United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE
case was originally filed in the South Carolina Court of
Common Pleas, but was removed to this Court by the Defendants
on the basis of federal question jurisdiction. Specifically,
Defendants stated that Plaintiffs had set forth a federal
constitutional “takings” claim against the
Defendant City of Charleston in their Sixth Cause of Action.
However, Plaintiff's Sixth Cause of Action does not
indicate that it is being brought under the United States
Constitution, and neither the now Amended Complaint, or the
original Complaint filed in state court, referenced any
federal claims. Numerous motions are currently pending,
including Plaintiffs' motion to remand filed December 4,
Plaintiffs' Sixth Cause of Action could be pursued under
the state, not federal, constitution; see Brinkman, et.
al., v. Weston & Sampson, et. al., No. 16-169, 2016
WL 1258384, at * 3-4 (D.S.C. March 31, 2016) [South Carolina
Constitution includes “takings” clause]; the
Court entered an Order on January 29, 2019 directing the
Plaintiffs to clarify their position on the following two
issues within ten (10) days of the date of that Order: 1) are
Plaintiffs only intending to pursue their claims, not limited
to, but specifically addressing their inverse condemnation
claim, based on state law and the state constitution and not
on federal law?, and 2) do Plaintiffs concede that if this
Court has subject matter jurisdiction, that their motion to
remand is untimely? The parties were further advised in that
Order that if the Plaintiffs are only pursuing their Sixth
Cause of Action as a state constitutional claim, then this
case would be subject to remand to state court. See
Stehney v. Ferguson, No. 16-3955, 2017 WL 92922563
(D.S.C. March 9, 2017) [Noting that the Plaintiff is the
master of his claim and may avoid federal jurisdiction by
exclusive reliance on state law], adopted by 2017 WL
2982114 (D.S.C. July7 13, 2017). However, if Plaintiffs
confirmed that they are seeking relief in their Sixth Cause
of Action under the United States Constitution, then the
Court would turn to consideration of the other issues raised
in the pending motions.
have now filed a response to the Court's Order in which
they confirm that they are only asserting their Sixth Cause
of Action as a state constitutional claim. See Court
Docket No. 63. As such, there is no federal question
jurisdiction under 28 U.S.C. § 1331, and a federal court
must remand a case to state court if there is no federal
question jurisdiction or diversity jurisdiction. Lyon v.
Centimark Corp., 805 F.Supp. 333, 334 (E.D. N.C. 1992).
It is well settled that federal courts are courts of limited
jurisdiction, possessing only that power authorized by the
constitution and statue; Willy v. Coastal Corp., 503
U.S. 131, 136-137 (1992); and because federal courts have
limited subject matter jurisdiction, there is no presumption
that the court has jurisdiction. Turner v. Bank of North
America, 4 U.S. 8, 11 (1799). Further, a defendant in a
state court case may remove that case to a federal district
court only if the state court action could have been filed in
a federal district court, and the defendant seeking removal
has the burden of establishing federal jurisdiction.
Wilson v. Republic Iron & Steel Co., 257 U.S.
92, 97 (1921); Altimore v. Mount Mercy College, 420
F.3d 763, 768 (8th Cir. 2005)[The defendant bears
the burden of establishing federal jurisdiction by a
preponderance of the evidence]. Additionally, because the
federal courts have limited jurisdiction and removal
jurisdiction raises federalism concerns, a district court
must strictly construe the removal statutes, with any doubts
about federal jurisdiction to be resolved against removal.
Chesire v. Coca-Cola Bottling Affiliated, Inc., 758
F.Supp. 1098, 1102 (D.S.C. 1990); see also Dixon v.
Coburg Dairy, Inc., 369 F.3d 811, 816 (4th
Cir. 2004)[Courts are obligated to “construe removal
jurisdiction strictly because of the ‘significant
federalism concerns' implicated.” (quoting
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994))]; In re Prempro
Products Liability Litigation, 591 F.3d 613, 620
(8th Cir. 2010)(citing Wilkinson v.
Shackelford, 478 F.3d 957, 963 (8th Cir.
2007))[“All doubts about federal jurisdiction should be
resolved in favor of remand to state court.”].
as there are no federal claims presented in Plaintiffs'
Complaint, it is recommended that the
Plaintiffs' motion to remand be granted,
and that this case be remanded back to state court for
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, 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.'”
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72
advisory committee's note).
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
Robin L. Blume United States District Court Post Office Box
835 Charleston, South Carolina 29402
to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
While many Courts have held that orders
on motions for remand are non-dispositive and can be issued
by a United States Magistrate Judge in a non-consent case, it
is not firmly established whether the undersigned can issue
an order on a motion for remand, or whether a Report and
Recommendation is required. Cf. Williams v.
Beemiller, Inc.,527 F.3d 259 (2d Cir. 2008)[Finding
that remand orders are dispositive]; Vogel v. US. Office
Products Co., 258 F.3d 509, 514-517 (6th Cir.
2001)[same]; First Union Mortgage Co. v. Smith, 229
F.3d 992, 996-997 (10th Cir. 2000)[same]; In re U.S.
Healthcare, 159 F.3d 142, 145-146 (3d Cir. 1998)[same];
Stanion v. Staley, No. 16-750, 2016 WL 3629087 at *
1, n. 1 (D. N.C. June 29, 2016); William E. Smith
Trucking, Inc. v. Rush Trucking Centers of North Carolina,
Inc., No. 11-887, 2012 WL 214155, at * 2-6 (M, D. N.C.
Jan. 24, 2012) [Analyzing relevant statutes and caselaw and
finding that remand order is nondispositive];
Pikkertv. Pastene, No. 03-1212, 2003 WL
21154296 (4th Cir. May 20, 2013), cert.
denied, 541 U.S. 987 (2014)[unpublished, but finding
that a magistrate judge's remand order is not reviewable
by the appellate court]; see Jones v. Unison Ins.
Co., No. 00-1217, 2000 WL 1350648, at * 1
(4th Cir. Sept. 20, 2000) [Noting that Fourth
Circuit has not addressed question of whether Magistrate