In South Carolina,
the question of whether the plaintiff may maintain an action in tort for purely economic loss turns
on the determination of the source of the duty plaintiff claims the defendant owed. A breach of a
duty which arises under the provisions of a contract between the parties must be redressed under
contract, and a tort action will not lie. Tommy L. Griffin Plumbing & Heating Co. v. Jordon, Jones
& Goulding, Inc., 463 S.E.2d 85, 88 (S.C. 1995). A breach of a duty arising independently of any
contract duties between the parties, however, may support a tort action. Id. (citing State Ports Auth.
v. Booz–Allen & Hamilton, Inc., 346 S.E.2d 324 (S.C. 1986). In most instances, a negligence action
will not lie when the parties are in privity of contract. When, however, there is a special relationship
between the alleged tortfeasor and the injured party not arising in contract, the breach of that duty
of care will support a tort action. Id. (citing Booz–Allen, 346 S.E.2d at 376-77).
Plaintiff has failed to allege any special relationship between her and Defendant. The only
duty apparent from the face of the complaint arises from the commercial lease agreement regarding
Plaintiff’s medical suite. As such, Plaintiff is limited to her contract remedies, if any. The court
concludes that, to a legal certainty, Plaintiff cannot establish sufficient damages under her cause of
action for negligence to meet the amount in controversy.
As to Plaintiff’s allegation of intentional infliction of emotional distress, Plaintiff must show
that Defendant’s conduct was so extreme and outrageous that it exceeded all possible bounds of
decency and was furthermore atrocious, and utterly intolerable in a civilized community. Hansson
v. Scalise Builders of South Carolina, 650 S.E.2d 68, 72 (S.C. 2007). “In order to prevent claims
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for intentional infliction of emotional distress from becoming ‘a panacea for wounded feelings rather
than reprehensible conduct,’ the court plays a significant gatekeeping role in analyzing a defendant's
motion for summary judgment.” Id. at 71 (quoting Todd v. S.C. Farm Bur. Mut. Ins. Co., 321 S.E.2d
602, 611 (S.C. Ct. App. 1984), rev’d on other grounds, 336 S.E.2d 472 (1985)). It is for the court’s
determination whether the defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery, and only where reasonable persons might differ is the question one
for the jury. Id. (citing Holtzscheiter v. Thomson Newspapers, 411 S.E.2d 664, 666 (1991)).
The court finds that Defendant’s actions in requiring Plaintiff to vacate the premises upon
her failure to timely make rental payments were not so “ extreme and outrageous that [they]
exceeded all possible bounds of decency and [were] furthermore atrocious, and utterly intolerable
in a civilized community.” The court concludes that, to a legal certainty, Plaintiff cannot establish
sufficient damages under her cause of action for intentional infliction of emotional distress to
establish the requisite amount in controversy.
B.

Federal Question Jurisdiction
In order to establish federal question jurisdiction under 28 U.S.C. § 1331, the civil case must

“aris[e] under the Constitution, laws, or treaties of the United States.” The well-pleaded complaint
rule requires that the federal question appear on the face of a properly pleaded complaint; otherwise,
the court lacks federal question jurisdiction. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804,
808 (1986).
Plaintiff contends that Defendant’s actions deprived her of her right to due process. The
Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and
which guarantees due process, applies to acts of the states, not to acts of private persons or entities.
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Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982) (citing cases). Plaintiff cannot establish a federal
question unless it can be shown Defendant’s actions are “fairly attributable to the State.” Id. at 839
(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). A state can be held responsible for
a private decision when it has exercised coercive power or has provided significant encouragement
to the defendant; when it has extensively regulated the defendant; when the defendant performs a
public function; or when the defendant and the state engage in a symbiotic relationship. Id. at 84142 (citing Blume v. Yaretsky, 457 U.S. 991, 1004 (1982)).
In this case, the only allegations in the complaint demonstrate that Defendant acted as a
private entity acting under the parties’ commercial lease agreement. Plaintiff has failed to establish
federal question jurisdiction.
CONCLUSION
For the reasons stated, the court adopts the conclusion of the Magistrate Judge that Plaintiff’s
complaint, as amended, should be dismissed for lack of subject matter jurisdiction. Accordingly,
the within complaint, as amended is dismissed, without prejudice and without issuance and
service of process. Plaintiff’s motions for a temporary restraining order and preliminary injunction
(ECF Nos. 3, 10, 11, 12, 13, 17, 18, 19) are denied as moot.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
August 23, 2017

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