United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter comes before the court on Finish Line Foundation II
(“Finish Line”), KRF XSL LLC (“KRF”),
SC Investment Holdings LLC (“SC Investment”), and
Kiawah River Farms LLC (“Kiawah River Farms”),
Kiawah River Excavating and Earthworks LLC
(“Earthworks”), and Kiawah River Stables
LLC's (“Kiawah River”) (collectively,
“defendants”) motion to stay the court's
order remanding the case pending the Fourth Circuit's
ruling on defendants' appeal of the order to remand, ECF
No. 32. For the reasons set forth below, the court denies the
of Charleston filed this suit against defendants in order to
stop their allegedly illegal development of land on Johns
Island. In early September, 2017, the Charleston County
Planning and Zoning Department (“Zoning”)
discovered that the following land development activities had
occurred on defendants' properties without permits:
“use of commercial land clearing equipment to clear and
grub land, cutting and removal of protected trees,
uncontrolled burning of vegetative waste, and resource
extraction and mining.” Compl. ¶¶ 12-14.
County of Charleston claims that these activities violated
the county's zoning requirements. Id.
¶¶ 14-16. It further claims that it informed
defendants of these violations through letters, personal
meetings, and Stop Work Orders, and that on September 28,
2017, County of Charleston was assured that all work had
ceased. Id. ¶ 19-24. County of Charleston
claims that it dismissed the violations with the
understanding that defendants would take corrective action
and apply for the necessary permits, yet land-clearing
activities continued through November 2017. Id.
¶ 25. On November 21, 2017, Zoning issued 45 Ordinance
Summons to defendants. Id. ¶ 26.
November 30, 2017, County of Charleston filed this action in
the Court of Common Pleas for the Ninth Judicial Circuit,
because it believes that defendants will not comply with the
zoning regulations despite their promise to do so.
Id. ¶ 27. It requests that the court find that
defendants have violated certain Zoning and Land Development
Regulations (“ZLDR”) and enter an injunction to
prohibit any further development, particularly the damage and
removal of trees. Id. ¶¶ 28-31.
Additionally, County of Charleston asks the court to issue an
order finding defendants in violation of ZLDR 6.4.23 and,
pursuant to S.C. Code § 48-23-205, declare that
defendants have been conducting forestry activities and are
barred from applying for building permits, site disturbances,
subdivision plans, or any other approval for development on
their properties in Charleston County for five years.
Id. ¶ 35. County of Charleston also sued Kiawah
River Farms and Kiawah River Excavating and Earthworks, LLC
(“Earthworks”), and Kiawah River Stables, LLC
(“Kiawah River Stables”) for operating in South
Carolina without a business license. Id.
removed the matter on December 28, 2017, based on diversity
jurisdiction. ECF No. 1. County of Charleston filed its
motion for abstention on January 26, 2018, ECF No. 8, which
the court granted on April 30, 2018, ECF No. 27. That same
day the clerk's office sent a certified copy of the
remand order to the clerk of the Court of Common Pleas. ECF
No. 28-30. On May 1, 2018, defendants filed their notice of
appeal of the order remanding the case to state court, ECF
No. 31, and a motion to stay remand pending the Fourth
Circuit's decision on their appeal, ECF No. 32. On May
11, 2018, County of Charleston filed its response, ECF No.
35, and on May 18, 2018, defendants filed their reply, ECF
court has the power to stay proceedings, which is
‘incidental to the power inherent in every court to
control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for
litigants.'” Doe v. Bayer Corp., 367
F.Supp.2d 904, 914 (M.D. N.C. 2005) (quoting Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936)). In exercising its
authority to grant a discretionary stay, the court
“must weigh competing interests and maintain an even
balance.” Landis, 299 U.S. at 254, 255 (citing
Kansas City S. Ry. Co. v. United States, 282 U.S.
760, 763 (1931)). Furthermore, “[t]he party seeking a
stay must justify it by clear and convincing circumstances
outweighing potential harm to the party against whom it is
operative.” Williford v. Armstrong World Indus.,
Inc., 715 F.2d 124, 127 (4th Cir. 1983). When deciding
on a motion to stay, a court considers four factors:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.
Nken v. Holder, 556 U.S. 418, 426 (2009).
ask the court to stay its order remanding the case to state
court until the Fourth Circuit rules on defendants'
appeal of the court's order to remand. Defendants argue
that their appeal will likely succeed on the merits and that
they will be irreparably harmed if the court does not stay
its order to remand. The court first addresses whether it has
jurisdiction over this motion before considering whether
defendants are entitled to a stay under the Nken v.
Jurisdiction to Rule on the Motion to Stay
neither party has questioned whether the court has
jurisdiction to rule on the motion to stay, the court finds
it necessary to address it considering that this case differs
from the normal rules regarding a federal court's
jurisdiction over a remanded matter. Removal and remand