United States District Court, D. South Carolina, Greenville Division
Sabrina D. Davis, Plaintiff,
Bankers Life and Casualty Company, Defendant.
Timothy M. Cain United States District Court Judge.
Sabina D. Davis (“Davis”), proceeding pro
se, filed this action against Defendant Bankers Life and
Casualty Company (“Bankers Life”) in the
Greenville County Court of Common Pleas, alleging that
Bankers Life engaged in bad faith and “post-claim
underwriting” in denying her claims for benefits from a
life insurance policy. On September 13, 2016, Bankers Life
timely removed the case to this court. (ECF No. 1). In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Because the magistrate judge
received various documents outside the pleadings, he treated
the motion to dismiss as a motion for summary judgment. (ECF
No. 18 at 2-3). Before the court is the magistrate
judge's Report and Recommendation (“Report”),
recommending that the court grant Bankers Life's motion
for summary judgment. (ECF No. 18). The parties were advised
of their right to file objections to the Report. (ECF No. 18
at 5). On March 14, 2017, Davis filed objections. (ECF No.
21). Bankers Life filed a response on March 29, 2017 (ECF No.
27), to which Davis filed a reply on April 6, 2017 (ECF No.
28). On June 16, 2017, Davis filed an emergency motion to
remand. (ECF No. 32).
recommendations set forth in the Report have no presumptive
weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The court is
charged with making a de novo determination of those portions
of the Reports to which specific objection is made, and the
court may accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge, or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Motion to Remand
record makes clear that this action was removed to this court
pursuant to 28 U.S.C. §§ 1441(a) & 1332(a).
“When a plaintiff files in state court a civil action
over which the federal district courts would have original
jurisdiction based on diversity of citizenship, the defendant
. . . may remove the action to federal court, provided that
no defendant is a citizen of the State in which such action
is brought.” Caterpillar Inc. v. Lewis, 519
U.S. 61, 68 (1996) (internal citations and quotations
omitted). The magistrate judge found that Bankers Life's
removal of this action was timely. (ECF No. 18 at 1).
argues that because an agent of Bankers Life, Ursula
Schneider-Wewer, is a resident of Spartanburg, South
Carolina, diversity is destroyed for the purpose of this
court's jurisdiction. (ECF No. 32 at 2). However, a
corporation's citizenship is based on its state of
incorporation and principal place of business. 28 U.S.C.
§ 1332(c)(1). The Supreme Court defines principal place
of business to mean “the place where the
corporation's high level officers direct, control, and
coordinate the corporation's activities.” Hertz
Corp. v. Friend, 559 U.S. 77, 80 (2010). According to
Bankers Life's notice of removal (ECF No. 1 at 5)
supported by an affidavit of Karl Kindig (ECF No. 1-2),
Bankers Life is an Illinois corporation with its principal
place of business in Illinois. Davis has not alleged that
South Carolina is Bankers Life's principal place of
business or that South Carolina is where the corporation
maintains its “nerve center.” Hertz, 559
U.S. at 81, 93. Further, Davis' argument that remand is
warranted because South Carolina law is the basis of this
case fails because this case was removed for diversity and
this court must apply South Carolina law. See 28
U.S.C. §§ 1441 & 1332; Interstate Fire
& Cas. Co. v. Dimensions Assurance Ltd., 843 F.3d
133, 136 (4th Cir. 2016) (citing Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (explaining
that a federal court sitting in diversity jurisdiction must
apply the choice of law principles of the forum state)).
Therefore, Davis fails to demonstrate that this court lacks
subject matter jurisdiction and her motion to remand is
denied. See 28 U.S.C. § 1447(c).
Motion to Strike
April 6, 2017, Davis filed a reply to Bankers Life's
response to her objections. (ECF No. 28). On April 14, 2017,
Bankers Life filed a motion to strike Davis' reply,
asserting that when replies are allowed they cannot contain
new issues, and that Davis' reply centers around
previously unpled allegations. (ECF No. 29). Replies are
governed by Local Rule 7.07, which states that,
“Replies to responses are discouraged. However, a party
desiring to reply to maters raised initially in a response to
a motion or in accompanying supporting documents shall file
the reply within seven (7) days after service of the
response, unless otherwise ordered by the court.” Local
Rule 7.07, D.S.C.
Davis' pleadings liberally, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), the court will consider
Davis' reply to the extent that it does not go beyond the
scope of issues addressed or raised in Bankers Life's
response. Accordingly, Bankers Life's motion to strike is
Motion for Summary Judgment
magistrate judge recommended that the court dismiss
Davis' claim because she filed her claim outside of the
statutory limitations period. (ECF No. 18 at 4). In South
Carolina, claims for breach of insurance contract and
insurance bad faith are subject to a three-year statute of
limitations, Liberty Mut. Fire Ins. Co. v. J.T. Walker
Indus., Inc., No. 2:08-2043-MBS, 2010 WL 1345287 (D.S.C.
Mar. 30, 2010) (citing S.C. Code Ann. § 15-3-530), which
begins to run when the underlying cause of action reasonably
ought to have been discovered, Martin v. Companion
Healthcare Corp., 593 S.E.2d 624, 627 (S.C. Ct. App.
2004). According to Davis' complaint, Bankers Life denied
her claim for benefits on July 12, 2013. (ECF No. 1-1 at
7). Thus, because it is undisputed that Davis did not file
her case in state court until August 10, 2016, the Report
recommends that this case is outside of the limitations
period and untimely. Despite Davis' argument that she did
not actually discover her claim until November or December
2013 (after she and her attorney unsuccessfully attempted to
convince Bankers Life to reverse its decision) the magistrate
judge found that the limitations period began when Bankers
Life denied the claim-July 12, 2013 according to Davis'
own admission. (ECF No. 18 at 4); see e.g., Jeri M. Suber
Credit Shelter Trust v. State Auto Prop. And Cas. Ins.
Co., No. 3:08-3387, 2009 WL 4730630, at *4 n.10 (D.S.C.
Dec. 4, 2009) (noting that “the statute of limitations
for a bad faith action against [insurer] for denial of
additional insurance benefits would begin running when
[insurer] denied coverage”).
objection, Davis argues that the magistrate judge incorrectly
calculated the statute of limitations. Her argument is based
on language in the July 15, 2013 letter stating:
If you believe this claim was denied in error, please submit
written comments, documents, or records not already provided
to our company for further review. . . . [Bankers Life] will
consider your appeal and will contact you upon conclusion of
(ECF Nos. 14-1 at 22 and 21 at 2). Davis alleges that the cause
of action did not accrue until December 2, 2013, when Bankers
Life declined to change its position. (ECF No. 21 at 2). She
argues that Bankers Life did not reach its final decision
until December 2, 2013, due to the “appeal”
process and that she believed that the additional ...