United States District Court, D. South Carolina, Orangeburg Division
Pamela Drain, individually and as mother and Guardian of R.D., a minor under the age of fourteen, Plaintiff,
South Carolina Department of Education, Defendant.
ORDER AND OPINION
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).
RELEVANT BACKGROUND OF PENDING MOTION
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.
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.)
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.
Motion to Remand
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)).
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).
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.
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.
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 ...