United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
matter is before the court pursuant to Plaintiff Lonnie
Hosey's Motion to Remand (ECF No. 38). Defendant Quicken
Loans, Inc. filed a response in opposition (ECF No. 40). For
the reasons set forth below, the court
DENIES Plaintiff's Motion to Remand (ECF
RELEVANT BACKGROUND OF PENDING MOTION
filed this action seeking compensation based on
Defendant's alleged violation of the South Carolina
Attorney Preference Statute (“SCAPS”), SC Code
Ann. § 37-10-102 (2012), in connection with his
application for a mortgage loan from Defendant. (See
ECF No. 12-3.) For this violation, Plaintiff requested that
the court assess the maximum statutory penalty of $7, 500.00.
(Id.) Plaintiff also brought a claim under S.C. Code
Ann. § 37-10-105(C) (2012), alleging that Defendant was
guilty of unconscionable conduct in the closing of a mortgage
loan based on the same alleged conduct by Defendant,
i.e., Defendant's depriving Plaintiff of a
meaningful choice as to the attorney to represent him in the
transaction. (Id.) In connection with this claim,
Plaintiff requested that the court grant the relief provided
by S.C. Code Ann. § 37-10-105(C)(4) (2012).
(Id.) In his state court Complaint, Plaintiff
stipulated that he does not seek to recover more than $75,
000.00 in this action for Defendant's alleged
unauthorized practice of law (“UPL”).
(See ECF No. 12-3 at 4, 7.)
August 4, 2017, Defendant filed a Notice of Removal. (ECF No.
1.) On August 24, 2017, Plaintiff filed his first Motion to
Remand. (ECF No. 12.) In denying Plaintiff's first Motion
to Remand, the court found that Plaintiff's recovery
under his claim for unconscionability could amount to more
than $75, 000.00, given that the non-monetary relief
permitted by § 37-10-105(C)(4) (2012) includes the
possibility of finding the entire agreement unenforceable.
(ECF No. 24.) Because such a finding would render Defendant
unable to foreclose on the property or collect the
outstanding balance, such a relief could cost Defendant $212,
232.12, a loss substantially in excess of the jurisdictional
minimum amount in controversy. (Id. at 6-8.)
after denying Plaintiff's Motion to Remand, the court
granted in part and denied in part Defendant's Motion to
Dismiss Plaintiff's Complaint. (ECF No. 29.)
Specifically, the court denied dismissal of Plaintiff's
SCAPS claim under S.C. Code Ann. § 37-10-102 (2012).
(Id. at 6-8.) The maximum statutory penalty for a
violation of this section is $7, 500.00. See S.C.
Code Ann. § 37-10-105(A) (2012). The court, however,
granted Defendant's Motion to Dismiss Plaintiff's
unconscionability claim pursuant to S.C. Code Ann. §
37-10-105(C) (2012), for which a possible remedy was finding
the entire agreement unenforceable. (Id. at 8-11.)
Plaintiff's present Motion to Remand, he claims that what
remains is only his SCAPS claim for which the maximum damages
are $7, 500.00. (ECF No. 38.) Accordingly, Plaintiff asserts
that the jurisdictional minimum amount in controversy of $75,
000.00 is not satisfied in this case, and the court should
remand the case to the South Carolina state court.
(Id.) In response, Defendant maintains that (1)
Plaintiff still desires to bar Defendant from foreclosing on
the property, which places more than $75, 000.00 at risk for
Defendant; (2) even if the amount in controversy has been
reduced, the court should still retain supplemental
jurisdiction over Plaintiff's remaining claims; and (3)
Defendant should be awarded its costs and attorney's fees
for defending Plaintiff's second Motion to Remand. (ECF
No. 40.) Plaintiff replied, essentially restating his
position that his Motion to Remand “must” be
granted because subject matter jurisdiction does not exist.
(ECF No. 43.)
courts are courts of limited jurisdiction. A defendant is
permitted to remove a case to federal court if the court
would have had original jurisdiction over the matter. 28
U.S.C. § 1441(a). A federal district court has
“original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,
000.00, exclusive of interest and costs, and is between - (1)
citizens of different States; . . . .” 28 U.S.C. §
1332(a) (2012). In cases in which the district court's
jurisdiction is based on diversity of citizenship, the party
invoking federal jurisdiction has the burden of proving the
jurisdictional requirements for diversity jurisdiction.
See Strawn v. AT & T Mobility LLC, 530 F.3d 293,
298 (4th Cir. 2008) (holding that in removing case based on
diversity jurisdiction, party invoking federal jurisdiction
must allege diversity jurisdiction in notice of removal and,
when challenged, demonstrate basis for jurisdiction).
determining the amount in controversy for federal diversity
jurisdiction, the court must examine the complaint at the
time of removal. Thompson v. Victoria Fire & Casualty
Co., 32 F.Supp.2d 847, 848 (D.S.C. 1999) (citing St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
292 (1938)). Generally, “the sum claimed by a plaintiff
in her complaint determines the jurisdictional amount, and a
plaintiff may plead less than the jurisdictional amount to
avoid federal jurisdiction.” Phillips v. Whirlpool
Corp., 351 F.Supp.2d 458, 461 (D.S.C. 2005) (citing,
e.g., St. Paul Mercury Indem. Co., 303 U.S.
at 294 (“If [the plaintiff] does not desire to try his
case in the federal court he may resort to the expedient of
suing for less than the jurisdictional amount, and though he
would be justly entitled to more, the defendant cannot
remove.”)) (internal citations omitted). However, where
a complaint includes a request for non-monetary relief or a
request for a money judgment in a state that permits recovery
in excess of the amount demanded, the court can look to the
notice of removal to determine the amount in controversy. 28
U.S.C. § 1446(c)(2)(A). If the court finds by a
preponderance of the evidence that the amount in controversy
exceeds the amount specified in section 1332(a), then removal
is proper. 28 U.S.C. § 1446(c)(2)(B).
section 1332 requires complete diversity between all parties.
Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806).
Complete diversity requires that “no party shares
common citizenship with any party on the other side.”
Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.
1999). Because federal courts are forums of limited
jurisdiction, any doubt as to whether a case belongs in
federal or state court should be resolved in favor of state
court. See Auto Ins. Agency, Inc. v. Interstate Agency,
Inc., 525 F.Supp. 1104, 1106 (D.S.C. 1981) (citations
Federal Diversity Jurisdiction
is no dispute that complete diversity exists in this matter.
The parties dispute whether the amount in controversy
requirement is still met after the court's partial
dismissal of Plaintiff's Complaint. The only claim
remaining in this matter is for violation of SCAPS, SC Code
Ann. § 37-10-102 (2012). Section 37-10-105(A) discusses
what remedy may result for violations of § 37-10-102
If a creditor violates a provision of this chapter, the
debtor has a cause of action, other than in a class action,
to recover actual damages and also a right in an
action, other than in a class action, to recover from the
person violating this chapter a penalty in an amount
determined by the court of not less than one thousand five