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Borha v. Sumter

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

April 18, 2018

Ehidiamhe Borha, Plaintiffs,
Sharanda Sumter; Smanthia Jones; and, LLC, Defendants.


          Shiva V. Hodges United States Magistrate Judge.

         Ehidiamhe Borha (“Plaintiff”) filed this action in the Court of Common Pleas for Orangeburg County against Sharanda Sumter, Smanthia Jones, and, LLC (“Amazon”) (collectively “Defendants”). Defendants removed the case to this court on March 6, 2018, on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1331. [ECF No. 1]. This matter comes before the court on Plaintiff's motion to remand. [ECF No. 5]. The motion having been briefed [ECF No. 7], it is ripe for disposition.

         This matter is before the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). For the following reasons, the undersigned recommends the district judge grant Plaintiff's motion to remand.

         I. Factual and Procedural Background

         On January 9, 2017, Plaintiff filed a summons and complaint asserting state law claims against Defendants that was assigned Case No. 2017-CP-38-00031 (“Borha I”). [ECF No. 1-1]. Plaintiff served Defendants on February 6, 2017.

         On June 6, 2017, Plaintiff filed a second complaint against Amazon, also in the Orangeburg County Court of Common Pleas that was assigned Case No. 2017-CP-38-00750 (“Borha II”). [ECF No. 1-18]. Borha II asserted federal employment discrimination claims. Id. Counsel for Amazon accepted service of the Borha II complaint on June 15, 2017. On July 11, 2017, Defendant Amazon filed in Borha II a Motion to Dismiss or, in the alternative, to consolidate Borha II with Borha I. [ECF No. 1-20].

         On February 7, 2018, the state court heard arguments on outstanding motions in both Borha I and Borha II, including arguments on Defendants' motion to consolidate Borha II with Borha I. On February 27, 2018, the state court issued an order granting Defendants' motion to consolidate (“Consolidation Order”) and ordered that the case number and caption in Borha II no longer be used. [ECF No. 1-27]. Defendants removed the consolidated action to this court on March 6, 2018. [ECF No. 1]. Defendants argue that removal is proper because they removed the case within 30 days of receipt of the Consolidation Order.

         II. Discussion

         A. Magistrate Judge's Authority to Remand

         The motion to remand has been referred to the undersigned for disposition pursuant to 28 U.S.C. § 636. A motion to remand does not explicitly fall within any of the dispositive motions set forth in 28 U.S.C. § 636. This omission has led to a split of authority as to whether a United States Magistrate Judge has the authority to remand a matter to state court. While some courts have held that remand motions are nondispositive and orders of remand can be issued by a Magistrate Judge in a non-consent case, the law in the Fourth Circuit remains unclear whether an order or a report and recommendation should be entered. See, e.g., Jonas v. Unisun Ins. Co., No. 00-1217, 2000 WL 1350648, *1 (4th Cir. Sept. 20, 2000) (noting that the Fourth Circuit “has not addressed whether a magistrate judge may issue an order of remand (as opposed to issuing a report and recommendation for the district court's review)”). At least one district court in this district has addressed this issue in a published opinion and held that a Magistrate Judge did not have such authority. See Long v. Lockheed Missiles & Space Co., Inc., 783 F.Supp. 249, 250 (D.S.C. 1992) (“[A] remand order is the equivalent of a dismissal. The Magistrate's Order thus sought to effect an ‘involuntary dismissal' of the action.”) (quoting Giangola v. Walt Disney World Co., 753 F.Supp. 148, 152 (D.N.J. 1990)); see also Mortg. Elec. Registration Sys., Inc. v. Hunt, 6:07-1763-HMH (D.S.C. July 30, 2007) (unpublished opinion collecting cases and finding report and recommendation appropriate when considering motion to remand).

         Although the United States Supreme Court has not addressed the issue directly, it has suggested that a remand motion is functionally indistinguishable from a dispositive motion listed in 28 U.S.C. § 636(b)(1)(A). See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714 (1996) (“No less than an order staying a federal court action pending adjudication of the dispute in state court, [an order of remand] puts the litigants in this case effectively out of court, and its effect is precisely to surrender jurisdiction of a federal suit to a state court.”) (internal quotation and citation omitted). The federal circuit courts addressing this matter have determined in published opinions that remand motions are dispositive. See Williams v. Beemiller, Inc., 527 F.3d 259, 264-66 (2d Cir. 2008); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 514-17 (6th Cir. 2001); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994-97 (10th Cir. 2000); and In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998).

         The practical impact on the parties of this seemingly-academic dispute is the applicable standard of review in an appeal of the Magistrate Judge's decision on the motion to remand. If the motion to remand is considered nondispositive, the more deferential standard of “clearly erroneous or contrary to law” found in 28 U.S.C. § 636(b)(1)(A) applies to an appeal of the Magistrate Judge's order of remand. If the motion to remand is considered dispositive, the Magistrate Judge should enter a report and recommendation under 28 U.S.C. § 636(b)(1)(B), pursuant to which objections are considered on a de novo standard of review under Fed.R.Civ.P. 72.

         In light of the unsettled state of the law within this district as to whether motions to remand are considered dispositive, out of an abundance of caution, a report and recommendation, instead of an order, is being entered. This route preserves the prerogative of the District Judge to whom this case is assigned, as well as any potentially aggrieved ...

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