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Drain v. South Carolina Department of Education

United States District Court, D. South Carolina, Orangeburg Division

September 16, 2019

Pamela Drain, individually and as mother and Guardian of R.D., a minor under the age of fourteen, Plaintiff,
v.
South Carolina Department of Education, Defendant.

          ORDER AND OPINION

         This matter is before the court pursuant to Plaintiff Pamela Drain's (“Drain”) Motion to Remand (ECF No. 23-1) the case to the Orangeburg County Court of Common Pleas. Defendant South Carolina Department of Education (“SDOE”) opposes Drain's Motion to Remand and asks the court to retain jurisdiction of this case. (ECF No. 24.) For the reasons set below, the court GRANTS IN PART AND DENIES IN PART Drain's Motion to Remand (ECF No. 23-1).

         I. RELEVANT BACKGROUND OF PENDING MOTION

         On September 8, 2016, Drain, individually and as mother and guardian of R.D., a minor, filed suit in the Orangeburg County Court of Common Pleas against (1) Edisto Primary School, (2) Orangeburg Consolidated School Four and (3) SDOE for various state law negligence claims arising from several incidents where R.D., an autistic child, was allegedly assaulted and mistreated on the school bus and at school. (ECF No. 1-2 at 82, 83 ¶¶ 17, 18, 23.) After Drain's initial suit was filed, Defendants Edisto Primary School and Orangeburg Consolidated School Four were both dismissed with prejudice by virtue of the parties' agreed upon stipulations. (ECF No. 1-1 at 49; ECF No. 42.) SDOE is the only remaining Defendant.

         For three years, the parties have engaged in vigorous litigation and discovery where they have taken depositions, filed numerous dispositive motions, and participated in status conferences with the presiding state court judge. On October 9, 2018, Drain sought leave of the state court to file an Amended Complaint. (ECF No. 23-1 at 2.) The state court judge entered an order granting leave for Drain to file her Amended Complaint on November 9, 2018. (ECF No. 1-2 at 94-96.) The Amended Complaint maintained the initial gross negligence claims, but added a new allegation that the school deprived R.D. of an IEP (Individual Education Program). (ECF No. 1-2 at 85 ¶ 40.)

         On December 4, 2018, SDOE filed its Notice of Removal (ECF No. 1), removing the action to this court. On December 21, 2018, Drain filed a Motion to Remand, asserting that no basis of removal exists as to any claims in her Amended Complaint. (ECF No. 23-1 at 2.) SDOE filed a Response to Drain's Motion to Remand on the same day (ECF No. 24.), arguing that the court has federal question jurisdiction. On January 7, 2019, in her Reply to SDOE's Response, Drain urged the court to remand the entire matter or sever and remand the state law negligence claims pursuant to 28 U.S.C. § 1441(c)(2). (ECF No. 27 at 1.) The case was stayed on May 9, 2019 (ECF No. 45) until the court rules on Drain's Motion to Remand (ECF No. 23-1). The court now turns to Drain's Motion to Remand.

         II. LEGAL STANDARD

         A. Motion to Remand

         It is well established that removal jurisdiction is strictly construed. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citation omitted). In deciding a motion to remand, the party seeking removal bears the burden of showing federal jurisdiction exists. Id. (citation omitted). In addition, a district court must “‘resolve all doubts about the propriety of removal in favor of retained state jurisdiction.'” Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).

         Courts must narrowly interpret removal jurisdiction because of the significant federalism concerns that are raised by removing proceedings from state court; accordingly, all doubts are resolved in favor of remand. See Shamrock Oil & Gas Corp. V. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941).

         III. DISCUSSION

         A. Timely Removal

         Under 28 U.S.C. § 1446(b)(3), “a notice of removal may be filed within 30 days after receipt by the defendant ... 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), in part. The pivotal issue presented in this matter is at what moment does the thirty-day period for removal commence when a plaintiff files an amended complaint. Drain argues that the thirty-day clock for SDOE to remove began on October 9, 2018, which was the date she filed her Motion to Leave to file an Amended Complaint. On the other hand, SDOE insists that the clock was not triggered until the state court actually entered its order granting Drain's Motion to Leave to file the Amended Complaint, which was on November 9, 2018.

         In determining what triggers the removal period, “[a] minority of courts have held that the removal period begins when a plaintiff files a motion to amend.” Nolan v. Sunstate Carriers, Inc., C/A No. 4:09-2043-RBH, 2009 WL 5031308, at *3 (D.S.C. Dec. 14, 2009) (citations omitted). On the other hand, “[t]he majority of courts ... have held that the thirty-day removal period does not begin to run until a state court judge enters an order granting leave to file an amended complaint.” Id. (citing Hibbs v. Consol. Coal Co., 842 F.Supp. 215 (N.D. W.Va. 1994) (other citations omitted)) (emphasis added); see also Savilla v. Speedway SuperAmerica, LLC, 91 Fed.Appx. 829, 830-31 (4th Cir. 2004) (per curiam) (vacating the decision of the district court and finding that removal was not premature where state court granted a motion for leave to file an amended complaint and the Second Amended Complaint was filed with the motion, signed by counsel, and served upon opposing counsel). In other words, “[w]here leave to amend is required, an amended complaint cannot be operative until that leave has been granted. Simply put, in federal court, there is simply no such thing as ‘contingent' subject matter jurisdiction.” McDonough v. UGL UNICCO, 766 F.Supp.2d 544, 546 (E.D. Pa. 2011) (footnote omitted). The Hibbs court also explained that this rule “relieves defendants from speculating about the state court's ruling or speculating about whether a plaintiff will withdraw a motion to amend if a Notice of Removal is filed.” Hibbs, 842 F.Supp. at 217.

         Upon consideration of these factors and the record before the court, the court agrees with the majority rule. Therefore, applying the majority rule to the instant case, Drain's timeliness argument is without merit. The court finds that SDOE's removal was timely because its Notice of Removal was filed on December 4, 2018. As such, removal was made well within thirty (30) days of November 9, 2018, which was the date that the state court judge granted Drain's Motion to Amend. Therefore, SDOE could reasonably ...


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