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Progressive Mountain Ins. Co. v. Dana C. McLendon Co. Inc.

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

March 4, 2015

PROGRESSIVE MOUNTAIN INS. CO., Plaintiff,
v.
DANA C. McLENDON CO. INC., Defendant.

ORDER

DAVID C. NORTON, District Judge.

This matter is before the court on a motion to remand brought by plaintiff Progressive Mountain Insurance Company ("Progressive"). For the reasons that follow, the court grants Progressive's motion.

I. BACKGROUND

Progressive filed a complaint in the Court of Common Pleas of Charleston County, on September 12, 2014 for negligence and breach of contract resulting from the alleged mishandling of a marine survey performed by defendant Dana C. McLendon Company, Inc. ("McLendon") on Progressive's insured's vessel. Def.'s Resp. 1. McLendon filed a notice of removal on November 14, 2014, asserting original jurisdiction under 28 U.S.C. § 1331(1), and removability under 28 U.S.C. § 1441. McLendon then filed an answer to the complaint on November 17, 2014. On December 12, 2014, Progressive filed the instant motion to remand back to state court. McLendon filed a response in opposition on January 20, 2015. The motion has been fully briefed and is ripe for the court's review.

II. REMOVAL STANDARD

The right to remove a case from state court to federal court derives from 28 U.S.C. § 1441, which provides that "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... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The party seeking to remove a case from state court to federal court bears the burden of demonstrating that jurisdiction is proper at the time the petition for removal is filed. Caterpillar Inc. v. Lewis, 519 U.S. 61, 73 (1996). If federal jurisdiction is doubtful, remand is necessary. Mulcahey v. Columbua Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994); Pohto v. Allstate Ins. Co., No. 10-2654, 2011 WL 2670000, at *1 (D.S.C. July 7, 2011) ("Because federal courts are forums of limited jurisdiction, any doubt as to whether a case belongs in federal or state court should be resolved in favor of state court."). Under the saving to suitors clause, 28 U.S.C. § 1333(1), "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."

III. DISCUSSION

Progressive asks the court to remand this action back to the Charleston County Court of Common Pleas. Pl.'s Mot. 1. Progressive cites Shernoff v. Morgan Marina, Inc. in support of the proposition that "plaintiff's choice to bring [an] in personam admiralty action in state court... cannot be disturbed." Id .; 2009 WL 901881, at *2 (D.N.J. Mar. 31, 2009) (citations omitted). McLendon responds that Shernoff was decided before 28 U.S.C. § 1441 was amended in 2011 and is no longer persuasive law. Def.'s Resp. 2. McLendon argues that a plain reading of the provisions of 28 U.S.C. § 1441, as amended on December 7, 2011, renders removal proper. Id.

Prior to the 2011 amendment, 28 U.S.C. 1441 read as follows:
(a) Except 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. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(a) & (b) (2002).

In 2011, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 which, in relevant part, provided:

(b) Removal based on diversity of citizenship. (1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded. (2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in ...

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