United States District Court, D. South Carolina, Columbia Division
Richard Nix, as Personal Representative of the Estate of Dale Gutierrez, Plaintiff/Counterclaim Defendant,
Walker Morgan, LLC; William P. Walker, Jr.; and S. Kirkpatrick Morgan, Jr., Defendants/Counterclaim Plaintiffs,
Kevin Johnston, Counterclaim Defendant.
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
1, 2016, Plaintiff/Counterclaim Defendant Richard Nix, as
Personal Representative of the Estate of Dale Gutierrez
(“Plaintiff”), filed the within action in the
Court of Common Pleas for Lexington County, South Carolina.
Plaintiff alleges causes of action for professional
negligence, breach of fiduciary duty, and violation of the
South Carolina Unfair Trade Practices Act, SC Code Ann.
§ 39-5-10 et seq. On August 2, 2016,
Defendants/Counterclaim Plaintiffs (“Defendants”)
Walker Morgan, LLC; William Walker, Jr.; and S. Kirkpatrick
Morgan, Jr. filed an answer and counterclaims for civil
conspiracy, negligence per se, and common law barratry. On or
about August 12, 2016, Plaintiff filed a reply to
Defendants' counterclaims, and asserted two
counter-counterclaims against Defendants: a cause of action
for abuse of process and a cause of action asserting a
violation of 28 U.S.C. § 1927 (providing for the
recovery of fees, costs, and expenses incurred as a result of
defending vexatious litigation).
removed the action to this court on September 9, 2016.
Defendants assert that a federal question is presented based
upon Plaintiff's counter-counterclaim purporting to
allege a cause of action under § 1927. Defendants filed
a reply to Plaintiff's counter-counterclaim also on
September 9, 2016.
matter now is before the court on motion to remand filed by
Plaintiff on October 7, 2016. Defendants filed a response in
opposition to Plaintiff's motion to remand on October 24,
2016, to which Plaintiff filed a reply on October 31, 2016.
presence or absence of federal-question jurisdiction is
governed by the “well-pleaded complaint rule, ”
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint. Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing
Gully v. First Nat'l Bank, 299 U.S. 109, 112-13
(1936)). The rule makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law. Id.
contend that Plaintiff's counter-counterclaim asserting a
violation of § 1927 has the legal effect of an amendment
to the complaint asserting a federal cause of action. Thus,
according to Defendants, Plaintiff's § 1927 cause of
action is presented on the face of Plaintiff's complaint
and constitutes a proper ground for removal.
Federal Rules of Civil Procedure do not recognize
counterclaims to counterclaims. Under Fed.R.Civ.P. 7(a),
(a) Pleadings. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a ...