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Bank of America NA v. Koola

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

December 28, 2016

Bank of America NA, Plaintiff,
v.
Johnson D. Koola, Defendant.

          ORDER

          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on the Report and Recommendation of the Magistrate Judge, recommending that Plaintiffs motion to remand be granted. For the reasons set forth below, the Court adopts the Report and Recommendation and remands this matter to the South Carolina Court of Appeals.

         I. Background

         Plaintiff Bank of America, N.A. ("BOA") originally filed this mortgage foreclosure action in July 2010 in the South Carolina Court of Common Pleas, Charleston County. An amended complaint was filed in state court in September 2010. Defendant Johnson D. Koola filed an amended answer and counterclaims against BOA on March 24, 2011. The Master-in-Equity for Charleston County granted BOA's motion for summary judgment regarding Defendant's counterclaims on April 25, 2014, and Defendant's motion to reconsider was denied in May 2014. Defendant appealed to the South Carolina Court of Appeals, which affirmed on February 17, 2016. Defendant's petition for rehearing was denied on April 21, 2016. On May 20, 2016, Defendant, proceeding pro se, removed the action to this Court. On June 15, 2016, BOA moved to remand. BOA's motion was originally docketed as an "answer." BOA filed a motion to correct the docket entry on July 18, 2016.[1] On July 29, 2016, the Court granted BOA's motion to correct and, on that same day, the Magistrate Judge issued a Report and Recommendation recommending that this case be remanded to state court. The matter was recommitted to allow Defendant an opportunity to respond to the motion to remand. On October 19, 2016, the Magistrate Judge issued the present Report and Recommendation, recommending this case be remanded to state court. Defendant filed objections on November 7, 2016.

         II, Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

         When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[Attempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).

         B. Removal

         "Federal courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests firmly on the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal removal jurisdiction exists if the action is one "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a), The removing party has the burden of establishing that removal jurisdiction is proper. In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006). The removal statute is strictly construed against removal jurisdiction, and any doubts as to jurisdiction weigh in favor of remand. Id.

         III. Discussion

         Defendant's notice of removal asserts three grounds for removal: (1) federal question jurisdiction, (2) diversity jurisdiction, and (3) jurisdiction under 28 U.S.C. §§ 1334 and 1452, which permit removal of cases related to bankruptcy proceedings. (Dkt. No. 1.) BOA's motion to remand asserts that the removal is untimely and that this action is not related to any bankruptcy proceeding. (Dkt. No. 18.) The Court agrees with the Magistrate Judge's recommendation that BOA's motion to remand should be granted, because removal was untimely and because this action is unrelated to bankruptcy proceedings.

         Title 28 U.S.C. § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been ...

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