Awkard v. Rammelsburg et al

Filing 185

ORDER RULING ON REPORT AND RECOMMENDATION: For the foregoing reasons, the Court OVERRULES the parties' objections and ADOPTS the Magistrate Judge's R & R [ECF No. 139 ]. Accordingly, the Court: (1) GRANTS the mo tion to dismiss [ECF No. 82 ] filed by Defendant Mary Stitcher; (2) GRANTS IN PART AND DENIES IN PART the motion to dismiss [ECF No. 77 ] filed by Defendants Sharon Rammelsberg, Sharri Una Rammelsberg, and Saundra LaVon Herrmann; and (3) GRANTS IN PART AND DENIES IN PART the motion to dismiss [ECF No. 86 ] filed by Defendant William Douglas Management, Inc. To clarify, Plaintiff's only remaining claims are: constructive eviction and negligent supervision against Defendan ts Sharon Rammelsberg, Sharri Una Rammelsberg, and Saundra LaVon Herrmann; negligent supervision and intentional interference with contractual relations against Defendant William Douglas Management, Inc.; and the pending federal and state claims against Defendant Myrtle Beach Resort Master Homeowners Association, Inc. (which has answered but not filed a motion to dismiss). IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 9/27/2018. (prou, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Veronica Awkard,

)
)
Plaintiff,
)
)
v.
)
)
Sharon Rammelsberg, Saundra LaVon
)
Herrmann, Mary Stitcher, Sharri Una
)
Rammelsberg, Myrtle Beach Resort
)
Master Homeowners Association, Inc.,
)
William Douglas Management, Inc., and
)
Other Unknown/Unnamed Individuals,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 4:17-cv-01542-RBH-KDW

ORDER

Veronica Awkard, an attorney proceeding pro se, filed this action against the above-captioned
Defendants, five of whom have filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The
matter is before the Court for consideration of the parties’ objections to the Report and
Recommendation (“R & R”) of United States Magistrate Judge Kaymani D. West, who recommends
granting one of the motions to dismiss, and granting in part and denying in part the other two motions.1
See ECF No. 139.
Standard of Review
I.

Review of the R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct a

1

The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(B)(2)(e) (D.S.C.).

de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
II.

Rule 12(b)(6)
“To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Elliott v. Am. States Ins. Co., 883
F.3d 384, 395 (4th Cir. 2018) (internal quotation marks omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A] plaintiff must provide
sufficient detail to show that he has a more-than-conceivable chance of success on the merits.” Upstate
Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th Cir. 2018) (alterations
omitted).
Discussion2

2

The R & R thoroughly describes the factual and procedural background of this case, as well as the applicable
legal standards.

2

This case involves a landlord-tenant dispute arising from Plaintiff’s rental of a condominium
unit at Renaissance Tower, a resort in Myrtle Beach, South Carolina, from November 2015 until June
2017. In her Amended Complaint, Plaintiff alleges, inter alia, that her landlords refused to adequately
repair her condo both before and after a hurricane, that repeated unlawful entries into her condo
occurred, and that she suffered racial discrimination while living at Renaissance Tower.3 See First Am.
Compl. [ECF No. 67]. Plaintiff names six defendants (in addition to other “unknown/unnamed
individuals”): her landlords (Defendants Sharon Rammelsberg, Sharri Una Rammelsberg, and Saundra
LaVon Herrmann (collectively, “Defendant Landlords”)), the “authorized agent” for the landlords
(Defendant Mary Stitcher), the property management company for the condominium unit (Defendant
William Douglas Management, Inc. (“WDM”)), and the homeowners’ association for the resort where
the unit is located (Defendant Myrtle Beach Resort Master Homeowners Association, Inc.). First Am.
Compl. at pp. 1–5. Plaintiff captions six causes of action in her Amended Complaint: (1) Constructive
Eviction, (2) Negligent Supervision, (3) 42 U.S.C. § 1981 (Race Discrimination and Retaliation), (4)
The Fair Housing Act of 1968, 42 U.S.C. § 3601, et seq. (“FHA”), (5) Intentional Infliction of
Emotional Distress, and (6) Interference with Contractual Relations. Id. at pp. 14–19.
Defendant Landlords, Defendant Stitcher, and Defendant WDM have each filed motions to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).4 See ECF Nos. 77, 82, & 86. Plaintiff has responded to
the motions, and Defendant Landlords and Defendant WDM have replied. See ECF Nos. 102–106. The
Magistrate Judge recommends: (1) granting in part and denying in part Defendant Landlords’ motion
3

The R & R thoroughly summarizes the factual allegations in Plaintiff’s Amended Complaint. See R & R
at pp. 3–11.
4

Defendant Myrtle Beach Resort Master Homeowners Association, Inc. was served after the other defendants
filed their motions to dismiss; it has filed an answer (ECF No. 119) but not a motion to dismiss. Thus, Plaintiff’s
federal and state law claims remain pending against this defendant.

3

to dismiss, (2) granting Defendant Stitcher’s motion to dismiss, and (3) granting in part and denying
in part Defendant WDM’s motion to dismiss. R & R at p. 27. In a nutshell, the Magistrate Judge
recommends allowing three of Plaintiff’s state law claims to go forward: constructive eviction and
negligent supervision against Defendant Landlords; and negligent supervision and intentional
interference with contractual relations against Defendant WDM. See id. Plaintiff, Defendant
Landlords, and Defendant WDM have filed objections to the R & R.5 See ECF Nos. 143, 145, & 160.
Initially, the Court notes Plaintiff does not specifically object to the Magistrate Judge’s
determination that Plaintiff—as an attorney6—is not entitled to the liberal construction of her pleading
ordinarily afforded to pro se litigants. R & R at p. 7 n.7; see Diamond & Camby, supra (stating that
absent a specific objection, the Court need only review the Magistrate Judge’s proposed finding and
recommendation for clear error and need not give reasons for adopting it). The Court discerns no clear
error in the Magistrate Judge’s determination regarding the treatment of Plaintiff’s pro se status. See
generally Rashad v. Jenkins, 2016 WL 901279, at *3 (E.D. Va. Mar. 3, 2016) (“The United States Court
of Appeals for the Fourth Circuit has not addressed that point directly. However, . . . [o]ther courts have
drawn a distinction between pro se attorneys and other pro se parties.” (collecting cases from the
Second, Fifth, Sixth, Seventh, and Tenth Circuits holding pro se attorneys are not entitled to the liberal
5

Plaintiff and Defendant WDM have filed replies to the objections. See ECF Nos. 166 & 172.

6

Ms. Awkard was admitted to the Maryland Bar in 1999. See Maryland Attorney Listing, available at
https://mdcourts.gov/lawyers/attylist (input “Awkard” for last name and “Veronica” for first name); see generally
Hall v. Virginia, 385 F.3d 421, 424 & n.3 (4th Cir. 2004) (taking judicial notice of publicly available information
on state government website); Sierra Club v. United States Dep’t of the Interior, 899 F.3d 260, 276 n.4 (4th Cir.
2018) (federal government website). She is clearly familiar with federal court procedure, and a brief Westlaw search
reflects her prior practice in federal court. See, e.g., Konah v. D.C., 971 F. Supp. 2d 74 (D.D.C. 2013) (representing
a plaintiff in a complex civil rights case) (citing Konah v. D.C., 915 F. Supp. 2d 7 (D.D.C. 2013), and Konah v. D.C.,
815 F. Supp. 2d 61 (D.D.C. 2011)); Grissom v. D.C., 853 F. Supp. 2d 118 (D.D.C. 2012) (representing a § 1983
plaintiff); Tolson v. Springer, 618 F. Supp. 2d 14 (D.D.C. 2009) (Title VII case); Kyei v. Harmony Hall, Inc., 2012
WL 6681948 (D. Md. Dec. 21, 2012) (representing a plaintiff in an employment discrimination case that survived
summary judgment); Tibbs v. Williams, 263 F. Supp. 2d 39, 40 (D.D.C. 2003) (§ 1983 and state law claims).

4

and lenient treatment ordinarily afforded pro se parties)).
The Court will now address the parties’ respective objections.
I.

Plaintiff’s Objections
In her objections, Plaintiff rehashes various allegations in her Amended Complaint7 and asserts

that “[a]s to the claims rejected by the [Magistrate Judge], Plaintiff contends that in her Amended
Complaint, she made adequate factual allegations to raise a reasonable inference that all Defendants are
liable for the claims in her Amended Complaint,” Pl.’s Objs. [ECF No. 160] at p. 4, and that “the Court
should maintain all of Plaintiff[’]s claims since all Defendants were on notice and that the Amended
Complaint was sufficiently pled.” Id. at p. 7.
However, Plaintiff does not appear to specifically object to the Magistrate Judge’s analysis of
her federal claims under § 1981, § 1982, and the FHA. She instead rehashes some of the allegations
in her complaint and asserts, “Plaintiff perceived that all the adverse actions to which she was
repeatedly subjected was based in racial animas [sic].” Pl.’s Objs. at p. 2. Regardless, the Court has
conducted a de novo review and agrees with the Magistrate Judge that Plaintiff’s Amended Complaint
fails to state plausible claims of racial discrimination under those federal statutes. Accordingly, the

7

Although Plaintiff challenges the Magistrate Judge’s summary of the allegations in her Amended Complaint,
see Pl.’s Objs. at pp. 3–5, the Court notes the R & R fairly summarizes those allegations. However, the Court does
modify the first sentence of the R & R to reflect that Plaintiff has paid the filing fee and is not requesting to proceed
in forma pauperis. See ECF No. 1.
Plaintiff also asserts the Magistrate Judge erroneously conducted a “Summary Judgment review,” Pl.’s Objs.
at p. 1, but the R & R clearly indicates the Magistrate Judge applied the correct standard for a motion to dismiss
under Fed. R. Civ. P. 12(b)(6).

5

Court will adopt the R & R regarding Plaintiff’s federal claims.8, 9
Plaintiff does specifically object to the Magistrate Judge’s rejection of her state law claim for
outrage/intentional infliction of emotional distress that is asserted against Defendant Landlords,
Defendant Stitcher, and Defendant WDM. See Pl.’s Objs. at p. 7. However, the Court agrees with the
Magistrate Judge that Plaintiff’s Amended Complaint fails to state a plausible outrage claim because
it does not sufficiently allege facts establishing extreme and outrageous conduct (the second element
of this cause of action). See R & R at pp. 23–26; Argoe v. Three Rivers Behavioral Health, L.L.C., 710
S.E.2d 67, 74 (S.C. 2011) (listing the elements of an outrage claim); see, e.g., Callum v. CVS Health
Corp., 137 F. Supp. 3d 817, 856–57 (D.S.C. 2015) (finding the plaintiff failed to state a plausible
outrage claim because his allegations did “not rise to the level of extreme and outrageous conduct
necessary to state a claim”). Accordingly, the Court will grant the motions to dismiss regarding
Plaintiff’s outrage claim.10
8

Plaintiff also does not appear to specifically object to the Magistrate Judge’s analysis of her state law claims
for constructive eviction, negligent supervision, or intentional interference with contractual relations. The Court
addresses these claims when resolving the defendants’ objections below.
9

Again, Defendant Myrtle Beach Resort Master Homeowners Association, Inc. has not moved to dismiss
the federal claims, and therefore those claims remain pending against it. The Court notes such a motion will likely
be successful in light of the Court’s above finding that the Amended Complaint fails to state plausible claims of racial
discrimination under § 1981, § 1982, and the FHA.
10

Plaintiff also specifically objects to the Magistrate Judge’s rejection of any negligence claim asserted in the
Amended Complaint. See Pl.’s Objs. at pp. 1–2 (citing an attachment to her complaint and indicating the negligence
claim arises from a 2016 incident when Plaintiff was injured in an elevator). The Magistrate Judge rejected any claim
of negligence because Plaintiff “did not set out a separate count for ‘negligence’ in her pleading” and instead
indicated for the first time that she was pursuing a negligence claim in her responses to the motions to dismiss. R
& R at p. 7 n.7. The Court agrees with the Magistrate Judge that Plaintiff’s Amended Complaint does not allege a
separate cause of action for negligence; instead, it sets forth six other distinct, separately-captioned causes of action.
Meanwhile, the elevator incident is buried in an attachment to her complaint without indication that Plaintiff is
pursuing a negligence claim based on the incident. See ECF No. 67-1 at pp. 5–6. Moreover, as noted above, Plaintiff
is an attorney and obviously familiar with how to draft a complaint in federal court. See generally Fed. R. Civ. P.
8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief[.]”); contra Terry v. United States, 120 F. 483, 485 (4th Cir. 1903) (“The
plaintiff . . . is a layman and not presumed to be familiar with the technical forms of pleading . . . .”).
Additionally, Plaintiff contends the R & R “did not clearly that Plaintiff could amend her deficiencies.” Pl.’s

6

II.

Defendant Landlords’ and Defendant WDM’s Objections Concerning Plaintiff’s Negligent
Supervision Claim
Defendant Landlords and Defendant WDM object to the Magistrate Judge’s recommendation

regarding Plaintiff’s negligent supervision claim. See ECF Nos. 143 & 145.
The South Carolina Supreme Court has set forth the requisite elements of a negligent
supervision claim several times, but with some discrepancies (as indicated by the parties’ objections
below). Compare Doe v. Bishop of Charleston, 754 S.E.2d 494, 500 (S.C. 2014), James v. Kelly
Trucking Co., 661 S.E.2d 329, 330 (S.C. 2008), and Degenhart v. Knights of Columbus, 420 S.E.2d
495, 496 (S.C. 1992). However, at the very least, these cases hold that an employer can be liable for
negligent supervision when: (1) its employee harms another when she is on the employer’s premises,
is on premises she is privileged to enter only as employee, or is using the employer’s chattel; (2) the
employer knows or has reason to know it has the ability to control the employee; and (3) the employer
knows or has reason to know of the necessity and opportunity to exercise such control. See Doe; James;
and Kelly. “[T]he employer’s liability under such a theory does not rest on the negligence of another,
but on the employer’s own negligence. Stated differently, the employer’s liability under this theory is
not derivative, it is direct.” James, 661 S.E.2d at 331.
A.

Defendant Landlords’ Objection

Objs. at p. 2. However, she does not specifically ask to amend her complaint, has not filed a motion to amend it
(which she has already amended once), and has not submitted a proposed second amended complaint with her
objections. Accordingly, the Court declines to sua sponte grant leave to amend at this time. See Drager v. PLIVA
USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014) (“Regardless of the merits of the desired amendment, a district court
does not abuse its discretion ‘by declining to grant a motion that was never properly made.’” (quoting Cozzarelli v.
Inspire Pharms., Inc., 549 F.3d 618, 630–631 (4th Cir. 2008)); Cozzarelli, 549 F.3d at 630–31 (finding no abuse of
discretion where the plaintiffs requested leave to amend in a response but did not file a motion to amend or a
proposed amended complaint).

7

In their sole objection,11 Defendant Landlords argue Plaintiff fails to state a plausible negligent
supervision claim because the Amended Complaint “clearly attempts to allege” that the employee
(Defendant Stitcher) “was acting within the course and scope of her employment,” and therefore any
liability on their part would fall under a vicarious liability theory. ECF No. 143 at pp. 1–2. The S.C.
Supreme Court has implicitly rejected the notion that a negligent supervision claim only applies when
an employee acts outside the scope of her employment:
Some jurisdictions have limited the application of the theories
of negligent hiring, training, supervision, and entrustment to instances
where an employee acts outside the scope of his employment, and this
proposition finds some support in the comments to the Restatement.
See Di Cosala v. Kay, 450 A.2d 508, 515 (N.J. 1982); and
RESTATEMENT (SECOND) § 317 cmt. a. Our case law has not
previously recognized such a distinction, and the parties in this
case did not argue that we should begin to do so.
James v. Kelly Trucking Co., 661 S.E.2d 329, 331 n.1 (S.C. 2008) (emphasis added); see, e.g.,
Holcombe v. Helena Chem. Co., 238 F. Supp. 3d 767, 772 (D.S.C. 2017) (allowing a negligent
supervision claim to survive summary judgment where the employee “was acting within the scope of
his employment” (emphasis added)). Accordingly, the Court overrules Defendant Landlords’ objection.
B.

Defendant WDM’s Objections

Defendant WDM first argues Plaintiff fails to state a plausible negligent supervision claim
because she has not alleged any facts suggesting WDM’s employees intentionally harmed her. ECF No.
145 at pp. 10–11. Judge Duffy recently rejected the same argument in Holcombe, supra, and the Court
agrees with Judge Duffy’s thorough survey of South Carolina case law and following conclusion:
[A]lthough some South Carolina cases mention intentional harm as

11

Defendant Landlords do not specifically object to the Magistrate Judge’s recommendation regarding
Plaintiff’s constructive eviction claim.

8

an element of negligent supervision claims, others do not. The
unifying feature of the latter line of cases is that the employee caused
the harm while acting within the scope of his employment. South
Carolina law therefore appears to require proof of intentional harm
only where the employee caused harm while acting outside the scope
of his employment.
238 F. Supp. 3d at 772.
Next, Defendant WDM argues Plaintiff fails to plausibly allege all elements of a negligent
supervision claim. ECF No. 139 at p. 17. WDM asserts the Amended Complaint does not indicate
“that (1) the entries into the Unit were improper and (2) WDM had reason to know a specific individual
or group of individuals were engaging in improper behavior.” Id. The Court disagrees with these
assertions because—as the Magistrate Judge explains in detail—Plaintiff alleges she made repeated
complaints to WDM (and other defendants) about the allegedly unlawful entries into her condo and
specified to WDM (and the other defendants) who was making those entries. See, e.g., Am. Compl.
at ¶ 1(allegations of an unlawful entry in March 2016 by WDM’s “agents and employees” regarding
extermination; and Plaintiff complaining to WDM about these actions); id. at ¶ 2 (allegations of an
unlawful entry in June 2016 by WDM’s “supervisory staff” regarding wind noise and other subsequent
unlawful entries by the “same employees or agents”; and Plaintiff notifying WDM “about harassment
and unlawful entrances into the subject Unit”); id. at ¶ 28 (alleging WDM turned “a blind eye to the
crimes that were being committed in the said Unit and to Plaintiff and condoned the criminal actions
by their inaction and were knowledgeabl[e] that Plaintiff was vulnerable”).
Plaintiff’s Amended Complaint states a plausible negligent supervision claim against WDM,
and therefore the Court overrules Defendant WDM’s objections concerning this claim.
III.

Defendant WDM’s Objections Regarding Plaintiff’s Intentional Interference with

9

Contractual Relations Claim
Defendant WDM asserts Plaintiff’s Amended Complaint fails to state a plausible claim for
intentional interference with contractual relations (“IICR”). See ECF No. 145 at pp. 4–10.
“To establish a cause of action for tortious interference with contractual relations, a plaintiff
must show: 1) the existence of a contract; 2) knowledge of the contract; 3) intentional procurement of
its breach; 4) the absence of justification; and 5) resulting damages.” Eldeco, Inc. v. Charleston Cty.
Sch. Dist., 642 S.E.2d 726, 731 (S.C. 2007). This cause of action “protects the property rights of the
parties to a contract against unlawful interference by third parties.” Dutch Fork Dev. Grp. II, LLC v.
SEL Properties, LLC, 753 S.E.2d 840, 844 (S.C. 2012).
Defendant WDM first contends Plaintiff does not plausibly allege that WDM had knowledge
of the existence of any contract. ECF No. 145 at pp. 5–6. However, as the Magistrate Judge correctly
concludes, Plaintiff does in fact allege such knowledge, as the Amended Complaint states, “Defendants’
actions interfered with Plaintiff[’s] contractual rights of quiet enjoyment and her benefits as a tenant
and invitee.” Am. Compl. at ¶ 30. Plaintiff sufficiently alleges the second element of her IICR claim.
Next, WDM argues Plaintiff does not plausibly allege that WDM intentionally procured the
breach of the contract. ECF No. 145 at pp. 6–9. WDM’s argument is two-fold, in that it contends (1)
Plaintiff never alleges she breached any contract at all; and (2) Plaintiff does not allege WDM induced
a breach of contract. Id. Regarding WDM’s first argument, Plaintiff does in fact allege a breach—by
alleging she renewed her one-year lease in November 2016 but turned in the keys and left in June 2017
(five months before the expiration of the renewed lease), see Am. Compl. at p. 2 & ¶ 1, and by attaching
a copy of the one-year lease to her complaint. See ECF No. 67-2 at pp. 2–3. Regarding WDM’s second
argument, Plaintiff does in fact allege WDM intentionally procured the breach—by repeatedly allowing
10

its employees to unlawfully enter her condo and by not adequately repairing her condo. See, e.g, Am.
Compl. at ¶¶ 1, 2 & 28. Plaintiff sufficiently alleges the third element of her IICR claim.
Finally, WDM asserts Plaintiff does not plausibly allege that WDM acted without justification.
ECF No. 145 at pp. 9–10. However, the Court agrees with the Magistrate Judge that “[i]t is a
reasonable inference from Plaintiff’s factual allegations that WDM’s alleged refusal to take corrective
measures with its agents was without justification.” See Ashcroft v. Iqbal, 556 U.S. at 678 (“A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”). Plaintiff sufficiently
alleges the fourth element of her IICR claim.
Plaintiff’s Amended Complaint states a plausible IICR claim against WDM, and therefore the
Court overrules Defendant WDM’s objections concerning this claim.
Conclusion
For the foregoing reasons, the Court OVERRULES the parties’ objections and ADOPTS the
Magistrate Judge’s R & R [ECF No. 139]. Accordingly, the Court:
(1)

GRANTS the motion to dismiss [ECF No. 82] filed by Defendant Mary Stitcher;

(2)

GRANTS IN PART AND DENIES IN PART the motion to dismiss [ECF No. 77]
filed by Defendants Sharon Rammelsberg, Sharri Una Rammelsberg, and Saundra
LaVon Herrmann; and

(3)

GRANTS IN PART AND DENIES IN PART the motion to dismiss [ECF No. 86]
filed by Defendant William Douglas Management, Inc.

To clarify, Plaintiff’s only remaining claims are: constructive eviction and negligent
supervision against Defendants Sharon Rammelsberg, Sharri Una Rammelsberg, and Saundra
LaVon Herrmann; negligent supervision and intentional interference with contractual relations

11

against Defendant William Douglas Management, Inc.; and the pending federal and state claims
against Defendant Myrtle Beach Resort Master Homeowners Association, Inc. (which has
answered but not filed a motion to dismiss).12
IT IS SO ORDERED.

Florence, South Carolina
September 27, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

12

The Court notes Plaintiff purports to invoke both federal and diversity jurisdiction, see 28 U.S.C. §§ 1331
and 1332, and provides a Florida address in her pleadings, but she states in her Amended Complaint that she filed
her complaint at the Charleston courthouse the day after leaving Myrtle Beach. See Am. Compl. at ¶ 20. Plaintiff
also alleges she had a lease in effect until November 2017. See id. at ¶ 1; ECF No. 67-2 at pp. 2–3.
In light of Plaintiff’s allegations, the Magistrate Judge should determine whether there actually is diversity
jurisdiction in this case (i.e., was Plaintiff in fact a citizen of Florida when she filed her complaint). See
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991) (“[D]iversity of citizenship is assessed at
the time the action is filed.” (emphasis added)); see generally Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 480 (4th Cir. 2005) (“A federal court has an independent obligation to assess its subject-matter
jurisdiction, and it will raise a lack of subject-matter jurisdiction on its own motion.” (internal quotation marks
omitted)). The Court notes that if Defendant Myrtle Beach Resort Master Homeowners Association, Inc. moves to
dismiss the federal claims, such a motion will likely be successful in light of the Court’s above rulings; and thus, the
Court would no longer have federal question jurisdiction. In that event, the Court strongly questions whether there
is complete diversity, and directs the Magistrate Judge to consider this issue at the appropriate time.

12