Wilkins v. Rogers, s. 77-1588
| Decision Date | 02 August 1978 |
| Docket Number | Nos. 77-1588,77-1938,s. 77-1588 |
| Citation | 581 F.2d 399 |
| Parties | Chilton M. WILKINS, Appellant, v. Beverly W. ROGERS, Nathan Rosen, Carl Knight, Louis Rosen, Harry M. Lightsey, Sr., L. Marion Gressette, Clyde A. Eltzroth, John Hamilton Smith, Sidney B. Jones, Jr. and Barbara Waring, Appellees. Beverly W. ROGERS, Appellee, v. Chilton M. ROGERS (now Wilkins), Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Bill R. Craig, Hartsville, S. C. (Floyd & Craig, Hartsville, S. C., on brief), for appellant in 77-1938.
Michael R. Geeson, Jr., Winston-Salem, N. C., on brief, for appellant in 77-1588.
Ellison D. Smith, IV, Charleston, S. C., for appellees Nathan Rosen, Beverly W. Rogers, Sidney B. Jones, Jr., Barbara Waring and John Hamilton Smith.
Katherine W. Hill, Asst. Atty. Gen., Columbia, S. C., for appellees Clyde A. Eltzroth and Louis Rosen.
Lawrence M. Gressette, Jr., St. Matthews, S. C., on brief, for appellee L. Marion Gressette.
F. Lee Prickett, Jr., St. Matthews, S. C., on brief, for appellee L. Marion Gressette and appellee in 77-1938.
Thomas E. McClutchen and Herbert W. Hamilton, Columbia, S. C. on brief, for appellee Harry M. Lightsey, Sr.
L. Marion Gressette, Gressette & Gressette, St. Matthews, S. C., on brief, for appellee in 77-1938.
Before WIDENER and HALL, Circuit Judges, and HOFFMAN, * District Judge.
These appeals arise from six years of litigation in the courts of South Carolina between Chilton M. Rogers Wilkins and her former husband, Beverly W. Rogers. Wilkins alleges that Rogers, three members of the South Carolina judiciary, four private attorneys, a county sheriff, and a former friend have conspired to defraud her and deprive her of property. Eight issues are presented for review, including the scope of federal jurisdiction over domestic relations disputes, the abstention doctrine, substantive civil rights claims under 42 U.S.C. §§ 1983, 1985(3), and 1986, and several procedural matters.
Wilkins and Rogers separated on October 27, 1970, after twenty years of marriage, and Wilkins obtained a divorce decree in the Virgin Islands on February 15, 1972. Three separate lawsuits were commenced in the South Carolina courts. The first ("Suit 1") was instituted by Rogers, to determine title to a parcel of real estate purchased during the marriage. The second ("Suit 2"), instituted by Wilkins, was for repayment of money allegedly advanced to Rogers during the marriage, and for support and maintenance of the couple's children. The third ("Suit 3"), also instituted by Wilkins, was a "claim-and-delivery" action for return of personal property allegedly owned by Wilkins but kept by Rogers after the divorce. 1
Wilkins' claims against Nathan Rosen, Gressette, Smith, and Jones, four attorneys who represented Rogers during different stages of the litigation, arise from these suits. In particular, she alleges that Nathan Rosen failed to serve her with a copy of the complaint in Suit 1; a summons only was served upon defendant Waring, whose relationship to Wilkins is unclear, at Wilkins' place of business. Although an order of default was taken against Wilkins in Suit 1, no judgment was entered. Rather, Wilkins' attorney entered into a stipulation with Rogers' new counsel that the suit be consolidated with the two suits instituted by Wilkins and tried before defendant Lightsey, a retired Special Master in Equity. Lightsey found in Wilkins' favor on the issue of ownership of the real estate and on the issues in the claim-and-delivery action. He found in Rogers' favor on the claims for money allegedly owed to Wilkins. Both sides filed exceptions to the Special Master's report. In the meantime, Rogers petitioned the Court of Common Pleas of Dorchester County for an injunction restraining Wilkins from removing timber from the real estate involved in Suit 1 until a decision had been rendered on the appeal. The judge of that court, defendant Louis Rosen, a brother of Nathan Rosen, granted Rogers' motion for an injunction, and remanded the case to a Special Referee for further findings. Wilkins took an appeal to the South Carolina Supreme Court. Judge Rosen then disqualified himself from further participation in the case, and Wilkins' motion to dismiss Suit 1 was heard by defendant Eltzroth. Judge Eltzroth found that, notwithstanding defendant Nathan Rosen's failure to serve Wilkins with a complaint in the first suit, she had waived any jurisdictional objections through counsel's stipulation, above noted, and by her active participation in the three suits. Judge Eltzroth denied Wilkins' motion to dismiss.
On June 7, 1976, Wilkins removed Suit 1 to the United States District Court for the District of South Carolina, invoking federal question and diversity of citizenship jurisdiction. 28 U.S.C. § 1441(a). On October 4, 1976, Wilkins removed Suit 2, invoking the civil rights removal statute, 28 U.S.C. § 1443(1), and also alleging original jurisdiction under the federal question and diversity of citizenship statutes. 28 U.S.C. §§ 1331(a), 1332. In the second petition for removal, she also sought to have the district court consider the constitutionality of several South Carolina domestic relations statutes, enjoin the ongoing South Carolina litigation, and enjoin the enforcement of the state court injunction forbidding her from removing timber from the land which was the subject of Suit 1. Wilkins also instituted an action under 42 U.S.C. §§ 1983, 1985(3), and 1986, naming Rogers, Nathan Rosen, Gressette, Smith, Jones, Waring, Lightsey, Louis Rosen, Eltzroth, and Knight as defendants. She demanded $315,000 in damages.
In the first district court action, 77-1938, Judge Simons dismissed Wilkins petition for removal and remanded the case to the Dorchester County Court of Common Pleas. In the second district court action, 77-1588, Judge Hemphill dismissed Wilkins' complaint in its entirety, finding that removal was not authorized by the civil rights removal statute, that abstention was proper where Wilkins requested interference with the ongoing South Carolina litigation, and that Wilkins' claims for damages were not cognizable under 42 U.S.C. §§ 1983, 1985(3) or 1986. Wilkins made a motion for reconsideration, and then moved that Judge Hemphill recuse on grounds of bias and prejudice. Judge Hemphill denied the motion to reconsider and held that the motion for recusal was not properly raised. Wilkins appealed the decisions of both district courts, briefing eight issues, and we consolidated the cases for argument.
In the first appeal, 77-1938, we hold that we have no jurisdiction to review the district court's order remanding Suit 1 to the Dorchester County Court of Common Pleas. In the second appeal, 77-1588, we affirm the decision of the district court and find the assignments of procedural error to be without merit.
First. Suit 1, which Wilkins separately removed to district court, involved a dispute over title to real estate. Rogers had instituted the suit in state court on November 27, 1970; Wilkins' petition for removal was filed on June 7, 1976. On May 25, 1977, Judge Simons remanded the case to the Dorchester County Court of Common Pleas after finding that the petition was not timely filed, 28 U.S.C. § 1446(b), and thus the suit had been "removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c). The issue before us is whether we have jurisdiction to review the remand order in light of Thermtron Products, Inc v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).
28 U.S.C. § 1447(d) provides that "(a)n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . " Wilkins argues that, notwithstanding this language, Thermtron opens the door to review of any remand order which is alleged to be improper. We decline to read Thermtron this broadly. Thermtron held only that remand orders issued on grounds not authorized by 28 U.S.C. § 1447(c) are appealable; the Supreme Court, however, re-emphasized that "remand orders issued under § 1447(c) and invoking the grounds specified therein that removal was improvident and without jurisdiction are immune from review under § 1447(d)." 423 U.S. at 346, 96 S.Ct. at 590. The invocation of 28 U.S.C. § 1447(c) is proper where the district court finds that the petition for removal was not timely filed. Jennings v. Cantrell, 392 F.Supp. 563 (E.D.Tenn.1974); Perrin v. Walker, 385 F.Supp. 945 (E.D.Ill.1974). Therefore, we are governed by 28 U.S.C. § 1447(d) and have no jurisdiction over this appeal, 77-1938.
Finding that we lack jurisdiction in this matter, it is ordered that Wilkins' related motions, to dissolve and set aside Lis pendens, for temporary order of injunction, for an order authorizing Wilkins to enter upon and use land, for correction or modification of the record, and motion to strike, are hereby denied.
Second. While the petition for removal of Suit 1 was still pending before Judge Simons, Mrs. Wilkins attempted to remove Suit 2, a claim for repayment of money allegedly advanced to Rogers during the marriage and for support and maintenance of the couple's children. Wilkins alleged that she was a victim of unconstitutional sex-based discrimination sanctioned by the South Carolina court system. Judge Hemphill treated the action as a petition for removal under the Civil Rights Removal Statute, 29 U.S.C. § 1443(1), one of the many jurisdictional grounds cited by Wilkins. He dismissed this portion of the complaint after finding that removal was not authorized by the statute. 2
In Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1790, 16 L.Ed.2d 925 (1966), the Supreme Court set the parameters for removal under § 1443(1), stating that it must appear that the right allegedly denied the removal petitioner arises under a federal law " . . . providing...
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