Campbell v. Dog House Holdings LLC et al

Filing 22

ORDER granting 12 Motion to Remand to State Court. Clerk's Notice: Attorneys are responsible for supplementing the State Record with all documents filed in Federal Court. Signed by the Honorable R. Bryan Harwell on 8/18/2015. (hcic, )

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

)
)
Plaintiff,
)
)
v.
)
)
Dog House Holdings, LLC, d/b/a The Dog
)
House Bar & Grill Inc.; Myrtle Beach
)
Holdings, LLC, d/b/a/ Secrets Cabaret;
)
David G. Marshlack; Charles B. Hammil;
)
Scottsdale Insurance Company; and Gary C. )
Dolan, as Personal Representative of the
)
Estate of Mark R. Dolan;
)
)
Defendant.
)
_______________________________________)

Civil Action No.: 4:15-cv-02656-RBH

ORDER OF REMAND

This matter is before the Court on Defendant Charles B. Hammil’s [ECF #12] motion to remand.
This case was removed to this Court from the Horry County Court of Common Pleas on July 2, 2015,
by Defendant Scottsdale Insurance Company. Defendant Scottsdale Insurance Company failed to obtain
the consent of Defendant Charles B. Hammil prior to filing the removal. On July 28 and 30, 2015,
respectively, Defendant Hammil filed an objection to removal [ECF #11] and a motion to remand [ECF
#12]. Defendant Scottsdale Insurance Company responded arguing that, despite the defect in the removal
procedure, Plaintiff had adopted the federal forum as the appropriate forum to proceed with this litigation
by filing an amended complaint, which alleged that jurisdiction was proper in this court.
Under 28 U.S.C. § 1441(a), a defendant is permitted to remove a case to federal court if the
court would have had original jurisdiction over the matter. District courts have original jurisdiction
“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)(1). Removal statutes are strictly
construed against removal, and any doubts concerning the propriety of removal must be resolved in favor
of retained state court jurisdiction. Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993).
In addition, “[t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is

proper.” In Re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006) (citation
omitted). This includes establishing compliance with the removal statute requirements. See Marler v.
Amoco Oil Co., 793 F. Supp. 656, 658-59 (E.D.N.C. 1992).
The Supreme Court has construed these statutes to require all defendants in a case to join in or
consent to removal, creating the so-called “rule of unanimity.” See Mayo v. Bd. of Educ. of Prince
George's Cnty., 713 F.3d 735, 741 (4th Cir. 2013) (citing Lapides v. Bd. of Regents of Univ. Sys. of Ga.,
535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)). The rule of unanimity, codified at 28
U.S.C. § 1446(b)(2)(A), provides that “[w]hen a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the removal of the
action.” This requirement is not jurisdictional, however, unanimous consent by all defendants within the
proper time is mandatory and failure to comply constitutes adequate grounds for a court to remand the
action to state court. Mason v. International Business Machines, Inc., 543 F.Supp. 444 (M.D.N.C. 1982).
In addition, each defendants’ consent must be unambiguous. Id. This rule is consistent with the Court’s
obligation “to construe removal jurisdiction strictly because of the significant federalism concerns
implicated.” Maryland Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005) (internal
quotation marks omitted); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct.
868, 85 L.Ed. 1214 (1941). The rule of unanimity helps to effectuate Congress’s intent in limiting
removal to prevent it from being used too broadly or casually. Courts must narrowly interpret removal
jurisdiction because of the significant federalism concerns that are raised by removing proceedings from
state court. Marler, 793 F. Supp. at 658-59. Thus, all doubts are resolved in favor of remand. See
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Mulcahey v. Columbia
Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
In the instant matter, Defendant Charles Hammil did not consent to the removal and filed a
motion to remand raising the defect in the removal process within thirty days of removal as required
under 28 U.S.C. § 1447(c). Based on the removing party’s (Defendant Scottsdale Insurance Company)

2

failure to obtain consent from all defendants as required by 28 U.S.C. § 1446(b)(2)(A), Defendant
Charles B. Hammil’s motion to remand [ECF #12] is GRANTED. This case is hereby REMANDED to
the South Carolina Court of Common Pleas for Horry County, South Carolina. A certified copy of this
Order of Remand shall be mailed by the Clerk of this Court to the Clerk of the Court of Common Pleas,
Horry County, South Carolina
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
August 18, 2015

3