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Sizelove-Farmer v. Johnson

United States District Court, D. South Carolina, Aiken Division

August 13, 2014

Laura J. Sizelove-Farmer, Plaintiff,
v.
Daniel W. Johnson, Defendant.

ORDER AND OPINION

J. MICHELLE CHILDS, District Judge.

This matter is before the court pursuant to Plaintiff Laura J. Sizelove-Farmer's ("Plaintiff") motion to remand this matter to the Aiken County (South Carolina) Court of Common Pleas. (ECF No. 17.) Cincinnati Insurance Company ("Cincinnati")[1], purportedly appearing in the name of Daniel W. Johnson ("Defendant")[2], opposes this motion to dismiss. (ECF No. 28.) For the reasons set forth below, the court GRANTS Plaintiff's motion to remand.

RELEVANT BACKGROUND TO PENDING MOTION

On September 27, 2013, Plaintiff filed this personal injury action in the Aiken County Court of Common Pleas alleging that she suffered injuries after being struck by Defendant's vehicle while riding her bicycle. (ECF No. 1-1 at 2.) On November 7, 2013, Cincinnati filed a Notice of Removal in this court. (ECF No. 1.) In its Notice of Removal, Cincinnati contended that pursuant to South Carolina Code Ann. § 38-77-160 (1976), Cincinnati had a right to appear on behalf of Defendant and thus possessed the right to remove this action from state court to this court. ( See id. at 3.) Section § 38-77-160 provides, in relevant part, that an "insurer has the right to appear and defend in the name of the underinsured motorist in any action which may affect its liability and has thirty days after service of process on it in which to appear." Cincinnati, moreover, contended that it was the "real party in interest" and Defendant was merely a "nominal defendant." ( Id. ) Accordingly, Cincinnati asserted that since its principal place of business is in Ohio and since "[Defendant's] citizenship is ignored as a nominal defendant, " there exists complete diversity and the matter is removable. ( Id. at 3.)

Plaintiff filed the instant motion to remand pursuant to 28 U.S.C. §§ 1441(a) and 1447(c), alleging that since Cincinnati is not a named party, Cincinnati cannot properly remove pursuant to 28 U.S.C. § 1441. (ECF No. 17 at 1.) Plaintiff contends that "the fact that a carrier of underinsured motorist coverage has certain rights under a state statute to defend its own interests does not authorize it to remove this case under the federal statute." ( Id. ) Thus, according to Plaintiff, such purported removal is defective and the case should be remanded to the Aiken County Court of Common Pleas. ( Id. )

LEGAL STANDARD

Removal of a civil action is governed by 28 U.S.C. § 1441. Section 1441(a) provides that:

[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Id. (emphases added).

Furthermore, remand of a claim is governed by 28 U.S.C. § 1447. Section 1447(c) provides, in part, that "[a] motion to remand [a] case on the basis of any defect other than lack of subject matter jurisdiction must be made within [thirty] 30 days after the filing of the notice of removal under section 1446(a)." "Thus, § 1447(c) allows a district court to remand based on... a defect in removal other than a lack of subject matter jurisdiction that was raised by the motion of a party within 30 days after the notice of removal was filed.'" In re Norfolk Southern Ry. Co., Nos. 13-2112, 13-2127, 2014 WL 2809069, at *3 (4th Cir. June 23, 2014) (quoting Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008)) (internal quotation marks omitted).

Finding that the purported removal in the instant matter was defective and that Plaintiff's motion to remand was made within thirty (30) days after Cincinnati's filing of the Notice of Removal, [3] the court remands this matter to the Aiken County Court of Common Pleas.

ANALYSIS

Since removal jurisdiction evokes great federalism concerns, removal jurisdiction must be strictly construed. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Thus, "if federal jurisdiction is doubtful, a remand is necessary." Id. Here, it is beyond "doubtful" that removal jurisdiction does not exist.

The removal statute, 28 U.S.C. § 1441(a), expressly states removal may be effected by the defendant or defendants. Here, it cannot tenably be suggested that Cincinnati is a "defendant." In fact, Cincinnati is not even a named party in the instant matter. Nevertheless, Cincinnati attempts to claim it is the "real party in interest" and that Defendant is merely nominal. ( See ECF 28 at 8 (alleging that "[Defendant] is a nominal party to this litigation, " and that "Cincinnati is the real party in interest to this action.").) Cincinnati asserts that S.C. Code Ann. § 38-77-160 allows it to assume control of the defense and thus allows it to remove this case to federal court. The court, however, finds that S.C. Code Ann. § 38-77-160 does not contemplate allowing a "nonparty" to remove, but even assuming arguendo it did, removal is governed by federal law, not state law. Hickman v. Hinson No. 12-03160, 2013 WL 375230, at *2 (D.S.C. ...


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