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Stehney v. Ferguson

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

July 13, 2017

Michael Stehney, Jr., Plaintiff,
v.
Ronald E. Ferguson, Susan M. Ferguson and Ronald J. Ferguson, Defendants.

          ORDER

          TIMOTHY M. CAIN, UNITED STATES DISTRICT COURT JUDGE

         The plaintiff, Michael Stehney, Jr. (“Plaintiff”), filed this action against the defendants, Ronald E. Ferguson, Susan M. Ferguson and Ronald J. Ferguson (“Defendants”), alleging negligence, negligence per se, nuisance, trespass, and violation of restrictive covenants. Plaintiff filed this action in the Court of Common Pleas for Greenville County on March 25, 2013. On December 20, 2016, Defendants, proceeding pro se, filed a Notice of Removal (ECF No. 1), and the action was removed to this court. 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. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that this action be remanded to state court based upon lack of subject matter jurisdiction (ECF No. 16), Defendants' motion for sanctions (ECF No. 23), Defendants' motion for judicial notice (ECF No. 27) and Plaintiff's motion for expedited ruling (ECF No. 29). On March 24, 2017, Defendants filed objections to the Report (ECF No. 19) and Plaintiff filed a response on April 6, 2017 (ECF No. 22).

         The recommendation set forth in the Report has 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).

         I. Background/Procedural History

         Plaintiff originally filed this action in the Court of Common Pleas for Greenville County on March 25, 2013, alleging negligence, negligence per se, intentional tort, nuisance, trespass, and violation of restrictive covenants. (ECF No. 1-1). Plaintiff's complaint alleges that Defendants (Plaintiff's neighbors) caused mud to be released from Defendants' property onto Plaintiff's property causing damage. Specifically, Plaintiff alleges that silt drained from Defendants' property into Plaintiff's pond that was stocked with fish, ducks, and geese, causing the animals to die and interfering with Plaintiff's quiet enjoyment.

         On December 20, 2016, Defendants removed the action to this court. (ECF No. 1). This is Defendants' second attempt to remove the underlying state court case; Defendants first removed the case to this court on October 3, 2014. (C.A. No. 6:14-3876-GRA-KFM, ECF No. 1). See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that the most frequent use of judicial notice is in noticing the content of court records.”)[1]; Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (the court may take judicial notice of its own records); Long v. Ozmint, 558 F.Supp.2d 624, 629 (D.S.C. 2008) (“The District Court clearly had the right to take notice of its own files and it had no duty to grind the same corn a second time. Once was sufficient.”). On March 19, 2015, the district court remanded the case to the Court of Common Pleas for Greenville County due to lack of viable grounds for removal. (C.A. No. 6:14-3876-GRA-KFM, ECF Nos. 25 and 37).

         Plaintiff filed a motion to dismiss the action and remand it to state court on January 10, 2017. (ECF No. 5). Defendants filed a response on February 14, 2017. (ECF No. 14). On March 9, 2017, the magistrate judge filed a Report recommending the court remand the action. (ECF No. 16). Defendants filed objections on March 24, 2017 (ECF No. 19), and Plaintiff filed a response on April 6, 2017 (ECF No. 22). On April 20, 2017, Defendants filed a motion for sanctions. (ECF No. 23). On April 25, 2017, Plaintiff filed a response (ECF No. 24), and on May 5, 2017, Defendants filed a reply (ECF No. 26). On May 12, 2017, Defendants filed a motion for the court to take judicial notice of twenty-seven exhibits. (ECF No. 27). On June 23, 2017, Plaintiff filed a motion to expedite ruling on his motion for remand. (ECF No. 29).

         II. Discussion

         A. Removal Jurisdiction

         In his Report, the magistrate judge recommends the court remand the action to state court for the same reasons as the previous remand of the same case in Civil Action 6:14-3876-GRA- KFM. (ECF No. 16 at 3).[2] A defendant in a state court case may remove that case to a federal district court only if the action could have been originally filed in a federal district court. 28 U.S.C. § 1441. As stated previously, in his state court complaint, the plaintiff raised causes of action for: (1) negligence, negligence per se, and intentional tort; (2) nuisance; (3) trespass; and (4) violation of restrictive covenants. Id. According to the Report, while Defendants contend that resolution of the case is governed by the Federal Clean Water Act and National Flood Insurance Program Regulations, Plaintiff did not allege violations of those laws and regulations, and Defendants' belief that he should have is of no consequence because the plaintiff is master of his claim. (ECF No. 16 at 3-4); see Cruel v. Greenville, 617 F.Supp.2d 436, 438 (D.S.C. 2007). In reality, Plaintiff's complaint “alleges in part a violation of restrictive covenants, which is essentially a state breach of contract action. Negligence, nuisance, and trespass are also state law causes of action.” (C.A. No. 6:14-3876-GRA-KFM, ECF No. 25 at 3 (citations omitted)). Because both parties are citizens of South Carolina, federal diversity jurisdiction is not at issue here. The magistrate judge found that no federal jurisdiction supports the assertion of removal jurisdiction under 28 U.S.C. § 1441 and recommends that the court remand the case.

         Defendants assert four objections to the magistrate judge's Report. Defendants argue that the magistrate judge erred because: (1) defendant Ronald J. Ferguson was not properly named in or served with Plaintiff's motion to dismiss or remand; (2) the doctrine of complete preemption transformed Plaintiff's claims into claims arising under federal law; (3) indispensable parties were not added; and (4) the court has federal question jurisdiction over the claim. (ECF No. 19).

         Defendants' first objection merely restates an argument from their response to Plaintiff's motion to dismiss or remand (ECF No. 14 at 1-2) and was already addressed by the magistrate judge (ECF No. 16 at 1-2). Subject matter jurisdiction is a threshold issue.[3] Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). “Without jurisdiction the court cannot proceed at all in any cause.” Id. at 94. “[B]ecause the lack of subject matter jurisdiction may be noticed by the district court sua sponte or by any party, the court may enter a remand order sua sponte.” Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008); see also id. (“In the case where remand is based on a lack of subject matter jurisdiction, the remand order may be entered at any time, for jurisdiction goes to the very power of the court to act.”); 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). Accordingly, the adequacy of Plaintiff's motion to remand is not determinative of whether remand is appropriate.

         It is well settled that federal subject matter jurisdiction is based on the complaint at the time of removal and that the party seeking removal has the burden of establishing subject matter jurisdiction. See, e.g., Moffitt v. Residential Funding Co., LLC, 604 F.3d 156, 159 (4th Cir. 2010); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Therefore, as the magistrate judge explained, Plaintiff's claim relies exclusively on state law and no federal question jurisdiction or diversity of citizenship supports the assertion of removal jurisdiction under 28 U.S.C. § 1441. Thus, remand is warranted and Defendants' objection is without merit.

         In Defendants' second objection, Defendants argue that the magistrate judge erred because Plaintiff's state law causes of action were transformed into claims arising under federal law through the complete preemption doctrine. (ECF No. 19 at 7-11). However, complete preemption applies only in a very narrow range of cases-the Supreme Court of the United States has approved its use in only three areas, none of which apply in this case.[4]Johnson v. American Towers, LLC, 781 F.3d 693, 701 (4th Cir. 2015). Further, the Fourth Circuit recognizes a presumption against finding complete preemption. Id. In order to establish complete preemption, “the congressional intent that state law be entirely displaced must be clear in the text of the statute.” Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir. 2005). “[F]or the purposes of complete preemption, the preempting statute must provide the exclusive cause of action for claims in the area that the statute ...


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