United States District Court, D. South Carolina, Greenville Division
John D. Hatcher, Rachel Shaluly, James F. Gilbert, Molly A. Miller, and Michael Stehney, individually and as members of the Architectural Committee of Mill Creek Estates, Plaintiffs,
Ron Ferguson, Defendant.
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE
This matter comes before the court for review of the United States Magistrate Judge’s Report and Recommendation (“Report”) made in accordance with 28 U.S.C. § 636(b)(1)(B), and filed on January 5, 2016. (ECF No. 19).
The plaintiffs originally filed this action against Ron Ferguson, a/k/a Ronald E. Ferguson (“defendant”), on April 1, 2013, in the Court of Common Pleas for Greenville County, alleging failure to comply with restrictive covenants. This is the third removal of Case No. 2013-CP-23-1810 by the defendant, and the court will briefly explain the procedural history of each removal action.
On September 30, 2014, the defendant removed this action to federal court pursuant to 28 U.S.C. § 1441, arguing inter alia, that the district court has federal question jurisdiction because state court mandated mediation would violate his constitutional rights. See Hatcher v. Ferguson, No. 6:14-03280, 2015 WL 1268175, at *1-2 (D.S.C. March 19, 2015). The plaintiffs filed a motion to remand on November 17, 2014. Id. The magistrate judge issued a report and recommendation on December 12, 2014, recommending the district court grant the plaintiffs’ motion to remand to state court because under the well-pleaded complaint rule, a federal law defense cannot be a basis for federal question jurisdiction. Id. Defendant filed objections to the report on January 5, 2015. Id. On March 19, 2015, the district court adopted the magistrate judge’s report and recommendation, and remanded the case to state court for lack of subject matter jurisdiction. Id. at 2.
On May 20, 2015, the defendant removed this action for the second time to federal court pursuant to 28 U.S.C. § 1441, raising the same argument as in his first removal attempt. See Hatcher v. Ferguson, No. 6:15-2080, 2015 WL 4506978, at *1 (D.S.C. July 23, 2015). The plaintiffs filed a motion to remand to state court on May 26, 2015. Id. The magistrate judge issued a report and recommendation on June 16, 2015, recommending the district court grant the plaintiffs’ motion to remand to state court for the same reasons the preceding removal attempt was remanded. Id. Defendant filed objections to the report on June 29, 2015, and the plaintiffs filed a reply to those objections on July 13, 2015. Id. On July 23, 2015, the court adopted the magistrate judge’s report and recommendation, and remanded the case to state court for lack of subject matter jurisdiction. Id. at 2.
On December 22, 2015, the defendant, Susan M. Ferguson, and Ronald J. Ferguson(collectively “defendants”) filed a third notice of removal in this case, which is currently pending before the court. (ECF No. 1). In this removal notice, the defendants argue, for the first time, that removal is proper on the basis of diversity jurisdiction. (Id.) On December 29, 2015, the plaintiffs filed a motion to remand to state court arguing that the court lacks subject matter jurisdiction. Plaintiffs also aver that since this case was filed in 2013, it “has not been able to move because of Defendants’ procedural abuse of the judicial system including three removals to Federal Court.” (ECF No. 11). For that reason, the plaintiffs seek an order from the court prohibiting future attempts to remove this case. (Id.) On January 4, 2016, the defendants filed a response in opposition to the motion to remand. (ECF No. 16).
The magistrate judge issued his Report on January 5, 2016, recommending the court grant the plaintiffs’ motion to remand because the defendants removal is untimely, and that the court prohibit future removals in this case. (ECF No. 19). The defendants filed objections to the Report on January 19, 2016, and the plaintiffs filed a reply to those objections on January 29, 2016. (ECF Nos. 26 & 29). On February 1, 2016, the defendants filed an additional attachment to their objections. (ECF No. 30). Accordingly, this case is now ripe for review.
The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270- 71 (1976). In making that determination, the court is charged with conducting a de novo review of those portions of the Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Then, the court may accept, reject, or modify the Report or recommit the matter to the magistrate judge. See id.
In addition, the defendant is proceeding pro se. A pleading filed pro se is “to be liberally construed, ” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). However, a district court may not construct the plaintiff's legal arguments for him and is not required to recognize “obscure or extravagant claims defying the most concerted efforts to unravel them.” Weller v. Dep't of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (citation omitted). “Only those questions which are squarely presented to a court may properly be addressed.” Id.
Finally, under 28 U.S.C. § 1441, a case filed in state court may be removed to federal court if it is an action “of which the district courts of the United States have original jurisdiction.” Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75, 000, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a). The burden of demonstrating jurisdiction resides with “the party seeking removal.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (citing Mulcahey v. Columbia Organic Chems., Co., 29 F.3d 148, 151 (4th Cir. 1994)). The court is obliged to construe removal jurisdiction strictly because of the “significant federalism concerns” implicated. Id. Therefore, “[i]f federal jurisdiction is doubtful, a remand [to state court] is necessary.” Id.
In his Report, the magistrate judge recommends remand to state court under 28 U.S.C. § 1446(b)(1) because a notice of removal must be filed by a defendant within thirty days after the complaint in state court is served or within thirty days after the case becomes removable. (ECF No. 19 at 3-4). The defendants filed several objections to the Report. Having reviewed the defendants’ objections, the court finds that many of the objections are unrelated to the dispositive portions of the Report. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (explaining that de novo review is unnecessary in situations when a party makes general and conclusory objections that do not direct the court ...