Opinion
C. A. 3:23-cv-543-TMC-MHC
04-17-2023
Dennis Gallipeau, Plaintiff, v. Renewal by Andersen, LLC, and Window Replacement Columbia, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This action was removed to this Court from state court on February 8, 2023. ECF No. 1. Before the Court is Plaintiff's Motion to Strike the Notice of Removal and Motion to Remand to State Court (“Motion”). ECF No. 9. Defendant Renewal by Andersen, LLC (“Renewal”) opposes the Motion. ECF Nos. 10 & 11. Plaintiff filed a Reply. ECF No. 16. The Motion is ripe for review.This Report and Recommendation is entered for review by the District Judge.
As of the filing of this Report and Recommendation, Defendant Window Replacement Columbia has not made an appearance in this case, nor is there any indication on the docket that this Defendant has been served.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), D.S.C.
PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se, filed this action on January 6, 2023, in the Court of Common Pleas of Richland County, South Carolina, alleging one claim of violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”), SC Code Ann. § 39-5-10, and one claim for violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. See ECF No. 1-1. Both claims arise from Plaintiff's allegations that between November 17, 2022, and December 30, 2022, Defendants placed more than eighteen calls to Plaintiff without prior express consent and after Plaintiff asked Defendants to stop calling him. ECF No. 1-1 at 4.
On February 8, 2023, Defendant Renewal filed a Notice of Removal (“Notice”) in this Court, asserting that the Court has original jurisdiction over the TCPA claim and supplemental jurisdiction over the SCUTPA claim. ECF No. 1 at ¶¶ 2-4. The Notice further represented that Renewal was served on January 9, 2023, such that the Notice was filed not more than 30 days after service. Id. at ¶ 5. Finally, the Notice stated that “a removal notice, together with a copy of the instance Notice of Removal, shall be filed with the clerk in the Court of Common Pleas of South Carolina.” Id. at ¶ 8.
On February 22, 2023, Plaintiff filed the instant Motion seeking remand. ECF No. 9.
LEGAL STANDARD
A defendant may remove a civil action brought in state court if the case originally could have been brought in a federal district court. See 28 U.S.C. § 1441(a) (“[A]ny 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.”). Generally, a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. “The burden of establishing federal jurisdiction is placed upon the party seeking removal.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
In addition to demonstrating original jurisdiction, a removing defendant must follow proper removal procedures. See 28 U.S.C. § 1446 (listing procedure for removal of civil actions). When a plaintiff believes removal was procedurally improper and seeks to remand the case on that basis, he must move to remand “within 30 days after the filing of the notice of removal.” 28 U.S.C. § 1447(c). A motion to remand based on the court's lack of subject matter jurisdiction, by contrast, may be raised at any time. See Id. (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).
“Federal courts are courts of limited jurisdiction,” which “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Removal statutes, in particular, must be strictly construed, inasmuch as the removal of cases from state to federal court raises significant federalism concerns.” Barbour v. Int'l Union, 640 F.3d 599, 605 (4th Cir. 2011) (en banc) (abrogated in part on other grounds by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (Dec. 7, 2011)); see also Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc) (noting that federal courts “are obliged to construe removal jurisdiction strictly because of the significant federalism concerns implicated”) (internal quotation marks omitted). Thus, any doubts about the propriety of removal should be resolved against the federal forum and in favor of remanding the case to state court. Barbour, 640 F.3d at 605; see also Palisades Collections LLC v. Shorts, 552 F.3d 327, 336 (4th Cir. 2008) (emphasizing that courts have a “duty to construe removal jurisdiction strictly and resolve all doubts in favor of remand”); Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993) (recognizing “Congress' clear intention to restrict removal and to resolve all doubts about the propriety of removal in favor of retained state court jurisdiction”); Gates at Williams-Brice Condo. Ass'n & Katherine Swinson v. Quality Built, LLC, No. 3:16-CV-02022-CMC, 2016 WL 4646258, at *3 (D.S.C. Sept. 7, 2016) (“The same rule applies to procedural deficiencies as jurisdictional deficiencies, so long as the procedural challenge is timely raised by a party.”).
DISCUSSION
Plaintiff filed his Motion within thirty days after the case was removed to federal court. In his Motion, Plaintiff's argues that the case should be remanded to state court because the court does not have “exclusive jurisdiction” over the TCPA claim. ECF No. 9 at 5-6. Plaintiff also asks that the Court strike the Notice of Removal because he did not receive a copy of the Notice in the mail and the Notice had not been filed in the state court as of February 18, 2023. Id. at 1-4.
I. The Court has subject matter jurisdiction over this case.
Section 1331 grants district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The TCPA is a law of the United States, meaning this Court has original jurisdiction over Plaintiff's TCPA claim. See 47 U.S.C. § 227; see also Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc., No. 3:15-cv-05061-JMC, 2018 WL 3241178, at *3 (D.S.C. July 3, 2018) (“The court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff brings its claim pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C).”). Moreover, as the Supreme Court explained in Mims v. Arrow Financial Services, 565 U.S. 368 (2012), “[n]othing in the text, structure, purpose, or legislative history of the TCPA calls for displacement of the federal-question jurisdiction U.S. district courts ordinarily have under 28 U.S.C. § 1331.” Id. at 386-87. Because the TCPA claim arises under federal law, the requirements of federal question jurisdiction are satisfied.
Further, upon review of the Complaint, the undersigned finds that the SCUTPA claim is based on the same operative factual allegations as the TCPA claim and, therefore, is “so related” to the federal cause of action that it forms “part of the same case or controversy.” See 28 U.S.C. § 1367(a); Hartman v. Univ. of Maryland at Baltimore, 595 Fed.Appx. 179, 180 (4th Cir. 2014) (explaining that district courts may exercise supplemental jurisdiction over state law claims that “derive from a common nucleus of operative fact” as the federal claim, such that they form part of the same case or controversy). Therefore, the Court can exercise supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367(a). Accordingly, to the extent Plaintiff moves to remand this case to state court for lack of subject matter jurisdiction, the undersigned finds that remand is not warranted on that basis.
II. Remand on the basis of procedural deficiencies is not warranted.
Plaintiff argues that the Notice of Removal should be stricken from the record and the case remanded because Renewal failed to promptly notify the state court or Plaintiff of the Notice of Removal, as required under 28 U.S.C. § 1446(d). ECF No. 9 at 1-4. The undersigned disagrees.
According to 28 U.S.C. § 1446, which sets forth the procedure for removing a case to federal court, a defendant desiring to remove a civil action from a state court shall, within 30 days after receipt by the defendant of a copy of the initial pleading, “file in the district court . . . a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a)-(b). The statute further provides as follows: “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” Id. § 1446(d). The statute does not define the term “promptly,” but courts have found that in the context of § 1446(d),“promptly” does not mean “simultaneously.” Nixon v. Wheatley, 368 F.Supp.2d 635, 640 (E.D. Tex. 2005) (collecting cases).
The evidence before the Court indicates that Renewal mailed the Notice of Removal to Plaintiff on February 13, 2023, ECF No. 11-1, but Plaintiff did not receive the mailing, see ECF Nos. 9 at 2; 9-4. Pursuant to Rule 5(b)(2)(C) of the Federal Rules of Civil Procedure, service of papers, such as a notice of removal, is effective “upon mailing” to a party's last known address. Fed.R.Civ.P. 5(b)(2)(C). Thus, when Renewal mailed the Notice of Removal to Plaintiff on February 13, 2023, service was effective. The undersigned finds that this service was sufficiently “prompt” under the statute.
Renewal filed the Notice in state court fourteen days after this case was removed to federal court, and there is no evidence that any action took place in state court in the interim. ECF No. 112; see ECF No. 9-3. Plaintiff filed his Motion to Remand within twelve days of the removal, such that he was not prejudiced by any delay in the filing of the written notice in state court. See 28 U.S.C. § 1447(c) (providing that a plaintiff has “30 days after the filing of the notice of removal” to file a motion to remand based on procedural defects). On this record, the undersigned concludes that remand is not warranted. See Ligutom v. SunTrust Mortg., C10-05431, 2011 WL 445655, at *2 (N.D. Cal. Feb. 4, 2011) (finding that, “[g]iven the lack of a clear rule for [defendant] to follow,” defendant's approximately one-month delay in filing the notice of removal with the state court did not warrant remand; but granting motion to remand on alternative basis); Nixon, 368 F.Supp.2d at 640 (finding twenty-two day delay to be reasonably prompt); Parker v. Malone, No. CIV.A. 7:03CV00742, 2004 WL 190430, at *2 (W.D. Va. Jan. 15, 2004) (finding that defendant “promptly, within the meaning of § 1446(d), filed a copy of the notice of removal” with state court when he filed it twenty-two days after removal); see also Hibbard v. Foremost Ins. Co., No. 3:05-CV-01971, 2006 WL 8444785, at *2 (D.S.C. May 15, 2006) (finding no prejudice caused by delay where “[n]o significant action took place in state court in the interim that would upset the statutory purpose of Section 1446”).
III. Sanctions are not warranted.
Finally, to the extent Plaintiff is asking the Court to strike the Notice of Removal pursuant to Rule 11 or the Court's inherent power to control litigation, the undersigned recommends denying the motion. Although a federal court has the “inherent power to control the judicial process and litigation,” Nucor Corp. v. Bell, 251 F.R.D. 191, 194 (D.S.C. 2008), and to “sanction litigants for misbehavior in the judicial process,” White v. Raymark Indus., Inc., 783 F.2d 1175, 1177 (4th Cir. 1986), the “key to unlocking a court's inherent power is a finding of bad faith,” Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001) (citing Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)). Finding no evidence of bad faith in relation to any acts by Defendant Renewal's counsel, the undersigned concludes that Rule 11 sanctions are not appropriate at this time.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiff's Motion to Strike and Motion to Remand (ECF No. 9) be DENIED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).