United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
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.
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. 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.
Report and Recommendation of the Magistrate Judge
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).
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).
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.
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
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 ...