Green v. City of Columbia

Decision Date23 May 2022
Docket NumberC. A. 3:21-cv-4085-JFA-PJG
PartiesSherman Green, Plaintiff, v. City of Columbia; and George Simpson, Defendants.
CourtU.S. District Court — District of South Carolina
ORDER

Joseph F. Anderson, Jr., United States District Judge

I. INTRODUCTION

Plaintiff Sherman Green (Plaintiff), through counsel brings this action under 42 U.S.C. § 1983 and the South Carolina Torts Claims Act, SC Code Ann. §§ 15-78-10 et seq. against Defendants City of Columbia (the City) and George Simpson. Plaintiff originally filed this action in the Richland County Court of Common Pleas where it was subsequently removed to this Court by the City. (ECF No. 1). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), the case was referred to the Magistrate Judge for pretrial proceedings. Shortly after Removal, Plaintiff moved to remand the case.

After reviewing Plaintiff's motion to remand the case to the Richland County Court of Common Pleas (ECF No. 13) and all responsive briefing, the Magistrate Judge assigned to this action prepared a thorough Report and Recommendation (“Report”), which opines that the motion to remand should be granted. (ECF No. 22). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards.

Defendants filed joint objections to the Report (ECF No. 26) and Plaintiff replied in opposition to those objections. (ECF No 28). Thus, this matter is ripe for review.

II. BACKGROUND

Although the facts and standards of law set forth in the Report are incorporated, the highly technical nature of this motion requires the Court to recite the salient facts. On November 15, 2021, Plaintiff filed this action in the Richland County Court of Common Pleas. (ECF No. 1-1). Plaintiff attempted to serve the summons and complaint on both defendants on November 18, 2021, by delivering the documents to the City of Columbia Clerk's Office. (ECF No. 21). On December 17, 2021, the City appeared in the state court action and attempted to remove the case to this Court but was prevented from filing the notice of removal due to technical difficulties. (ECF No. 20). The next business day, December 20, 2021, the City filed the notice of removal in this Court. Id. The notice of removal does not specify whether Defendant Simpson had been served or whether he consented to removing the action. (ECF No. 1). Defendant Simpson filed an answer in state court minutes after the notice of removal was filed to avoid default. (ECF No. 22). On December 21, 2021, the City filed a copy of the notice of removal in state court. Id. The following day, December 22, 2021, Simpson filed an answer in this Court. (ECF No. 10). Plaintiff then filed the instant motion to remand this matter to state court on January 19, 2022. (ECF No. 13).

III. STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). A district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge's Report to which an objection is made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W. Virginia Bd of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Magistrate Judge's Report, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Thus, the Court must only review those portions of the Report to which Petitioner has made a specific written objection. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).

“An objection is specific if it ‘enables the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.' Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A specific objection to the Magistrate Judge's Report thus requires more than a reassertion of arguments from the complaint or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must “direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

“Generally stated, nonspecific objections have the same effect as would a failure to object.” Staley v. Norton, No. 9:07-cv-00288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991)). The Court reviews portions “not objected to-including those portions to which only ‘general and conclusory' objections have been made-for clear error.” Id. (citing Diamond, 416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47) (emphasis added).

IV. DISCUSSION

As stated above, the relevant facts and standards of law on this matter are incorporated from the Report. Defendants jointly submitted four objections to the Report, arguing that the Magistrate Judge erred in the following particulars:

(1) by concluding that Defendant Simpson, who had not been properly served at the time Defendant City removed the action, was required to file his consent or join in the City's notice of removal within thirty days of service upon him to withstand Plaintiff's Motion to Remand; (2) by concluding that Defendant Simpson has not sufficiently demonstrated his consent to proceed in federal court despite numerous filings, including Rule 26.01 Interrogatory responses averring that federal court was the appropriate venue to litigate this case; (3) by concluding that any such lack of consent cannot be cured; and, (4) by failing to consider the totality of the circumstances.

(ECF No. 26). The Court will address each objection to the Magistrate Judge's Report.

1. Simpson was Required to File his Consent or Join the Notice of Removal

The Defendants' first objection to the Report is that the Magistrate Judge erroneously concluded that Simpson's formal consent was required to withstand Plaintiff's motion to remand. Defendants aver that the Magistrate Judge made four critical mistakes in reaching this conclusion.

A. Requirements of the Removal Statute

Defendants claim that there is no requirement that after-served defendants must consent to the removal action once a defendant who had previously been properly joined and served removes the action. In support, Defendants cite that [w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). They contend that § 1446(b)(2)(A) does not include any consent requirement for defendants who are served after the action has been removed (“after-served defendants). Thus, they conclude that the only consent required for removal is from those defendants properly joined and served at the time of removal. Moreover, they suggest that after-served defendants who do not wish to litigate in federal court have the option to remand the case once they have been served.

However, the “rule of unanimity” requires the unanimous consent of all defendants properly joined and served to effectuate removal. The language of “properly joined and served defendants at the time of removal” is nowhere in the statute. See 28 U.S.C. § 1446(b)(2)(A). Therefore, an after-served defendant has thirty days from the time they are properly joined or served to consent to the removal. To ignore this necessity would be in contradiction with the rule of unanimity and would excuse any after-served defendant from the required unanimous consent to litigate in federal court after the plaintiff has chosen to bring the action in state court.

B. Application of McKinney and Barbour

Second, Defendants object to the Magistrate Judge's reliance on McKinney v. Bd. of Trustees of Mayland Cmty. Coll. and Barbour v. Int'l Union on the basis that those cases are no longer good law. 955 F.2d 924 (4th Cir. 1992); 640 F.3d. 599 (4th Cir. 2011). They contend that any reliance on those cases was erroneous because Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63 (“JVCA”) after these opinions were published. The Report cites the Fourth Circuit's McKinney intermediate rule as applicable when multiple defendants are served at different times and that it stands for two propositions.[1] The Report acknowledges that the first proposition has been abrogated by the JVCA; however, the second proposition remains precedential regarding the time from which a non-removing defendant's consent must be provided or suffer remand. The JVCA codified a version of the rule of unanimity in § 1446(b)(2)(A) and established the last-served defendant rule.[2]

Defendants argue that the JVCA codification abrogated the entirety of McKinney and Barbour. They claim that the JVCA abrogated the second proposition based on the language of § 1446(b)(2)(A) and there is no requirement for Simpson to file a notice of consent following his post-removal service of process. Moreover, they stress that 28 U.S.C. § 1448 provides a defendant served post-removal with the opportunity to move to remand if that defendant does not want to proceed in federal court. Defendants cite to Lewis v. Rego Co., where § 1448 serves only as a preservation for the right to remand for an after-served defendant rather than creating...

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