United States District Court, D. South Carolina, Florence Division
Willow Run Condominium Homeowners Association, Inc., Plaintiff,
UNC 23, LLC, Defendant.
Run Condominium Homeowners Association Inc., Plaintiff,
represented by Luther O. McCutchen, III, McCutchen Mumford
Vaught O'Dea and Geddie &
23, LLC, Defendant, Pro Se.
REPORT AND RECOMMENDATION
E. ROGERS, III, Magistrate Judge.
UNC 23, LLC, attempted to proceed pro se through
Jesse Yates, a non-party and non-attorney, to remove the
instant action from the Horry County Court of Common Pleas to
this Court. The Plaintiff, a homeowners association, brought
this action in state court concerning state law claims of
foreclosure of an association lien and money judgment for
past due assessments. This matter is before the Court
pursuant to 28 U.S.C. 636(b) and Local Civil Rule
73.02(B)(2)(e) (D.S.C.). For the reasons that follow, this
matter should be remanded to state court, as the Court is
undersigned entered an Order on August 9, 2016, giving
Defendant 30 days to retain counsel. After further review,
based on the logic and reasoning set forth in that Order,
this case was not properly removed to this Court and this
Court lacks jurisdiction.
removal of civil actions to federal court is governed by 28
U.S.C. Â§ 1441. Under Â§ 1441(a)'s plain language only a
named defendant may remove a civil action brought in state
court. The Fourth Circuit Court of Appeals has stated in
regard to standing and jurisdiction:
It is axiomatic in our legal system, however, that standing
concerns must be brought out by a court at any time during a
proceeding, for without proper standing there would exist no
case or controversy for a court to decide. Thus, standing is
not waivable by the parties. See, e.g., Juidice v.
Vail, 430 U.S. 327, 331 (1977) ("Although raised by
neither of the parties, we are first obliged to examine the
standing of appellees, as a matter of the case-or-controversy
requirement associated with Art. III"); Boeing Co.
v. Van Gemert, 444 U.S. 472, 488 n. 4 (1980) (Rehnquist,
J., dissenting) ("Although respondents have not
challenged Boeing's standing, we are obligated to
consider the issue sua sponte, if necessary");
Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1223
(4th Cir.1980) ("whether raised or not, jurisdictional
standing is an issue to be considered sua sponte by
Allstate Ins. Co. v. Adkins, 932 F.2d 963 (4th Cir.
Yates filed the Notice of Removal in this case. Mr. Yates is
not a defendant within the meaning of Â§ 1441(a); Jesse Yates
is not an attorney representing the LLC defendant. A
non-party lacks standing to invoke a district court's
removal jurisdiction under Â§ 1441 and 28 U.S.C. Â§ 1446.
Therefore, Mr. Yates has no standing to remove this action.
Thus, this Court lacks jurisdiction and this matter should be
remanded to state court.
the Court lacks subject matter jurisdiction in this matter.
Accordingly, for the foregoing reasons, it is recommended
that this matter be remanded to the Horry County Court of
of Right to File Objections to Report and Recommendation
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. "[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.'" Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. Â§ 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal