Bergmann v. Federal National Mortgage Association et al
ORDER AND OPINION granting 17 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 Honorable Margaret B Seymour on 7/12/2011.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jennifer R. Bergmann as Personal
Representative of the Estate of Rita
Federal National Mortgage Association )
(Fannie Mae), Frank Moriarty, Shelton )
Properties, Inc., FirstServices
Residential Realty, Inc. and Kim
C.A. No. 9:11-CV-00417
ORDER AND OPINION
Plaintiff Jennifer R. Bergmann, (“Plaintiff”) in her capacity as the Personal Representative of
the Estate of Rita L. Rogers, filed this survival action in the Jasper County Court of Common Pleas
on January 7, 2011, against Defendants Federal National Mortgage Association (“Fannie Mae”);
Frank Moriarty (“Moriarty”); Shelton Properties, Inc. (“Shelton”); FirstServices Residential Realty,
Inc (“FirstServices”); and Kim Savage (“Savage”) (collectively Defendants). Plaintiff seeks to
recover damages for the death of the decedent who was allegedly struck by fallen pine tree limbs
located on Defendants’ property. Fannie Mae removed the case on February 18, 2011. This matter
is before the court on the Plaintiff’s motion to remand, which was filed on March 17, 2011. On April
12, 2011, Fannie Mae filed its response to Plaintiff’s motion to remand. After reviewing the filings
of the parties and the record in this case, the court finds that remand of the case is appropriate.
FirstServices was served by certified mail on January 13, 2011.1 Entry 35 at 3. Shelton
Properties was served on January 18, 2011. Entry 35 at 5. Savage acknowledges that she received
a copy of the summons and complaint on January 18, 2011, but contends that she was not properly
served. Entry 9 at 1-2. Fannie Mae acknowledges that it received a copy of the summons and
complaint on January 24, 2011, but contends that it has not been properly served. Id. Moriarty was
served on February 11, 2011. Entry 35 at 1. On February 18, 2011, when Fannie Mae filed its notice
of removal, no other defendants joined in the removal. Entry 1. On March 7, 2011, Fannie Mae,
FirstServices, and Savage filed a joint statement in response to the court’s order concerning removal.
Entry 9. On April 8, 2011, Moriarty, Shelton, FirstServices, and Savage filed a consent to removal.
Plaintiff contends that removal was defective and that remand is required because Defendants
did not all timely consent to removal. Entry 17-1 at 8. Defendants contend that removal was proper
because: 1) service upon Fannie Mae was defective, Entry 25 at 7-8;2 and 2) “[a]ll Defendants have
at all times consented to removal,” id. at 8.
Title 28, United States Code, Section 1446 provides:
First Services denies that it was served with the summons and complaint, but a return receipt for
certified mail dated January 13, 2011 and filed with the court indicates otherwise. Entry 9 at 1-2;
Entry 35 at 3; See Fed. R. Civ. P. 4(d)(8).
South Carolina Rule of Civil Procedure 4(d), upon which Defendants rely in arguing that Fannie Mae was
not properly served, provides that service by certified mail is effective upon the date of delivery as shown
on the return receipt. S.C.R. Civ. P. 4(d)(8). The return receipt for Plaintiff’s certified mailing to Fannie
Mae does not contain a delivery date.
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution
from a State court shall file in the district court of the United States for the district and
division within which such action is pending a notice of removal signed pursuant to Rule
11 of the Federal Rules of Civil Procedure and containing a short and plain statement of
the grounds for removal, together with a copy of all process, pleadings, and orders served
upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty 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,
or within thirty days after the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be served on the defendant,
whichever period is shorter.
Id. The Fourth Circuit has adopted the “McKinney Intermediate Rule” with regard to the timing and
consent to removal in multiple defendant cases. “[T]he McKinney Intermediate Rule requires notice
of removal to be filed within the first-served defendant’s thirty-day window, but gives later-served
defendants thirty days from the date they were served to join the notice of removal.” Barbour v. Int’l
Union, No. 08-1740, 2011 WL 242131, at *7 (4th Cir. Jan. 28, 2011) (internal citation omitted).1
The rule of unanimity requires that all defendants join in a petition for removal. See Barbour,
2011 WL 242131 at *5. “When a defendant does not timely join in a removal petition and the
plaintiff does not waive the irregularity, the plaintiff is entitled to a remand.” Funchess v. Blitz
U.S.A., Inc., 2010 WL 4780357 at *4 (D.S.C. Nov.16, 2010). Under the McKinney Intermediate
Rule, each defendant is required to join in a notice of removal within 30 days of being served. Id.
In the case before the court, the first-served Defendant, FirstServices, was served on January 13, 2011
as evidenced by a certified mail return receipt dated January 13, 2011. Pursuant to the McKinney
Intermediate Rule, notice of removal had to have been filed within thirty days of service upon
FirstServices, which was on February 14, 2011, in order to be timely. Thus, Fannie Mae’s notice of
removal, which was filed on February 18, 2011, was untimely. However, because Plaintiff concedes in
her motion to remand that Fannie Mae’s notice of removal was timely, Entry 17-1 at 8., and because the
court assumes without deciding that original jurisdiction exists in this case, this argument is waived. See
Bank of America v. Weston, C/A No. 2:11–468–RMG–B, 2011 W L 1630923 (D.S.C. Mar 23, 2011) (“a
plaintiff’s objection to an untimely removal by a defendant, in certain circumstances, is a waivable
defense when a federal district court otherwise would have subject-matter jurisdiction.”).
at 12. “[S]ection 1446(a) ‘requires an official filing or voicing of consent.’” Id. (citing Mason v.
IBM, 543 F. Supp. 444, 446 (M.D.N.C.1982)).
In the case before the court, although Defendants argue that “[a]ll Defendants at all times
consented to removal,” Moriarty and Shelton did not voice their consent to removal until April 8,
2011. Based upon the dates of service, neither Moriarty nor Shelton timely consented to removal.
Because removal was not proper, the court will refrain from addressing Plaintiff’s other basis for
remand, namely that Fannie Mae’s charter does not provide for federal question jurisdiction pursuant
to Article III of the United States Constitution.1 See Barbour v. Int’l Union, 640 F.3d 599, 617-18
(4th Cir. 2011) (remanding based upon untimeliness and declining to address constitutional issue
of preemption because judicial restraint requires court to avoid reaching constitutional questions
prior to the necessity of deciding them) (citing cases).
Plaintiff’s motion to remand (Entry 17) is granted.
IT IS SO ORDERED.
s/ Margaret B. Seymour
The Honorable Margaret B. Seymour
District Court Judge
Columbia, South Carolina
July 12, 2011
Although Fannie Mae argued on brief that Fannie Mae’s charter confers “original and exclusive” jurisdiction on
federal courts (Entry 25 at 3), the court notes that in Am. Ntl. Red Cross v. S.G., 505 U.S. 247 (1992), and Pirelli
Armstrong v. Raines, 534 F. 3d 779 (D.C. Cir. 2008), cases upon which Fannie M ae’s argument is based, the
charters at issue were only found to confer original, but not exclusive, subject matter jurisdiction on federal courts.
Am. Ntl. Red Cross, 505 U.S. at 252-57; Pirelli, 534 F. 3d at 784-88.
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