United States District Court, D. South Carolina
Timothy M. Cain United States District Judge
matter is before the court on Plaintiff's Motion to
Remand (ECF No. 12) and Plaintiff's Motion for
Attorney's Fees (ECF No. 15). Defendant is represented by
counsel while the Plaintiff proceeds pro se. In
accordance with 28 U.S.C. § 636(b)(1)(A) and Local Civil
Rule 73.02(B)(2)(g), D.S.C., this matter was referred to a
magistrate judge for pretrial handling. Before the court is
the magistrate judge's Report and Recommendation
(“Report”), which recommends that the court grant
Plaintiff's Motion to Remand and deny Plaintiff's
Motion for Attorney's Fees. (ECF No. 26). The magistrate
judge notified the parties of their right to file objections
to the Report. Id. at 21. Defendant filed timely
objections to the Report. (ECF No. 29). Plaintiff did not
file objections to the Report but filed a response to
Defendant's objections (ECF No. 30). Accordingly, the
matter is now ripe for review.
report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261-71 (1976).
The court is charged with making a de novo determination of
those portions of the Report to which a specific objection is
made, and the court may accept, reject, modify, in whole or
in part, the recommendation of the magistrate judge or
recommit the matter with instructions. 28 U.S.C §
636(b)(1). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in 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 &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
commenced this action by filing a summons and complaint in
the Oconee County Court of Common Pleas on April 9, 2019,
alleging a state law claim for defamation. (ECF No. 1-1 at 3
- 7). Thereafter, Plaintiff served the summons and complaint
on Defendant through the Oconee County Sheriff's Office
on April 14, 2019. (ECF No. 10-1). Defendant filed its Notice
of Removal (ECF No. 1) with this court on April 24, 2019, on
diversity jurisdiction grounds.
court issued an Order to Show Cause (ECF No. 8), dated April
29, 2019, directing Defendant to explain why the case should
not be remanded to state court. On May 2, 2019, Plaintiff
filed a Motion to Remand, arguing that the elements of
diversity jurisdiction as laid out in 28 U.S.C § 1332
are not met in this case due to Defendant being a South
Carolina resident and the amount in controversy being less
than $75, 000. (ECF No. 12). On May 7, 2019, Defendant
replied to Plaintiff's Motion to Remand, arguing that
diversity jurisdiction is warranted because Defendant is a
resident of Florida and the amount in controversy is $150,
000. (ECF No. 19). On May 13, 2019, Plaintiff filed a reply
to Defendant's response (ECF No. 24).
LAW AND ANALYSIS
courts enjoy “original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of all interest and costs, and
is between . . . citizens of different states.” 28
U.S.C. § 1332. This statute requires complete diversity.
Cent. W.Va. Energy Co., Inc. v. Mountain State Carbon,
LLC, 636 F.3d 101, 103 (4th Cir. 2011).
satisfy the complete diversity requirement of 28 U.S.C.
§ 1332, “the citizenship of every plaintiff must
be different from the citizenship of every defendant.”
Id. “To be a citizen of a State, a person must
be both a citizen of the United States and a domiciliary of
that State.” Id. “Domicile requires
physical presence, coupled with an intent to make the State a
home.” Id. As one court noted, “it is
quite settled that mere residence in a state is not enough
for purposes of diversity, and that the more elusive concept
of ‘domicile' is controlling.” Miller v.
Lee, 241 F.Supp. 19, 22 (W.D.S.C. 1965); see also
Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir.
2008) (holding residency is not sufficient to establish
citizenship). When a party's citizenship is in question,
a court must consider several factors to accurately determine
citizenship including voter registration, location of
property, location of current residence, bank accounts,
church affiliation, place of employment, and location where
taxes are paid. Scott v. Cricket Commc'ns, LLC,
865 F.3d 189, 195 (4th Cir. 2017).
Report, the magistrate judge determined that the Defendant is
a South Carolina resident because Defendant owns and occupies
a residence in South Carolina, participates in community
meetings in South Carolina, pays utility bills in South
Carolina, drives South Carolina registered vehicles, and pays
taxes in South Carolina. (ECF No. 26 at 9). Additionally, the
Report notes that despite the Defendant stating otherwise,
due to the Defendant's choice to participate in community
meetings and discussions in her South Carolina residential
community, the Defendant appeared to have an intent to be
domiciled in South Carolina. Id. at 10.
filed objections to the Report. (ECF No. 26). Most of
Defendant's objections are nonresponsive to the Report
and simply reiterate the claims and facts that were already
considered by the magistrate judge. Defendant does object,
however, to the magistrate judge's determination that
Defendant is domiciled in South Carolina. (ECF No. 29 at 3).
Specifically, Defendant argues that she is not domiciled in
South Carolina because she has a Florida driver's
license, owns land in Florida, has not claimed preferential
tax treatment for her lot in South Carolina, has vehicles
registered in Florida, receives her pet's medication from
a veterinarian in Florida, and has a Florida
address for many important documents. Id.
at 2-3. Moreover, Defendant maintains that Plaintiff has
failed to present sufficient evidence that Defendant intended
to change her Florida domicile, noting that “mere
absence from a fixed home, however long continued” does
not constitute a change in domicile. (ECF No. 29 at 1-2).
response, Plaintiff argues that Defendant has had no
residence other than her home in Oconee County, South
Carolina, since 2016. (ECF Nos. 12-2 at 2; 30 at 2).
Plaintiff further contends that the Defendant maintains
connections to Florida merely for income tax advantages and
that this Florida address is nothing more than a
mail-forwarding service run out of a retail outlet, found at
411 Walnut Street #11017, Green Cove Springs, FL 32043. (ECF
No. 12-2 at 2).
courts must construe the removal statute strictly against
removal because removing a case from state court implicates
“significant federalism concerns.” Mulcahey
v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151
(4th Cir. 1994) (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-09 (1941)); see also
Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758
F.Supp. 1098, 1102 (D.S.C. 1990) (holding strict
interpretation of the removal statute calls for any doubts
about federal jurisdiction being resolved against removal,
with the case being remanded to state court). Defendant has
not contested the assertion that the redacted address is in
fact not an established Florida residence. Indeed, the
evidence reflects that the Defendant has no “fixed
home” or place of abode in Florida. At ...