United States District Court, D. South Carolina, Beaufort Division
C. NORTON UNITED STATES DISTRICT JUDGE.
following matter comes before the court on plaintiff Lisa
Sulka's (“Sulka”) motion to remand, ECF No.
4. For the reasons set forth below, the court grants the
action arises out of allegedly defamatory statements made by
defendant C.C. “Skip” Hoagland
(“Hoagland”) about Sulka, the mayor of Bluffton,
South Carolina. On July 26, 2017, Sulka filed this defamation
action in the Beaufort County Court of Common Pleas, alleging
that Hoagland made a number of defamatory statements in
emails he sent in October and December of 2015, as well as
one in April of 2017. ECF No. 1-1.
initial complaint named Hoagland as well as Domains New
Media, LLC as defendants. Although Hoagland used the name
Domains New Media, LLC when referring to his business, no
company ever existed under that name. The LLC actually
registered under Hoagland's name at the time of the
complaint was domainsnewmedia.com, LLC. For the next sixteen
months, the parties engaged in discovery. On November 26,
2018, Hoagland stated in a deposition that his LLC was
“a shell, ” that “it doesn't even exist
. . . It never existed really.” ECF No. 4-5, Hoagland
Depo. 226:18-226:25. On April 11, 2019, Sulka filed a motion
with the state court to amend her complaint and remove
Domains New Media, LLC as a defendant. On June 17, 2019, the
state court granted that motion. Hoagland filed a notice of
removal with this court on July 13, 2019, ECF No. 1. On July
19, 2019, Sulka filed the instant motion to remand, ECF No.
4. Hoagland responded on August 2, 2019, ECF No. 5, and Sulka
replied on August 8, 2019, ECF No. 6.
courts are of limited jurisdiction. “The party seeking
removal bears the burden of demonstrating that removal
jurisdiction is proper, ” In re Blackwater Sec.
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006), and
doubts regarding the propriety of removal are to be resolved
in favor of retained state court jurisdiction. Baxley v.
Advance Auto Parts, Inc., 2011 WL 586072 at *1 (D.S.C.
Feb. 9, 2011) (citing Marshall v. Manville Sales
Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
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 to the district
court of the United States for the district and division
embracing the place where such action is pending. 28 U.S.C.
§ 1441(a). Original jurisdiction exists where a claim
arises from federal law, see 28 U.S.C. § 1331,
or where the amount in controversy exceeds the sum or value
of $75, 000 and the claim is between citizen of different
states, see 28 U.S.C. § 1332.
bases her motion to remand on two alternative theories: one,
that Hoagland's removal is untimely and, two, that the
court does not have jurisdiction over her claim because the
parties are not diverse. Although Sulka relies on 28 U.S.C.
§ 1446(b)(3) and 28 U.S.C. § 1446(c)(1) for her
untimeliness argument, the motion is more easily and
accurately resolved under § 1446(b)(1). Sulka argues
that Hoagland's removal is untimely because he failed to
file his notice of removal within thirty days of the case
becoming removable or within a year of the case's
inception. Alternatively, Sulka argues that Hoagland was a
citizen of South Carolina when the lawsuit was filed, and,
thus, that the court does not have diversity jurisdiction
over her claim. Hoagland contends that when the lawsuit was
filed, he was a citizen of Florida. For the reasons discussed
below, Hoagland cannot simultaneously contend that his
removal is timely and that the parties are diverse. Because
Hoagland's position is fatal to either one basis for
removal or the other, this motion can be resolved without
definitively determining either issue.
delving into Hoagland's predicament, it is worth
discussing the effect of Sulka's mislabeling of
Hoagland's LLC in her initial complaint. Sulka's
initial complaint misnamed the LLC defendant, labeling it as
Domains New Media, LLC, rather than its registered name,
domainnewmedia.com, LLC. “It has long been the rule in
this circuit that service of process is not legally defective
simply because the complaint misnames the defendant in some
insignificant way.” Morrel v. Nationwide Mut. Fire
Ins. Co., 188 F.3d 218, 224 (4th Cir. 1999). Further,
“[t]he misnomer of a corporation in a notice, summons .
. . or other step in a judicial proceeding is immaterial if
it appears that [the corporation] could not have been, or was
not, misled.” United States v. A.H. Fischer Lumber
Co., 162 F.2d 872, 873 (4th Cir. 1947). Here,
Sulka's mistake was clearly harmless. The name listed in
the complaint was sufficiently similar to the LLC
defendant's actual name; the sole owner of
domainnewmedia.com, LLC was the only other defendant in the
case; and, most importantly, the LLC defendant actually
responded to the complaint despite the misnomer. Therefore,
Sulka's misnaming of the LLC defendant in the complaint
has no bearing on the instant motion.
right of a defendant to remove a case to federal court is
derived solely from 28 U.S.C. § 1441. A defendant can
waive her right to remove by failing to comply with the
removal procedures prescribed by 28 U.S.C. § 1446. A
defendant seeking to remove a case must file her notice of
removal “within 30 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.” 28 U.S.C.
§ 1446(b)(1). Where a case stated by the initial
pleading is not removable, a notice of removal may be filed
“within thirty days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(3).
case to be properly removed, the federal court must have
original jurisdiction over it in the form of federal question
or diversity jurisdiction. 28 U.S.C. § 1441(a). For a
federal court to have jurisdiction based on diversity of
citizenship, all plaintiffs and defendants must be citizens
of different states. 28 U.S.C. § 1332. For the purposes
of jurisdiction, a person is a citizen of the state in which
she is domiciled. Scott v. Cricket Commc'ns,
LLC, 865 F.3d 189, 195 (4th Cir. 2017). A person's
domicile is determined at the commencement of the lawsuit.
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S.
426, 428 (1991). A person has only one domicile for diversity
purposes at a particular time, even though she may have
several residences in different states. Commissioner of
Internal Revenue v. Nubar, 185 F.2d 584, 587 (4th Cir.
notice of removal, Hoagland claims that, at the time the
original complaint was filed, he was a citizen of the state
of Florida. Simultaneously, he claims that his wholly owned
LLC, Domains New Media, LLC, was a citizen of South Carolina
because it was formed in South Carolina. Both cannot be true.
It is well-settled that an LLC is a citizen of every state in
which any of its members are domiciled, not in the state in
which it was formed. Cent. W. Virginia Energy Co. v.
Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir.
2011). Therefore, at the time the ...