United States District Court, D. South Carolina
Wells Fargo Bank, N.A.; Wells Fargo Equipment Finance, Inc. Plaintiffs,
C.J.B. Holding & Trust Company, LLC; Cornelius J. Beck, Jr.; Inlet Dental Center, Inc., now known as Cameron Banks, LLC; Seaside Surgical, Inc.; Andrews Dental Center, Inc.; Georgetown Dental Center of South Carolina, Inc.; South Beach Dental Center, Inc.; Southpark Centre Property Owners Association, Inc.; Myrtle Beach Farms Company, Inc.; Wachesaw Warehouses Property Owners Association, Inc.; Patterson Dental Supply, Inc., Defendants.
ORDER AND OPINION
RICHARD MARK GERGE, UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
14) recommending that this Court grant Plaintiffs' motion
to remand (Dkt. No. 4), or, in the alternative, remand this
case to state court sua sponte for lack of subject
matter jurisdiction. The Magistrate Judge has also
recommended that Defendant Beck's motions to strike (Dkt.
Nos. 6, 10, and 11) be denied. For the reasons set forth
below, this Court adopts the R. & R. as the order of the
Court. This action is remanded to state court for further
Background and Relevant Facts
pro se Defendant, Cornelius J. Beck, Jr.
(hereinafter Defendant), filed a notice of removal on June 2,
2017, which purports to remove Civil Action No.
2014-CP-22-1109 (a state court mortgage foreclosure and
replevin action) from the Court of Common Pleas of Georgetown
County, South Carolina. Plaintiffs have filed a motion to
remand the case to state court (Dkt. No. 4), arguing that
this action is not removable because Defendant's removal
is untimely, Defendant failed to secure the consent of all
defendants to the state action, removal pursuant to §
1441 is improper because there is no federal issue
jurisdiction (28 U.S.C. § 1331) and this action cannot
be removed based on diversity jurisdiction (28 U.S.C. §
1332) because a number of the Defendants (including Defendant
Beck) are citizens of South Carolina, and because removal is
not proper pursuant to 5 U.S.C. § 702. The Magistrate
Judge has thoroughly summarized the procedural history of
this case, so the Court need not do so again here. (Dkt. No.
14 at 1-3.)
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate's Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
Magistrate Judge has explained in the R. & R. that this
Court does not have federal question over the causes of
action in Plaintiffs' complaint, which asserts state law
claims for the foreclosure of mortgages, guarantees, and
replevin. (Dkt. No. 14 at 3-8.) The Magistrate Judge also
explained that Defendant Beck is precluded as a matter of law
from removing this case on the basis of diversity of
citizenship because he is a citizen of South Carolina, the
state in which this action was brought. See 28
U.S.C. § 1441(b)(2).
party has filed objections to the R. & R. In the absence
of any specific objections, "a district court need not
conduct a de novo review, but instead must only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation omitted). This Court finds that the Magistrate
Judge has correctly applied the controlling law to the facts
of this case.
reasons set forth above, this Court adopts the Magistrate
Judge's recommendation to remand this matter sua
sponte for lack of jurisdiction. Plaintiffs' motion
to remand (Dkt. No. 4) is therefore denied as moot. Defendant