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Breland v. Long

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

September 7, 2017

Melanie Breland, Plaintiff,
v.
Ricky Long and Miller Transport, LLC, Defendants.

          ORDER AND OPINION

         This matter is before the court pursuant to Plaintiff Melanie Breland's (“Plaintiff”) Motion to Remand this case to the Court of Common Pleas for Orangeburg County, South Carolina. (ECF No. 8.) Defendants Ricky Long and Miller Transport, LLC[1] oppose Plaintiff's motion and ask the court to retain jurisdiction. (ECF No. 13.) For the reasons set forth below, the court DENIES Plaintiff's Motion to Remand (ECF No. 8).

         I. JURISDICTION

         The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. Plaintiff is a resident and citizen of the State of South Carolina. (ECF No. 1 at 1.) Defendant Long is a resident and citizen of the State of Illinois, and Defendant Miller Transport, LLC is organized and incorporated in the State of Mississippi and has its principal place of business in the State of Mississippi. Id. The amount in controversy in this matter exceeds $75, 000.00 as Plaintiff alleges that she has incurred over $169, 000.00 in medical expenses, suffered serious personal and permanent injuries, lost wages, loss of enjoyment of life, and future medical expenses as a result of this motor vehicle accident. (ECF No. 1 at 2.)

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On October 25, 2016, Plaintiff filed a complaint for a jury trial in the Orangeburg Court of Common Pleas. (ECF No. 1-1.) This action arises out of a motor vehicle accident that occurred in Orangeburg County, South Carolina, on October 31, 2013. Id.

         On November 4, 2016, Defendant Long was served with the Summons and Complaint via the South Carolina Department of Motor Vehicles (“SC DMV”) pursuant to South Carolina's statute governing service on a non-resident motorist or motor carrier, codified in S.C. Code Ann. §§ 15-9-350 through 15-9-380. (ECF No. 8-2.)

         On January 9, 2017, Defendant Long filed a Notice of Removal to this court asserting that the court possessed jurisdiction over the matter because complete diversity of citizenship exists between the parties and the amount in controversy is met. (ECF No. 1 at 1 ¶ 2, at 2 ¶ 4.)

         On February 8, 2017, Plaintiff filed a Motion to Remand asserting that removal was untimely because Defendant Long removed the case more than thirty (30) days after the Summons and Complaint were served. (ECF No. 8-1 at 2.)

         On February 20, 2017, Defendant Long filed a Response in Opposition to Plaintiff's Motion to Remand, asserting that Plaintiff did not serve the documents according to the terms of the statutes, and as a result, the 30 day time period for removal began on the date Defendant Long “otherwise” received the Complaint. (ECF No. 13 at 2.) Defendant Long contends that he first obtained a copy of the Complaint from the Orangeburg Clerk of Court on December 15, 2016. Id. at 3. Thereafter, on December 22, 2016, Defendant Long e-mailed Plaintiff's counsel correspondence to confirm the amount in controversy. Id. Having received no response from Plaintiff, Defendant Long filed his Notice of Removal on January 9, 2017. Id.

         III. LEGAL STANDARD

         A party seeking to remove a civil lawsuit from state to federal court pursuant to 28 U.S.C. § 1446 may do so when there is diversity of citizenship between the parties. Diversity of citizenship exists “where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of different states . . . .” 28 U.S.C. § 1332(a). Moreover, “diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 427 U.S. 365, 373 (1978) (emphasis in the original); see also Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999) (“[T]he ‘complete diversity' rule clarifies that the statute authorizing diversity jurisdiction over civil actions between a citizen of a state where the suit is brought and a citizen of another state permits jurisdiction only when no party shares common citizenship with any party on the other side.”).

         Removal is governed by 28 U.S.C. § 1446(b)(1), which provides that a notice of removal “shall be filed within 30 days after the receipt by the defendant, through service or otherwise, ” of the complaint. Subsection (b)(3) provides that “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).

         IV. ANALYSIS

         The dispute in this matter is whether removal was timely. Under the provision of Section 15-9-350 or 15-9-360 of the Code of Laws of South Carolina (1976), service of process is permitted upon the Director of the Department of Motor Vehicles as an agent for nonresident motor vehicle drivers. As a result, Sections 15-9-370 and 15-9-380 control the manner of service. S.C. Code Ann. §§ 15-9-370, 15-9-380. Section 15-9-370 provides that service through the DMV “shall be sufficient . . . if notice of the service and a copy of the process are forthwith sent by certified mail . . . to the defendant and the defendant's return receipt and the plaintiff's affidavit of compliance are appended to and filed with the summons and complaint.” S.C. Code Ann. § 15-9-370. Moreover, if the certified mail delivery fails, the notice and copy of the pleadings “shall be sent by ...


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