United States District Court, D. South Carolina, Florence Division
Pamela A. Breen, Plaintiff,
Ivantage Select Agency, Inc., Defendant.
Bryan Harwell, Chief United States District Judge
matter is before the Court on Plaintiff Pamela Breen's
motion to remand this case to state court. See ECF
No. 7. The Court grants the motion for the reasons
Plaintiff originally filed this action in the Horry County
Court of Common Pleas on January 25, 2019. See
Summons & Complaint [ECF No. 1-1]. In her complaint,
Plaintiff alleges she owns a South Carolina Flood Insurance
Policy issued by Defendant Ivantage Select Agency, Inc.
insuring property located in Myrtle Beach, South Carolina.
Compl. at ¶¶ 4-5. Plaintiff claims Defendant
erroneously classified the insured property as a
“second home, ” has refused her requests to
reclassify it as a “primary residence, ” and has
failed to refund the “overpayment of fees, costs,
assessments, etc.” that she has paid Defendant for
several years. Id. at ¶¶ 7-11, 14.
Plaintiff asserts two state-law causes of action-(1)
violation of the South Carolina Unfair Trade Practices
and (2) negligence-and seeks a judgment not exceeding $75,
000. Id. at ¶¶ 12-20.
removed the action to this Court asserting federal question
jurisdiction was available under 28 U.S.C. §
1331. See ECF No. 1. Defendant
subsequently filed an answer. See ECF No. 4.
Plaintiff then filed the instant motion to remand, and
Defendant filed a response in opposition. See ECF
Nos. 7 & 12.
Plaintiff argues remand to state court is required because
the Court lacks subject matter jurisdiction. Defendant
contends federal question jurisdiction exists under §
1331 because Plaintiff seeks a refund of premiums involving a
federal flood insurance policy.
party seeking to remove a case to federal court bears the
burden of establishing federal subject matter jurisdiction.
Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d
148, 151 (4th Cir. 1994). Thus, Defendant bears the burden to
establish federal jurisdiction is proper in this case.
“Because removal jurisdiction raises significant
federalism concerns, [the Court] must strictly construe
removal jurisdiction. If federal jurisdiction is doubtful, a
remand is necessary.” Id. (internal citation
court defendant may remove a civil action to a federal
district court having original jurisdiction over the action.
28 U.S.C. § 1441(a). Federal district courts have
original jurisdiction over all civil actions arising under
federal law. 28 U.S.C. § 1331 (federal-question
jurisdiction). “The presence or absence of
federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987).
Under the well-pleaded complaint rule, as the Supreme Court
has explained, “a case can ‘aris[e] under'
federal law in two ways.” See Gunn v. Minton,
568 U.S. 251, 257 (2013). First, “a case arises under
federal law when federal law creates the cause of action
asserted.” Id. Second, as relevant here,
§ 1331 confers jurisdiction over a “special and
small category” of claims that originate in
“state rather than federal law.” Id. at
258 (internal quotation marks omitted). In such situations,
as the Court has recognized, “arising under”
jurisdiction will only exist over a state-law claim if a
“federal issue” is “(1) necessarily
raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the
federal-state balance approved by Congress.”
Id. (relying on Grable & Sons Metal Prods.,
Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314
Virginia ex rel. Hunter Labs., L.L.C. v. Virginia,
828 F.3d 281, 286-87 (4th Cir. 2016) (emphases added). In
several recent decisions, the Fourth Circuit has adhered to
the “four-part Grable test.”
See, e.g., id.; Burrell v.
Bayer Corp., 918 F.3d 372 (4th Cir. 2019); Pressl v.
Appalachian Power Co., 842 F.3d 299 (4th Cir. 2016);
Flying Pigs, LLC v. RRAJ Franchising, LLC, 757 F.3d
177 (4th Cir. 2014). Failure to satisfy any part of the
Grable test precludes federal jurisdiction over a
state-law claim. Gunn, 568 U.S. at 258;
Pressl, 842 F.3d at 303. Following the 2005
Grable decision, both the Fourth Circuit and
“the Supreme Court ha[ve] emphasized [that] § 1331
confers federal jurisdiction over state-law causes of action
only in a ‘special and small' class of
cases.” Burrell, 918 F.3d at 376 (quoting
Empire HealthChoice Assurance, Inc. v.
McVeigh, 547 U.S. 677, 699 (2006)).
“[P]ost-Grable decisions, including Empire
HealthChoice . . ., hold that a federal role in
insurance is not enough to establish that a state-law suit
really arises under federal law.” Hartland Lakeside
Joint No. 3 Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032,
1034 (7th Cir. 2014).
the first part of the Grable test-that the federal
issue be “necessarily raised”-is not satisfied.
See generally Burrell, 918 F.3d at 381 (“A
federal question is ‘necessarily raised' for
purposes of § 1331 only if it is a necessary element of
one of the well-pleaded state claims.” (some internal
quotation marks omitted)); Flying Pigs, 757 F.3d at
182 (“[A] plaintiff's right to relief for a given
claim necessarily depends on a question of federal law only
when every legal theory supporting the claim
requires the resolution of a federal issue.”).
Specifically, Plaintiff's two state-law causes of
action-negligence and violation of the South Carolina Unfair
Trade Practices Act (UTPA)-do not necessarily raise
federal issues. Although her claims mention a federal flood
insurance policy, the real issue in this case is whether the
insurer (Defendant) breached any duty and/or engaged in any
unfair trade practice that resulted in Plaintiff overpaying
the premium on the policy, with damages determined by the
amount of overpayment. For either the negligence or UTPA
claim, “it is clear . . . that [Plaintiff] can
establish all the necessary elements entirely
independently of federal law, ” Burrell, 918
F.3d at 382 (emphasis added), and “[t]he most one can
say is that a question of federal law is lurking in the
background, but that does not make the claims into ones
arising under federal law.” Flying Pigs, 757
F.3d at 183 (brackets, internal quotation marks, and ellipsis
the ‘necessarily raised' requirement for a
‘significant' federal issue-formulated and
explained by the Supreme Court in Grable and
Gunn-has not been satisfied.” Flying
Pigs, 757 F.3d at 182-83. Because the first requirement
of Grable is not satisfied, the Court need not
address the remaining parts of the test.See,
e.g., Hunter Labs., 828 F.3d at 288 & n.9
(declining to address the remaining three prongs of the
Grable test because the first one was not
satisfied); Flying Pigs, 757 ...