Burgess v. JHOC Premier Transportation Inc et al

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION: The Court accepts the 37 Report and Recommendation in substantial part. The 10 Plaintiff's Motion to Remand is GRANTED. All other pending motions in this case, 28 and [29 ] Motions to Compel, 30 Motion to Strike the Answer of Third-Party Defendant Robert Myers, and 36 Motion to Amend Answer of Third-Party Defendant Robert Myers are terminated as MOOT, as they are not proper for consideration by this Court. The Court chooses not to accept the portion of the Report that recommends that Defendants be liable for the costs and attorneys' fees resulting from the removal to federal court. Signed by Honorable Terry L Wooten on 10/05/2012. (sste )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Dorothy Burgess, as the Personal
Representative of the Estate of Elizabeth
Price Dunn,

)
)
)
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Plaintiff,
)
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vs.
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J.H.O.C. Premier Transportation, Inc. and )
Moses Wilson,
)
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Defendants/Third-Party
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Plaintiffs,
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vs.
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John Price, Jr. and Robert Myers,
)
)
Third-Party Defendants.
)
___________________________________ )

Civil Action No. 4:12-657-TLW-KDW

ORDER

Plaintiff filed a negligence action involving a tractor-trailer / vehicle accident in the Court
of Common Pleas of Chesterfield County, South Carolina, on January 27, 2012. (Doc. # 1-1).
On March 6, 2012, Defendants removed the action to this Court on the asserted basis of federal
question jurisdiction. (Doc. # 1).
The matter now comes before this Court for review of the Report and Recommendation
(Athe Report@) filed by United States Magistrate Judge Kaymani D. West, to whom this case had
previously been assigned. In the Report, the Magistrate Judge recommends that Plaintiff’s
Motion to Remand be granted and that Defendants be liable to Plaintiff for costs and attorneys’
fees resulting from the removal of this case to federal court. (Doc. # 37). Defendants filed a

timely Objection to the Report. (Doc. # 40). In conducting its review, the Court therefore
applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections...The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the Report and Recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the
Report thus depends on whether or not objections have been filed, in either case,
the Court is free, after review, to accept, reject, or modify any of the magistrate
judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the Defendants’ Objection. Having reviewed the Report as well as the Objection thereto, the
Court hereby accepts the Report in substantial part. (Doc. # 37). As recommended by the
Magistrate Judge, Plaintiff’s Motion to Remand is GRANTED. (Doc. # 10). This matter is
remanded to the Court of Common Pleas, Chesterfield County, South Carolina, and the Clerk of
this Court is directed to mail a certified copy of the Order of Remand to the Clerk of the Court of
Common Pleas for Chesterfield County. In addition, all other pending motions in this case,
(Docs. # 28, # 29, # 30, and # 36), are terminated as MOOT, as they are not proper for
consideration by this Court. The Court chooses not to accept that portion of the Report that
recommends that Defendants be liable for the costs and attorneys’ fees resulting from the
removal to federal court. This Court notes that, according to the Report, the “Defendants [did]
not address Plaintiff’s request for attorneys’ fees.” (Doc. # 37 at p. 12). However, after issuance
of the Report, the Defendants did file an Objection to the recommendation that they pay costs

and fees. (Doc. # 40). This is a very close question. It was not inappropriate for the Magistrate
Judge to recommend that Defendants pay costs and fees. However, after careful consideration,
realizing that this is a close question, the Court will not require that costs and fees be paid by the
Defendants. Considering the position of the Defendants and their materials filed after the Report
was issued, this Court is just sufficiently persuaded, based upon the entire record before it, that
Defendants acted with an objective reasonable basis in seeking removal.
IT IS SO ORDERED.

s/Terry L. Wooten____
United States District Judge
October 5, 2012
Florence, South Carolina