United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
matter is before the court pursuant to Plaintiff Sandra
Sims' (“Plaintiff) Motion to Remand the instant
case to the Court of Common Pleas in Orangeburg, South
Carolina. (ECF No. 5.) Defendants Ryder Truck Rental, Inc.,
McLane Company, Inc., Meadowbrook Meat Company,
Henry's Social, and Sherman Hardy (collectively
“Defendants”), oppose Plaintiffs Motion to Remand
and request that the court retain jurisdiction. (ECF No. 7.)
For the reasons set forth below, the court
GRANTS Plaintiffs Motion to Remand (ECF No.
FACTUAL AND PROCEDURAL BACKGROUND
3, 2015, Plaintiff filed a complaint for a jury trial in the
Court of Common Pleas in Orangeburg County, South Carolina.
(ECF No. 1-1 at 5.) Plaintiff alleges that she was injured
while unloading items from a delivery truck. (ECF No. 1-1 at
6:7.) For jurisdictional purposes, Plaintiff asserts that she
is a resident of the State of South Carolina. (ECF No. 1-1 at
5:1.) Plaintiff did not specify the amount of damages in the
Complaint (ECF No. 1-1 at 5), but stipulated that
“pursuant to Section 19-1-150 of the Code of Laws of
the State of South Carolina, she will continue to incur
damages into the future all to the Plaintiff's damages in
an amount to be determined by the trier of fact.” (ECF
No. 1-1 at 9:18.)
April 1, 2016, Defendants filed a Notice of Removal (ECF No.
1) asserting that the court possessed jurisdiction over the
matter because complete diversity of citizenship exists
between the parties and the amount in controversy is met.
(ECF No. 1 at 4 ¶ 6.)
April 15, 2016, Plaintiff filed a Notice of Motion and Motion
to Remand arguing that (1) there is not complete diversity of
citizenship among the parties because Defendant Henry's
Social (“Henry's”) is a resident or agent of
the State of South Carolina; and (2) remand is proper because
removal jurisdiction did not exist when Defendants'
Notice of Removal was filed. (ECF No. 5 (citing U.S.C.
§§ 1332(a)(1), 1441(a)).)
2, 2016, Defendants filed a Response in Opposition to
Plaintiff's Motion to Remand (ECF No. 7) arguing that
subject matter jurisdiction does exist because: (1) Plaintiff
failed to properly serve Defendant Henry's; (2) Plaintiff
has no intention to obtain joint judgment against Defendant
Henry's; and (3) Plaintiff has no evidentiary basis to
support a premises liability claim against Defendant
Henry's. (ECF No. 7 at 3-5.)
courts are courts of limited jurisdiction. A defendant is
permitted to remove a case to federal court if the court
would have had original jurisdiction over the matter. 28
U.S.C. § 1441(a) (2012). A federal district court has
“original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between - (1)
citizens of different States; . . . .” 28 U.S.C. §
1332(a) (2012). In cases in which the district court's
jurisdiction is based on diversity of citizenship, the party
invoking federal jurisdiction has the burden of proving the
jurisdictional requirements for diversity jurisdiction.
See Strawn v. AT & T Mobility LLC, 530 F.3d 293,
298 (4th Cir. 2008) (holding that in removing case based on
diversity jurisdiction, party invoking federal jurisdiction
must allege same in notice of removal and, when challenged,
demonstrate basis for jurisdiction).
determining the amount in controversy for federal diversity
jurisdiction, the court must examine the complaint at the
time of removal. Thompson v. Victoria Fire & Casualty
Co., 32 F.Supp.2d 847, 848 (D.S.C. 1999) (citing St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
292 (1938)). Generally, “the sum claimed by a plaintiff
in her complaint determines the jurisdictional amount, and a
plaintiff may plead less than the jurisdictional amount to
avoid federal jurisdiction.” Phillips v. Whirlpool
Corp., 351 F.Supp.2d 458, 461 (D.S.C. 2005) (citing,
e.g., St. Paul Mercury Indem. Co., 303 U.S. at 294
(“If [the plaintiff] does not desire to try his case in
the federal court he may resort to the expedient of suing for
less than the jurisdictional amount, and though he would be
justly entitled to more, the defendant cannot
remove.”)) (internal citations omitted). However, where
a complaint includes a request for nonmonetary relief or a
request for a money judgment in a state that permits recovery
in excess of the amount demanded, the court can look to the
notice of removal to determine the amount in controversy. 28
U.S.C. § 1446(c)(2)(A) (2012). If the court finds by a
preponderance of the evidence that the amount in controversy
exceeds the amount specified in section 1332(a), then removal
is proper. 28 U.S.C. § 1446(c)(2)(B).
section 1332 requires complete diversity between all parties.
Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806).
Complete diversity requires that “no party shares
common citizenship with any party on the other side.”
Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.
1999). 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. See Auto Ins. Agency, Inc. v. Interstate Agency,
Inc., 525 F.Supp. 1104, 1106 (D.S.C. 1981) (citations
dispute in this matter is whether complete diversity exists
between the parties pursuant to 28 U.S.C. § 1332.
Defendants assert that the district court has original
jurisdiction because Defendant Henry's - a company
incorporated in Orangeburg, South Carolina - was not
properly served with process and that Plaintiff fraudulently
joined Defendant Henry's to defeat diversity. (ECF No. 7
at 3.) Alternatively, Plaintiff claims that Defendant
Henry's was properly served because a Registered Agent
signed the service. (ECF No. 5 at 6.) Moreover, Plaintiff
claims that removal is improper because there is a
“possibility” that a cause of action might be
established against Defendant Henry's. (ECF No. 5 at 8.)
Fourth Circuit Court of Appeals has stated that showing
fraudulent joinder requires that “the removing party
must demonstrate either (1) outright fraud in the plaintiffs
pleading of jurisdictional facts or (2) that there is no
possibility that the plaintiff would be able to establish a
cause of action against the in-state defendant in the state
court.” Hartley v. CSX Transp., Inc., 187 F.3d
422, 424 (4th Cir. 1999). Defendants argue that fraudulent
joinder is present in the instant case because Plaintiff has
taken no action to enter default against Defendant
Henry's. (ECF No. 7 at 5.) However, the court is not
convinced that this reason demonstrates outright fraud on the
part of Plaintiff. Thus, the court must only determine
whether Plaintiff has any possibility of recovery against
Defendants “bear a heavy burden - it must show that the
plaintiff cannot establish a claim even after resolving all
issues of law and fact in the plaintiffs favor.
Hartley, 187 F.3d at 424 (The Fourth Circuit also
indicated that “[t]his standard is even more favorable
to the ...