Marlboro Elec. Coopertive v. Cent. Elec. Power Coop., C. A. 4:20-cv-4386-SAL

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtSherri A. Lydon United States District Judge
PartiesMarlboro Electric Cooperative, Inc., Plaintiff, v. Central Electric Power Cooperative, Inc. Defendant.
Docket NumberC. A. 4:20-cv-4386-SAL
Decision Date07 December 2022

Marlboro Electric Cooperative, Inc., Plaintiff,

Central Electric Power Cooperative, Inc.

C. A. No. 4:20-cv-4386-SAL

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

December 7, 2022


Sherri A. Lydon United States District Judge

This matter is before the court on a Motion to Sever and Dismiss or Remand or for Entry of Final Judgment filed by Plaintiff Marlboro Electric Cooperative. [ECF No. 103.] In its motion, Marlboro asks the court to take one of three alternative actions allowing for an immediate appeal of its prior order granting summary judgment: (1) sever Central's remaining counterclaim and then dismiss it without prejudice for lack of jurisdiction; (2) refuse to exercise supplemental jurisdiction and remand the counterclaim back to the state court; or (3) enter final judgment against Marlboro on the causes of action alleged in the complaint, thus allowing an immediate appeal. [ECF No. 103-1, pp. 1-2.] After review of the parties' briefing and relevant case law, the court denies Marlboro's motion for the reasons set forth in detail below.


The factual background of the case is set forth in greater detail in the court's order granting summary judgment, ECF No. 95, and its order denying Marlboro's Motion for Reconsideration, ECF No. 124. Relevant to this order, Marlboro filed the Motion to Sever and Dismiss or Remand or for Entry of Final Judgment alongside its Motion for Reconsideration on April 15, 2022. [ECF No. 103.] Central filed a Response in Opposition on April 21, 2022. [ECF No. 105.] Following a stay entered by the court to allow the parties an opportunity to resolve any outstanding issues, ECF


No. 106, Marlboro filed its reply to Central's Response on September 6, 2022. [ECF No. 121.] The matter is now ripe for resolution by the court.


Marlboro's ultimate goal is simple: it wishes to immediately appeal the court's order granting summary judgment. The order, however, is interlocutory and thus not appropriate for an appeal. To get around this general rule against interlocutory appeals, Marlboro argues for one of three alternative actions by the court: sever and dismissal, remand, or entry of final judgment. The court addresses each in turn.

I. The court declines to sever Central's counterclaim.

Marlboro first argues the court should sever Central's counterclaim pursuant to Fed.R.Civ.P. 21 and then dismiss it for lack of subject matter jurisdiction. [ECF No. 103-1, p. 5.] Rule 21 provides courts “may . . . sever any claim against a party.” Fed.R.Civ.P. 21. While courts generally have “unfettered discretion in determining whether or not severance is appropriate” they should consider four factors when reaching their decision:

(1) whether the issues sought to be tried separately are significantly different from one another; (2) whether the separable issues require different witnesses and different documentary proof; (3) whether the party opposing severance will be prejudiced if it is granted; and (4) whether the party requesting severance will be prejudiced if the claims are not severed

Grayson Consulting, Inc. v. Cathcart, No. 2:07-CV-02992-DCN, 2014 WL 1512029, at *2 (D.S.C. Apr. 8, 2014) (citations omitted). Marlboro argues that all four Grayson factors weigh in favor of severing Central's counterclaim. [ECF No. 103-1, p. 5.] The court does not agree and finds each factor weights in favor of not severing the counterclaim.

First, while the specifics of Marlboro's claims are different than Central's counterclaim, they are fundamentally of the same character-they require the interpretation of the same agreements,


the Wholesale Power Contract and Central's Bylaws. Indeed, both Marlboro's third cause of action and Central's counterclaim are breach of contract claims. [ECF No. 1-1, pp. 18-20]; [ECF No. 13, pp. 17-20.] While the facts forming the basis of each alleged breach are different, the nature of the actions cannot be considered “significantly different” to warrant severance because they require the interpretation of the same agreements and involve the same substantive state law governing contract interpretation.

Similarly, the second Grayson factor weighs in favor of not severing the counterclaim because the witnesses and evidence required for Marlboro's claims and Central's counterclaim significantly overlap. Indeed, Marlboro concedes the overlap of witnesses in its Motion. See [ECF No. 103-1, p. 6 (“there may be some overlap of witnesses”).] Yet, Marlboro claims “any trial will involve completely different evidence.” Id. However, this simply cannot be the case when both sets of claims relate to a breach of the same agreement-the Wholesale Power Contract. While the evidence may differ with respect to each specific alleged breach, the claims all require interpretation of the same primary document. Thus, this factor weighs in favor of retaining Central's counterclaim.

Moreover, the third and fourth Grayson factors weigh heavily against severing Central's counterclaim. At the time Marlboro filed its Motion to Sever, Central's counterclaim had been pending before the court for 15 months. [ECF No. 105, p. 2.] Now, the counterclaim has been pending before the court for almost two years. Furthermore, both parties moved to temporarily stay the case and engaged in the exchange of information...

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