United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
matter is before the court pursuant to Plaintiff Brandon
Peake's ("Peake") Motion to Remand (ECF No. 16)
this action to the Fairfield County Court of Common Pleas.
Defendant Suzuki Motor of America, Inc.
("Defendant" or "SMAI") opposes
Peake's Motion to Remand and asks the court to retain
jurisdiction. (ECF No. 24.) For the reasons set forth herein,
the court DENIES Peake's Motion to
Remand (ECF No. 16) and retains jurisdiction over this
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
filed this products liability action in the Fairfield County
Court of Common Pleas on December 19, 2018. (See
generally ECF No. 1-1 at 2-4.) Peake names three
Defendants: (1) Suzuki Motor Corporation ("SMC"),
(2) American Suzuki Motor Corporation ("ASMC"), and
(3) SMAI (collectively, "Defendants"). Id.
Peake's chief allegation is that the defective condition
of a Suzuki Quadrunner 4WD-allegedly designed, manufactured,
and sold by Defendants-resulted in serious and severe head
and bodily injuries to Peake. (Id. at 3-4; ECF No.
11 at 1-3.)
February 11, 2019, SMAI filed its Notice of Removal (ECF No.
1), alleging that the case is removable to this federal court
under 28 U.S.C. § 1441(b), based on diversity of
citizenship. See 28 U.S.C. §1332; (ECF No. 1.)
February 28, 2019, Peake filed his Motion to Remand (ECF No.
16). Peake's main argument supporting remand is that SMAI
improperly removed the action without the consent of all
"properly joined and served defendants" as required
under the removal statute. 28 U.S.C. §
1446(b)(2)(A). (See generally ECF No. 16.)
Specifically, Peake argues that SMC was a "properly
joined and served defendant" because the South Carolina
Secretary of State accepted service on its behalf on January
7, 2019, pursuant to S.C. Code Ann. § 15-9-245(a)
(2019).Peake asserts that, despite being properly
served, SMC failed to consent to removal.
counters that S.C. Code § 15-9-245(a), while a proper
method of service in some circumstances, was not applicable
here. To that end, SMAI timely filed its Opposition to
Peake's Motion to Remand (ECF No. 24) on March 14, 2019.
SMAI contends that SMC was not properly served because the
corporation does not "do business" in South
Carolina. SMAI further argues that, because SMC is a foreign
corporation with no business in South Carolina, Peake was
required to serve SMC through the Hague Convention process
and failed to do so. Accordingly, SMAI argues that the case
is properly removed because SMAI was the only "properly
joined and served" Defendant at the time of removal, and
it, therefore, did not need SMC's consent to remove this
action to this court.
before the court is Peake's Motion to Remand this case to
the Fairfield County Court of Common Pleas (ECF No. 16),
which this court considers below.
to 28 U.S.C. § 1441(a), "any civil action brought
in a state court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants." 28 U.S.C. § 1441(a).
The relevant procedure for removing a case to federal court
is as follows:
(a) A defendant or defendants desiring to remove any civil
action or criminal prosecution from a State court shall file
in the district court of the United States for the district
and division within which such action is pending a notice of
removal signed pursuant to Rule 11 of the Federal Rules of
Civil Procedure and containing a short and plain statement of
the grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.
(b) The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based, or within thirty
days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is
28 U.S.C. § 1446.
"The Supreme Court has construed these statutes to
require all defendants in a case to join in or consent to
removal, creating the so-called 'rule of
unanimity.'" Hartford Fire Ins. Co. v.
Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir.
2013). The Fourth Circuit has recognized that "the rule
of unanimity is consistent with [the court's] obligation
to construe removal jurisdiction strictly because of the
significant federalism concerns implicated."
Id. (internal quotations omitted).
crux of this matter centers on whether the case was properly
removed to this court. In order to determine whether removal
was proper, the court must examine two underlying issues: (1)
whether SMC was properly served and (2) whether SMC's