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Americredit Financial Service, Inc. v. Pinnex

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

September 23, 2019

Americredit Financial Service, Inc., d/b/a G.M. Financial, Plaintiff,
v.
Ruby Elaine Pinnex, Defendant.

          ORDER AND OPINION

         Plaintiff Americredit Financial Service, Inc., doing business as G.M. Financial (“AFSI”), filed this action against Defendant Ruby Elaine Pinnex alleging breach of contract based on Pinnex’s failure to make timely payments due on a 2015 Buick Enclave. (ECF No. 13 at 1 ¶ 1–2 ¶ 2.)

         This matter is before the court to address issues regarding Pinnex’s removal of the matter from the Wake County, North Carolina General Court of Justice, Superior Court Division. (ECF Nos. 1 at 1, 6 at 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(g) D.S.C., the matter was referred to the United States Magistrate Judge for pretrial handling. On February 6, 2019, the Magistrate Judge issued a Report and Recommendation in which she recommended that the court “remand this matter to the General Court of Justice, Superior Court Division, Wake County, North Carolina.” (ECF No. 9 at 4.) Pinnex filed objections to the Magistrate Judge’s Report and Recommendation, which are presently before the court. (ECF No. 16.) Additionally, there are pending before the court AFSI’s Motion to Dismiss (ECF No. 13), Pinnex’s Motion to Strike (ECF No. 25), and her Motion for Recusal (ECF No. 32). For the reasons set forth below, the court ACCEPTS the Magistrate Judge’s recommendation and REMANDS the matter including the pending Motions to the Wake County, North Carolina General Court of Justice, Superior Court Division.

         I. RELEVANT BACKGROUND

         On December 7, 2018, AFSI allegedly filed an action against Pinnex in the Wake County, North Carolina General Court of Justice “alleging breach of contract related to Pinnex’s purchase of a motor vehicle in Orangeburg, South Carolina on or about August 7, 2015.” (ECF No. 13 at 1 ¶ 1 (referencing Americredit Fin. Servs., Inc. v. Pinnex, 18cvs14922 (Gen. Ct. J.)). “The contract at issue required Pinnex to pay AmeriCredit, as the contract assignee, the sum of forty-seven thousand five hundred eighty-nine dollars ($47, 589.00) for the purchase of a 2015 Buick Enclave, the purchase price being broken into seventy-five (75) monthly payments of seven hundred seventy-five dollars and sixty-six cents ($775.66).” (Id. at 2 ¶ 2.) On January 23, 2019, the North Carolina state court held a hearing on AFSI’s pending Motion for Claim and Delivery. (See ECF Nos. 6 at 1–8, 13 at 2 ¶ 5.) Immediately thereafter, Pinnex filed a Notice of Removal to remove the matter to this court on January 24, 2019. (ECF No. 1.)

         In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., the Magistrate Judge issued her Report and Recommendation on February 6, 2019, recommending that the “matter be remanded for lack of subject matter jurisdiction.” (ECF No. 9 at 1.) In support of her recommendation, the Magistrate Judge observed that under 28 U.S.C. § 1441(a) Pinnex’s “attempt to remove a pending North Carolina state court proceeding to the United States District Court for the District of South Carolina is improper.” (ECF No. 9 at 3 (citing Butler v. N.C. Dep’t of Transp., 154 F.Supp. 3d 252, 253 (M.D. N.C. 2016) (finding defendant’s failure to remove state court action to correct district court required remand to state court); Addison v. N.C. Dep’t of Crime & Pub. Safety, 851 F.Supp. 214, 218 (M.D. N.C. 1994) (finding when a party removes a case to the improper district court, the district court’s appropriate response should be to remand the case back to state court); Hoover v. Gershman Inv. Corp., 774 F.Supp. 60, 62 (D. Mass. 1991) (holding a defendant could not remove a state court action to a federal court sitting in a district and division other than where the state court action was pending)).)

         On February 11, 2019, Pinnex filed objections to the Report and Recommendation, specifically asserting that the Magistrate Judge erred in the following ways:

1. Identifying AFSI as Plaintiff when she filed the matter in this court;
2. Erroneously stating that she filed this matter pro se; and
3. Recommending remand when she is domiciled in South Carolina and AFSI is operating pursuant to interstate commerce.

         (ECF No. 16 at 1 ¶ 1–4 ¶ 6.) On February 25, 2019, AFSI filed a Reply Brief in Support of the Magistrate Judge’s Report and Recommendation. (ECF No. 20.)

         Additionally, while the Magistrate Judge’s Report was pending, AFSI filed a Motion to Dismiss (ECF No. 13) on February 7, 2019, and Pinnex filed a Motion to Strike (ECF No. 25) on March 11, 2019, and a Motion for Recusal (ECF No. 32) on May 30, 2019.

         The court considers the merits of Pinnex’s objections to the Report and Recommendation below.

         II. LEGAL STANDARD

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only those portions of a magistrate judge’s report and recommendation to which specific objections are filed, and reviews those portions which are not objected to–including those portions to which only “general and conclusory” objections have been made–for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th ...


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