Mosley v. Alston et al
ORDER granting 8 Motion to Remand; granting 9 Motion to Remand to State Court. Signed by Honorable Patrick Michael Duffy on 03/23/2017. Clerk's Notice: Attorneys are responsible for supplementing the State Record with all documents filed in Federal Court. (adeh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Mark C. Mosley,
Christine Alston, as personal
representative of the Estate of Robert
Alston; Davita, Inc. d/b/a DaVita
Walterboro Dialysis # 3073; DVA
Healthcare Renal Care, Inc.; DVA
Renal Healthcare, Inc.; DaVita
Healthcare Partners, Inc.; and
C.A. No.: 9:17-cv-138-PMD
This matter is before the Court on two motions to remand under 28 U.S.C. § 1447(c): one
filed by Plaintiff Mark C. Mosley (ECF No. 8) and another filed by Defendant Christine Alston
(ECF No. 9). Mosley and Alston argue removal was improper because, inter alia, Alston did not
consent to it. For the reasons herein, the Court grants the motions.
BACKGROUND AND PROCEDURAL HISTORY
Robert Alston spent the last morning of his life undergoing dialysis at a clinic in
Walterboro, South Carolina. Defendant Howard Elj worked at the clinic, which Defendants
Davita, Inc., DVA Healthcare Renal Care, Inc.; DVA Renal Healthcare, Inc., and DaVita
Healthcare Partners, Inc.1 owned and operated. When Mr. Alston’s treatment ended, the DaVita
defendants allowed him to leave, and he began driving home to Hampton County. He was in no
condition to drive. Near Islandton, he lost consciousness while driving, drifted over the center
line of state highway 63, and collided head-on into a car that Mosley was driving. Mosley was
severely and permanently injured. Mr. Alston died. Mosley filed a negligence suit in South
For ease of reference, the Court refers to these entities and Elj collectively as the DaVita defendants.
Carolina state court, alleging claims against Alston, who represents Mr. Alston’s estate, and
against the DaVita defendants. Mosley faults Mr. Alston for crossing the center line, for failing
to drive safely, and for driving when he was not in a condition to do so. He faults the DaVita
defendants for allowing him to drive after dialysis and for failing to warn him of the dangers of
Once served, the DaVita defendants removed the case to this Court. Alston, however, did
not join the removal notice, and she did not consent to removal.
The DaVita defendants
accounted for that by asserting in their notice that Alston’s true alignment in this case is as a
plaintiff. Alston and Mosley filed separate motions to remand. The DaVita defendants filed
responses to each motion, and Alston filed a reply. These matters are thus ripe for consideration.
28 U.S.C. § 1441(a) allows “the defendant or defendants” named in certain types of statecourt cases to remove the case to federal district court.
The “defendant or defendants”
accomplish removal by filing a notice that contains a short and plain statement of the grounds for
removal. 28 U.S.C. § 1446(a). Courts have construed the “defendant or defendants” language in
those statutes as requiring that all defendants in a case join in or consent to removal. Hartford
Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013). That requirement
is called the “rule of unanimity.” Id. Failure to comply with the rule renders the removal
defective and is grounds to remand the case to state court. See Payne ex rel. Estate of Calzada v.
Brake, 439 F.3d 198, 203 (4th Cir. 2006) (holding the failure of all defendants to join in the
removal petition is a nonjurisdictional defect in the removal); Palmetto Automatic Sprinkler Co.
v. Smith Cooper Int’l, Inc., 995 F. Supp. 2d 492, 495 (D.S.C. 2014) (“[O]rdinarily, the failure of
any defendant to consent to removal renders the removal improper and requires remand.”)
Alston neither joined nor consented to the DaVita defendants’ removal. The DaVita
defendants argue, however, that Alston’s consent was unnecessary because Alston should be
realigned as a plaintiff. The Court disagrees.
The potential realignment of parties is a two-step analysis: “First, the court must
determine the primary issue in the controversy.
Next, the court should align the parties
according to their positions with respect to the primary issue.” U.S. Fid. & Guar. Co. v. A & S
Mfg. Co., 48 F.3d 131, 133 (4th Cir. 1995) (diversity issue); see Wayne J. Griffin Elec., Inc. v.
Travelers Prop. Cas. Co. of Am., No. 1:13CV882, 2014 WL 842983, at *4–5 (M.D.N.C. Mar. 4,
2014) (unanimity issue). The primary issue in this case is obvious: who is liable to Mosley for
her injuries? Cf. U.S. Fid. & Guar. Co., 48 F.3d at 134 (finding district court properly identified
primary issue to be whether any, some, or all of several insurers owed manufacturer duty to
indemnify); see also Sacra v. Jackson Hewitt, Inc., No. 1:15-16265, 2016 WL 698149, at *5
(S.D. W. Va. Feb. 19, 2016) (“[T]he majority of courts do not realign an alleged tortfeasor
defendant in cases where his or her liability has not been established.”). Although Alston and the
DaVita defendants have different answers to that question, their positions are still ultimately
adverse to Mosley. Because Mosley and Alston are therefore properly situated on opposite sides
of this case, the Court will not realign Alston.
The upshot of the Court’s conclusion is that the DaVita defendants have not met their
burden of showing that they satisfied the unanimity rule. The Court finds their removal defective
and must therefore remand this matter to state court.2
For the foregoing reasons, it is ORDERED that Mosley’s and Alston’s motions to
remand are GRANTED. This case is hereby REMANDED to the Court of Common Pleas for
Hampton County, South Carolina.
AND IT IS SO ORDERED.
March 23, 2017
Charleston, South Carolina
Consequently, the Court does not reach Mosley’s and Alston’s other grounds for remand.
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?