United States District Court, D. South Carolina, Beaufort Division
Mark C. Mosley, Plaintiff,
Christine Alston, as personal representative of the Estate of Robert Alston; Davita, Inc. d/b/a DaVita Walterboro Dialysis # 3073; DVA Healthcare Renal Care, Inc.; DVA Renal Healthcare, Inc.; DaVita Healthcare Partners, Inc.; and Howard Elj, Defendants.
PATRICK MICHAEL DUFFY United States District Judge
matter is before the Court on two motions to remand under 28
U.S.C. § 1447(c): one filed by Plaintiff Mark C. Mosley
(ECF No. 8) and another filed by Defendant Christine Alston
(ECF No. 9). Mosley and Alston argue removal was improper
because, inter alia, Alston did not consent to it.
For the reasons herein, the Court grants the motions.
AND PROCEDURAL HISTORY
Alston spent the last morning of his life undergoing dialysis
at a clinic in Walterboro, South Carolina. Defendant Howard
Elj worked at the clinic, which Defendants Davita, Inc., DVA
Healthcare Renal Care, Inc.; DVA Renal Healthcare, Inc., and
DaVita Healthcare Partners, Inc. owned and operated. When Mr.
Alston's treatment ended, the DaVita defendants allowed
him to leave, and he began driving home to Hampton County. He
was in no condition to drive. Near Islandton, he lost
consciousness while driving, drifted over the center line of
state highway 63, and collided head-on into a car that Mosley
was driving. Mosley was severely and permanently injured. Mr.
Alston died. Mosley filed a negligence suit in South Carolina
state court, alleging claims against Alston, who represents
Mr. Alston's estate, and against the DaVita defendants.
Mosley faults Mr. Alston for crossing the center line, for
failing to drive safely, and for driving when he was not in a
condition to do so. He faults the DaVita defendants for
allowing him to drive after dialysis and for failing to warn
him of the dangers of doing so.
served, the DaVita defendants removed the case to this Court.
Alston, however, did not join the removal notice, and she did
not consent to removal. The DaVita defendants accounted for
that by asserting in their notice that Alston's true
alignment in this case is as a plaintiff. Alston and Mosley
filed separate motions to remand. The DaVita defendants filed
responses to each motion, and Alston filed a reply. These
matters are thus ripe for consideration.
U.S.C. § 1441(a) allows “the defendant or
defendants” named in certain types of state-court cases
to remove the case to federal district court. The
“defendant or defendants” accomplish removal by
filing a notice that contains a short and plain statement of
the grounds for removal. 28 U.S.C. § 1446(a). Courts
have construed the “defendant or defendants”
language in those statutes as requiring that all defendants
in a case join in or consent to removal. Hartford Fire
Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255,
259 (4th Cir. 2013). That requirement is called the
“rule of unanimity.” Id. Failure to
comply with the rule renders the removal defective and is
grounds to remand the case to state court. See Payne ex
rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th
Cir. 2006) (holding the failure of all defendants to join in
the removal petition is a nonjurisdictional defect in the
removal); Palmetto Automatic Sprinkler Co. v. Smith
Cooper Int'l, Inc., 995 F.Supp.2d 492, 495 (D.S.C.
2014) (“[O]rdinarily, the failure of any defendant to
consent to removal renders the removal improper and requires
neither joined nor consented to the DaVita defendants'
removal. The DaVita defendants argue, however, that
Alston's consent was unnecessary because Alston should be
realigned as a plaintiff. The Court disagrees.
potential realignment of parties is a two-step analysis:
“First, the court must determine the primary issue in
the controversy. Next, the court should align the parties
according to their positions with respect to the primary
issue.” U.S. Fid. & Guar. Co. v. A & S Mfg.
Co., 48 F.3d 131, 133 (4th Cir. 1995) (diversity issue);
see Wayne J. Griffin Elec, Inc. v. Travelers Prop. Cas.
Co. of Am., No. 1:13CV882, 2014 WL 842983, at *4-5 (M.D.
N.C. Mar. 4, 2014) (unanimity issue). The primary issue in
this case is obvious: who is liable to Mosley for her
injuries? Cf. U.S. Fid. & Guar. Co., 48 F.3d at
134 (finding district court properly identified primary issue
to be whether any, some, or all of several insurers owed
manufacturer duty to indemnify); see also Sacra v.
Jackson Hewitt, Inc., No. 1:15-16265, 2016 WL 698149, at
*5 (S.D. W.Va. Feb. 19, 2016) (“[T]he majority of
courts do not realign an alleged tortfeasor defendant in
cases where his or her liability has not been
established.”). Although Alston and the DaVita
defendants have different answers to that question, their
positions are still ultimately adverse to Mosley. Because
Mosley and Alston are therefore properly situated on opposite
sides of this case, the Court will not realign Alston.
upshot of the Court's conclusion is that the DaVita
defendants have not met their burden of showing that they
satisfied the unanimity rule. The Court finds their removal
defective and must therefore remand this matter to state
foregoing reasons, it is ORDERED that Mosley's and
Alston's motions to remand are GRANTED. This case is
hereby REMANDED to the Court of Common Pleas for Hampton
County, South Carolina.