Morris v. Richland County et al
ORDER adopting the 16 Report and Recommendation, denying Plaintiff's 7 Motion to Remand. This matter remains with the magistrate judge for preliminary matters. Signed by Honorable Sherri A. Lydon on 11/13/2023. (lbak)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Kevin Morris, individually, and as the parent
and natural guardian of E.M., a minor, and as
the Personal Representative of the Estate of
Katherine Marie Tompeck,
Richland County, Sheriff Leon Lott, Kyle
Oliver, Michael Caughman, Gary Atkinson,
John Doe Deputies,
Plaintiff Kevin Morris and Katherine Tompeck originally filed this action in the Richland
County Court of Common Pleas, alleging causes of action for violations of their Fourth
Amendment rights under 42 U.S.C. § 1983 as well as various state law claims. The action was
removed to this court on February 24, 2023. [ECF No. 1.] On March 29, 2023, Plaintiff filed a
motion to remand, arguing the notice of removal was not timely filed. [ECF No. 7.] This matter
is before the court on the Report and Recommendation (“Report”) issued by United States
Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02(B)(2) (D.S.C.), recommending denial of the motion to remand. [ECF No. 16.] Plaintiff
filed objections to the Report, ECF No. 17, and Defendants replied, ECF No. 20. This matter is
ripe for the court’s review.
BACKGROUND AND PROCEDURAL HISTORY
This case arises out of an incident on September 1, 2018, where deputies from the Richland
County Sheriff’s Office entered Plaintiff and Tompeck’s home and arrested Tompeck for the crime
of reckless driving. See ECF No. 1-1 at 30–37. Plaintiff and Tompeck filed the original complaint
on August 14, 2020, against Richland County, Richland County Sheriff’s Office, Kyle Oliver,
Michael Caughmas, and “John Doe Deputies.” [ECF No. 1-1 at 3–24.] Following discovery, Gary
Atkinson was identified as one of the “John Doe Deputies” referenced and pictured in the
complaint. On September 28, 2022, Plaintiff filed an amended complaint naming Atkinson as a
defendant.1 [ECF No. 1-1 at 27–49.]
Atttorney Robert D. Garfield accepted service on Atkinson’s behalf on February 1, 2023.
[ECF No. 1-2 at 1.] On February 24, 2023, Atkinson filed a notice of removal, which was joined
by Defendants Richland County, Sheriff Lott, Oliver, and Caughman, all of whom are represented
by Garfield. [ECF No. 1 at 1–3.]
On March 29, 2023, Plaintiff moved to remand this case to state court. [ECF No. 7.]
Defendants oppose the motion. [ECF No. 14.]
On May 30, 2023, the magistrate judge issued her Report recommending that the motion
to remand be denied. [ECF No. 16.] Based on Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999), the magistrate judge reasons that “Atkinson’s time to remove the action was
triggered when he was served notice of the action . . . on February 1, 2023, when Garfield entered
an appearance with his permission and on his behalf.” [ECF No. 16 at 11–12.] Thus, the removal
less than 30 days later, on February 24, 2023, was timely. Id. at 12.
Plaintiff objects to the recommendation. [ECF No. 17.]
STANDARD OF REVIEW
The magistrate judge makes only a recommendation to this court. The recommendation
Tompeck passed away after the original complaint was filed, so Plaintiff as the parent and natural
guardian of E.M. and as the personal representative of Tompeck’s estate filed the amended
has no presumptive weight, and the responsibility to make a final determination remains with the
court. See Matthews v. Weber, 423 U.S. 261 (1976). A district court is charged with making a de
novo determination of those portions of the Report to which specific objections are made, and the
court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate
judge, or recommit the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1).
A district court, however, need only conduct a de novo review of the specific portions of the
magistrate judge’s Report to which an objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P.
72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). Without
specific objections to portions of the Report, this court need not provide an explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
“An objection is specific if it ‘enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.’” Dunlap v. TM Trucking of the
Carolinas, LLC, 288 F. Supp. 3d 654, 662 n.6 (D.S.C. 2017) (citing One Parcel of Real Prop.
Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). “Generally stated, nonspecific
objections have the same effect as would a failure to object.” Staley v. Norton, No. 9:07-0288,
2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing Howard v. Sec’y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The court reviews portions “not objected to—including
those portions to which only ‘general and conclusory’ objections have been made—for clear
error.” Dunlap, 288 F. Supp. 3d 654, 662 (D.S.C. 2017) (citing Diamond v. Colonial Life &
Accident Ins. Col, 416 F.3d 310, 315 (4th Cir. 2005); Camby, 718 F.2d at 200; Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982)).
Having reviewed the Report, the objections, and record in this case, the court agrees that
the notice of removal was timely filed. Section 1441 of Title 28 states that “any civil action
brought in a State court of which the district courts of the United States have original jurisdiction
[ ] may be removed by the defendant or the defendants[.]” 28 U.S.C. § 1441(a). However, to be
timely “[t]he notice of removal . . . shall be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon
which such action or proceeding is based[.]” Id. at § 1446(b). In Murphy Bros., the Supreme
Court held “a named defendant’s time to remove is triggered by simultaneous service of the
summons and complaint, or receipt of the complaint, ‘though service or otherwise,’ after and apart
from service of the summons, but not by mere receipt of the complaint unattended by any formal
service.” 526 U.S. at 347–48 (emphasis added).
Plaintiff does not dispute Atkinson filed a notice of removal within 30 days of the date
counsel was served on his behalf. See ECF No. 7-1 at 4. But Plaintiff argues removal was not
timely because Atkinson should have been on notice that he was a defendant in this action based
on the numerous references to him in the complaint, which had been served on Atkinson’s
employer, and media attention about this case. See ECF No. 17 at 4–6. Plaintiff offers two
objections to the magistrate judge’s recommendation—one based on the facts and one based on
the law. These objections are addressed in turn below.
First, Plaintiff objects to the magistrate judge’s reliance on an affidavit by Atkinson in
which Atkinson averred he had no notice of this suit until January 31, 2023. See ECF No. 14-1 at
According to Plaintiff, Atkinson’s claims are “at best willfully ignorant and at worst
disingenuous.” Id. at 6. But, as Defendants point out in their response to Plaintiff’s objections,
Plaintiff has offered no evidence to counter Atkinson’s affidavit. [ECF No. 20 at 2.] Nor has
Plaintiff offered any other basis on which the court should reject the affidavit. The court thus
overrules Plaintiff’s objection.
In his second objection, Plaintiff argues the facts of Murphy Bros., which the magistrate
judge relied on, “greatly differ from the present matter.” [ECF No 17 at 7.] In particular, he notes
that Murphy Bros. “did not contemplate the timeliness of removal in a case involving multiple
defendants, including John Doe defendants identified by explicit descriptions and photographs in
an initial complaint.” Id. He further argues this case is distinguishable because “it involves the
employer of the now removing defendant being formally served with process over two (2) years
before the attempted removal” and “the employer defendant having the same counsel as the now
removing defendant.” Id. Certainly, the aspects of this case that Plaintiff highlights are unique
and differentiate it from the facts of Murphy Bros. But based on the court’s review of the law,
these distinctions make no difference to the ultimate disposition. That is, the Supreme Court made
clear in Murphy Bros. that formal service was required to trigger a defendant’s time for removal.
In that opinion, the Court also rejected a “so-called ‘receipt rule’” that would “set removal apart
from all other responsive acts, to render removal the sole instance in which one’s procedural rights
slip away before service of the summons, i.e., before one is subject to any court’s authority.”
Murphy Bros., 526 U.S. at 356. Murphy Bros. is both controlling and applicable here. Atkinson’s
ability and obligation to remove this action was not triggered until formal service.2 So, we overrule
Plaintiff urges the court that under S.C. R. Civ. P. 15(c) and Fed. R. Civ. P. 15, “[i]f the original
complaint alleges a sufficient basis to infer that a defendant ‘knew or should have known that, but
for a mistake concerning the identity of the proper party, the action would have been brought
against him[,]’ then the amended pleading relates back to the original for removal purposes.” [ECF
No. 17 at 5.] The court must disagree with this interpretation. As explained in the Report, while
After reviewing the Report, the applicable law, and the record of this case in accordance
with the above standard, the court adopts the Report, ECF No. 16, and incorporates it by reference
here. The court DENIES Plaintiff’s motion to remand. [ECF No. 7.] This matter remains with
the magistrate judge for preliminary matters.
IT IS SO ORDERED.
November 13, 2023
Columbia, South Carolina
Sherri A. Lydon
United States District Judge
S.C. R. Civ. P. 15(c) could be relevant to the issue of timely removal if removal was based on
diversity of citizenship, that is not the case here. See ECF No. 16 at 8–9. Rule 15 has no bearing
on the court’s analysis.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?