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Peake v. Suzuki Motor Corp.

United States District Court, D. South Carolina, Rock Hill Division

November 4, 2019

Brandon Peake, Plaintiff,
v.
Suzuki Motor Corporation, American Suzuki Motor Corporation, and Suzuki Motor Corporation of America, Inc., Defendants.

          ORDER AND OPINION

         Presently before the court is Defendant Suzuki Motor Corporation of America, Inc.'s (“SMAI”) Second Motion for Reconsideration (ECF No. 64). In its Motion, SMAI urges this court to reconsider (1) the court's October 7, 2019 Order (“Remand Order”) (ECF No. 58), and (2) the court's October 21, 2019 Order (the “October Order”) (ECF No. 63), which granted Plaintiff Brandon Peake's (“Peake”) Motion to Remand. In the October Order, the court denied SMAI's First Motion for Reconsideration (ECF No. 62) and determined that the court had committed no error in remanding the case to the Fairfield Court of Common Pleas. For the reasons stated below, the court DENIES SMAI's Second Motion for Reconsideration (ECF No. 64) WITH PREJUDICE.[1]

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         SMAI and Suzuki Motor Corporation (“SMC”) are corporations that are in the business of selling and manufacturing Suzuki products. SMAI is incorporated in California with its principal place of business in California. (ECF No. 1.) SMAI has a registered agent in South Carolina and is in good standing with the South Carolina Secretary of State. (ECF No. 27-3.) Further, SMAI does business in South Carolina as evidenced by numerous vehicle dealerships located, and transacting business, in South Carolina. (ECF No. 27-1.) SMC is SMAI's parent company and is a Japanese Corporation with its principal place of business in Japan. (ECF No. 27-2.)

         Peake is an individual who filed the underlying 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 named three Defendants: (1) 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.) On 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.) SMC did not consent to the removal.[2]

         On February 28, 2019, due to SMC's lack of consent to removal, Peake filed his Motion to Remand (ECF No. 16), arguing 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)-1447(c).[3] (See generally ECF No. 16.) Specifically, Peake argued that SMC was required to consent to removal because it is a “properly joined and served defendant” as 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).[4]

         On March 14, 2019, SMAI timely filed its Opposition to Peake's Motion to Remand (ECF No. 24), contending that SMC was not required to consent to removal because it was not a “properly served” defendant. Specifically, SMAI argued that SMC does not “do business” in South Carolina, and, therefore, service through the Secretary of State was an improper method of service. In fact, SMAI argued that Peake was required to serve SMC through the Hague Convention process and failed to do so. On March 21, 2019, Peake filed a Reply (ECF No. 27) in response to SMAI's Response (ECF No. 26). In that Reply, Peake demonstrated that SMAI, and, therefore SMC, does business in South Carolina.[5] The court ultimately granted Peake's Motion to Remand after it determined that (1) SMAI and SMC do business in the state as defined under S.C. Code §15-9-245 and (2) SMC failed to consent to removal.[6] (See ECF No. 58.)

         SMAI filed its First Motion for Reconsideration (ECF No. 62), re-arguing that SMC does not do business in the state and arguing, for the first time, that the Secretary of State was required to follow procedures set forth in the Hague Convention. (ECF No. 62 at 1-2.)[7] The court's October Order denied SMAI's First Motion for Reconsideration (ECF No. 62). Now, before the court, is SMAI's Second Motion for Reconsideration (ECF No. 64), which the court considers below.

         II. LEGAL STANDARD

         A. Motion for Reconsideration

         Rule 59 allows a party to seek an alteration or amendment of a previous order of the court. Fed.R.Civ.P. 59(e). Under Rule 59(e), a court may “alter or amend the judgment if the movant shows either (1) an intervening change in the controlling law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law or a manifest injustice.” Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010); see also Collison v. Int'l Chem. Workers Union, 34 F.3d 233, 235 (4th Cir. 1994). It is the moving party's burden to establish one of these three grounds in order to obtain relief under Rule 59(e). Loren Data Corp. v. GXS, Inc., 501 Fed. App'x. 275, 285 (4th Cir. 2012). The decision whether to reconsider an order pursuant to Rule 59(e) is within the sound discretion of the district court. Hughes v. Bedsole, 48 F.3d 1376, 1382 (4th Cir. 1995). A motion to reconsider should not be used as a “vehicle for rearguing the law, raising new arguments, or petitioning a court to change its mind.” Lyles v. Reynolds, C/A No. 4:14-1063-TMC, 2016 WL 1427324, at *1 (D.S.C. Apr. 12, 2016) (citing Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)).

         III. DISCUSSION

         Relying on Rule 59(e), SMAI has moved the court to grant its Second Motion for Reconsideration after the court has denied its First Motion for Reconsideration. Essentially, SMAI urges this court to reverse its decision to remand the action. Unfortunately, SMAI's Second Motion to Remand is deficient due to incurable procedural defects and also fails as a matter of law. Therefore, the court must deny SMAI's Second Motion for Reconsideration, with prejudice.

         A. Reviewability

         At the outset, this court's Remand Order and its October Order denying SMAI's First Motion for Reconsideration are unreviewable. While a court may generally grant a Rule 59(e) motion for reconsideration to correct a clear error of law, “that power is circumscribed when the proposed reconsideration concerns a remand order.” (citing Cooke-Bates v. Bayer Corp., No. 3:10-CV-261, 2010 WL 3984830, at *2 (E.D. Va. Oct. 8, 2010)). 28 U.S.C. §1447(d) states that:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title [dealing with Civil Rights Cases] shall be reviewable[.]”

28 U.S.C. §1447(d). (Emphasis added).

         The U.S. Supreme Court has ruled that §1447(d) prohibits review of a remand order when, as in this case, the order was issued pursuant to 28 U.S.C. §1447(c). Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). As the Fourth Circuit has determined, the only remand orders that are immune from review are remand orders based on… “a defect in removal procedure that was raised by the party within 30 days after the notice of removal was filed.” See Nadel v. Marino, 740 Fed.Appx. 276 (4th Cir. 2018) (citing Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008)) (emphasis added); see also Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 127 S.Ct. 2411, 2415, 168 L.Ed.2d 112 (2007). Building on this rule, “courts have also found that the ‘otherwise' language of section 1447(d) bars district courts from reconsidering orders remanding cases on 1447(c) grounds. Cty. of Charleston, SC v. Finish Line Found. II Inc., No. 2:17-CV-03496, 2018 WL 3303197, at *3 (D.S.C. July 5, 2018) (citing Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 225 (3d Cir. 1995) (emphasis added). Courts within the Fourth Circuit, and other circuits, have determined that a district court's order to “remand to the state court based on the absence of [a] defendant's unanimous consent to removal” constitutes the very “defect in removal procedure” that 1447(c) contemplates. As such, an order remanding a case due to lack of unanimous consent is unreviewable. Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 510 (E.D. Va. 1992); see also In re Ocean Marine Mut. Prot. & Indem. Ass'n, Ltd., 3 F.3d 353, 355 (11th Cir. 1993) (“a remand order based on a timely §1447(c) motion to remand for defects in removal procedure is unreviewable.”). Additionally, not only is the remand order unreviewable, but an order denying reconsideration of that remand-and certainly a second motion for reconsideration-is unreviewable. See Agostini v. Piper Aircraft Corp., 729 F.3d 350, 353 (3d Cir. 2013) (holding that allowing reconsideration of a motion to reconsider remand would subvert the principal purpose of the federal rules protecting state jurisdiction over cases that have been remanded because “it is impossible to disaggregate the order denying reconsideration from the remand order itself).

         Here, it is undisputed that Peake timely filed his Motion to Remand within thirty days of SMAI's Notice of Removal, thus, preserving his ability to legally challenge Defendants' procedural defect.[8] Therefore, the court removed the case due to a procedural defect under 1447(c) and that decision is unreviewable. Further, because the court has already remanded the case, it no longer has jurisdiction over this matter and can no longer alter its disposition. Indeed, a certified copy of the remand order was mailed to the Fairfield County Clerk of Court on October 7, 2019- once that happened, the court was divested of jurisdiction.[9]Agostini, 729 F.3d at 355 (“A district court loses jurisdiction over a case once it has completed the remand by sending a certified copy of the remand order to state ...


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