Opinion
C. A. 3:22-cv-3418-TMC-MHC
04-14-2023
Dennis Gallipeau, Plaintiff, v. State Law Enforcement Division, Sheriff of Richland County, and Caraly Alvarez, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This action was removed to this Court from state court on October 4, 2022. ECF No. 1. Before the Court is Plaintiff's Motion to Remand. ECF No. 9. Defendants filed Responses, ECF Nos. 16 & 18, and Plaintiff filed a Reply, ECF No. 20. Also before the Court is Plaintiff's Motion to Strike the Notice of Removal, in which Plaintiff argues, among other things, that the Notice of Removal is defective and violates 28 U.S.C. § 1446. ECF No. 10. Defendants filed Responses in Opposition to the Motion to Strike the Notice of Removal, ECF Nos. 17 & 19, and Plaintiff filed a Reply, ECF No. 21. Both Motions are ripe for review. This Report and Recommendation is entered for review by the District Judge.
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 Civil Rule 73.02(B)(2), D.S.C.
PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se, originally filed this action in December 2020 in the Court of Common Pleas of Richland County, South Carolina, alleging two state-law claims. See ECF No. 30-1. After the case was removed to this Court on January 13, 2021, the Court granted Plaintiff's first motion to remand on March 9, 2021, for lack of subject matter jurisdiction. See Gallipeau v. State L. Enf't Div., No. 3:21-CV-136-TMC-MHC, 2021 WL 885280, at *1 (D.S.C. Feb. 16, 2021), report and recommendation adopted sub nom. Gallipeau v. State L. Enf't Div., Richland Cnty. Sheriff's Dep't, No. 3:21-CV-136-TMC, 2021 WL 880467, at *1 (D.S.C. Mar. 9, 2021).
The case proceeded in state court. Count 1 of the original Complaint asserted a state law claim against the State Law Enforcement Division (“SLED”) and the Richland County Sheriff's Department (“RCSD”), while Count 2 asserted a state law claim against Caraly Alvarez. See ECF No. 30-1. In October 2021, RCSD and Alvarez filed a motion for judgment on the pleadings, arguing in part that “RCSD is not a legal entity . . . amenable to suit and is not the proper party defendant in this case.” ECF No. 20-1 at 3 ¶ 18. Plaintiff was served with this motion on or around March 4, 2022. Id. at 4.
On March 11, 2022, Plaintiff filed a motion to amend his complaint and a proposed amended complaint, in which he replaced Defendant RCSD with Defendant Sheriff of Richland County. ECF No. 31-1. The proposed amended complaint also added a claim against Defendant Alvarez pursuant to 42 U.S.C. § 1983 for alleged violations of Plaintiff's constitutional rights. See id. at 12-13 ¶¶ 35-43.
On September 21, 2022, the state court held a hearing on Plaintiff's motion to amend the complaint, the motion for judgment on the pleadings, and various pending discovery motions. See ECF No. 30-1 at 66-68. According to the Order of the state court, signed on September 21 and entered on September 22, 2022:
Plaintiff, appearing Pro Se, and Defendants, represented by [counsel], were present. At the hearing, Defendants consented to Plaintiff's Motion to Amend Complaint. Therefore, Defendant's Motion for Judgment on the Pleadings is moot as a result of this consent. Defendants then informed the Court of their intention to remove
this case to federal court based on the additional claims asserted in Plaintiff's proposed Amended Complaint. Plaintiff informed the Court of his intention to file his Amended Complaint the day after the hearing concluded. Therefore, Plaintiff's discovery motions are held in abeyance pending the resolution of this matter on the federal level.Id.
Plaintiff filed his Amended Complaint, which was the same as his proposed amended complaint, naming SLED, Alvarez, and the Sheriff of Richland County as Defendants. See ECF No. 1-2. The certificate of service indicates that Plaintiff served the Amended Complaint upon counsel for SLED and counsel for Defendants Alvarez and Sheriff of Richland County via mail sent September 22, 2022. ECF No. 1-3. The Amended Complaint was file stamped by the state court on September 27, 2022. See ECF No. 1-2 at 1.
On October 4, 2022, RCSD and Defendant Alvarez filed a Notice of Removal with an attached Consent signed by counsel for Defendant SLED. ECF Nos. 1 & 1-1. The Notice of Removal represented the following: “All Defendants named herein consent that this action be removed from the Court of Common Pleas in the County of Richland, State of South Carolina, to the United States District Court for the District of South Carolina.” ECF No. 1 at ¶ 5. According to the Notice of Removal, RCSD and Defendant Alvarez were served with the Amended Complaint on or about September 22, 2022. Id. at ¶ 4. That same day, Defendant SLED was served by mail with the Amended Complaint. ECF No. 1-1.
Defendant SLED filed an Answer on October 7, 2022. ECF No. 8. On October 11, 2022, Plaintiff filed a Motion to Remand and a Motion to Strike the Notice of Removal. ECF Nos. 9 and 10. That same day, Defendant Alvarez and Defendant Sheriff of Richland County filed an Answer to the Amended Complaint. ECF No. 11.
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 both his Motion to Remand and his Motion to Strike the Notice of Removal at the same time and within thirty days after the case was removed to federal court. While Plaintiff raises arguments in favor of remand in both motions, he also raises non-removal arguments in his Motion to Strike the Notice of Removal. Thus, the undersigned will first address the arguments related to the propriety of removal and then consider the additional, non-removal arguments raised in the Motion to Strike the Notice of Removal.
I. Plaintiff's Arguments in Favor of Remand
In his Motion to Remand, Plaintiff concedes that the Court has subject matter jurisdiction over the § 1983 claim against Defendant Alvarez; however, he nonetheless requests that the Court remand the case to state court on jurisdictional grounds. ECF No. 9 (conceding that the Amended Complaint adds a claim under 42 U.S.C. § 1983 and noting that state courts have “concurrent jurisdiction” with federal courts over § 1983 actions). In his Motion to Strike the Notice of Removal, Plaintiff argues that the Notice of Removal is defective and runs afoul of 28 U.S.C. § 1446, such that the case should be remanded. ECF No. 10. Because the Motion to Strike the Notice of Removal was filed at the same time as the Motion to Remand and raises arguments typically found in a motion to remand, the undersigned construes this portion of the Motion to Strike the Notice of Removal to be a motion to remand on procedural grounds. See United States v. Brown, 797 Fed.Appx. 85, 89-90 (4th Cir. 2019) (“Federal courts are obliged to liberally construe filings by pro se litigants. That duty extends to recharacterizing a filing to which a pro se litigant has attached the wrong label, allowing courts to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis.”) (internal citations and quotation marks omitted).
A. The Court has subject matter jurisdiction over this case.
Although Plaintiff concedes that this Court has jurisdiction over his § 1983 claim, Plaintiff moves to remand this case to state court, arguing that the case should be remanded because federal courts “do not exercise exclusive jurisdiction over Section 1983 claims,” he chose the state court forum, and the other two claims in the case are state law claims alleged against all Defendants pursuant to the South Carolina Tort Claims Act. ECF No. 9 at 1-2.
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. As Plaintiff acknowledges in his Motion to Remand, the Amended Complaint added a claim against Defendant Alvarez pursuant to 42 U.S.C. §1983. This § 1983 cause of action clearly arises under federal law, such that the requirements of federal question jurisdiction are satisfied. Moreover, because the Court has subject matter jurisdiction over the § 1983 claim, “the entire case met the criteria for removal.” Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005); see also Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 624 (2002) (holding that the state waived its Eleventh Amendment immunity from suit in federal court on state law claims for money damages when it voluntarily joined in removing the case to federal court). Finally, as Plaintiff concedes in his Reply, his “claims brought under the South Carolina Tort Claims Act, and under 42 U.S.C. § 1983, . . . rely on the same basic facts.” ECF No. 20 at 2. Because the asserted state law causes of action are so related to the federal cause of action that they form part of the same case or controversy, the Court can exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). Therefore, to the extent Plaintiff moves to remand all or some of his claims to state court for lack of subject matter jurisdiction, the undersigned finds that remand is not warranted on that basis. Accordingly, the undersigned recommends that Plaintiff's Motion to Remand on jurisdictional grounds (ECF No. 9) be denied.
B. This case should be remanded because doubts remain regarding the propriety of removal.
In his Motion to Strike the Notice of Removal, liberally construed as a motion to remand on procedural grounds, Plaintiff argues that the case should be remanded because the removal was procedurally defective. ECF No. 10. Specifically, he contends that Defendant Sheriff did not join in the removal and that Defendants failed to promptly notify the state court or Plaintiff of the Notice of Removal, as required under 28 U.S.C. § 1446. ECF No. 10-1 at 1-2.
1. Removal Procedure
28 U.S.C. § 1441(a) provides that a “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 or the defendants.” The relevant procedure for removing a case to federal court is as follows:
(a) Generally. --A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending 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.
(b) Requirements; generally.-(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
(2)(A) When 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.
(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
(C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
(3) Except as provided in subsection (c) [regarding removal based on diversity of citizenship], if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
* * *
(d) Notice to adverse parties and State court.--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.28 U.S.C. § 1446(a)-(b), (d).
“The Supreme Court has construed these statutes to require all defendants in a case to join in or consent to removal, creating the so-called ‘rule of unanimity.'” Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013). The Fourth Circuit has recognized that “the rule of unanimity is consistent with [the court's] obligation to construe removal jurisdiction strictly because of the significant federalism concerns implicated.” Id. (internal quotation marks omitted). In a multiple-defendant case, “a notice of removal signed and filed by an attorney for one defendant representing unambiguously that the other defendants consent to the removal satisfies the requirement of unanimous consent for purposes of removal.” Mayo v. Bd. of Educ. of Prince George's Cty., 713 F.3d 735, 742 (4th Cir. 2013). When multiple defendants are served at different times, such that some defendants are served after the notice of removal was filed, then “an after-served defendant has thirty days from the time they are properly joined or served to consent to the removal.” Green v. City of Columbia, No. 3:21-CV-4085-JFA-PJG, 2022 WL 1617446, at *3 (D.S.C. May 23, 2022) (adopting report and recommendation recommending remand and rejecting defendants' argument that only those defendants properly joined and served at the time of removal must consent to removal, noting that the statute does not contain such a limitation, and explaining that “the ‘rule of unanimity' requires the unanimous consent of all defendants properly joined and served to effectuate removal” (emphasis in original)).
2. Defendants Have Not Established Timely, Unanimous Consent.
In this case, the Notice of Removal did not unambiguously state that Defendant Sheriff consented to removal. Indeed, there is no mention of Defendant Sheriff at all in the Notice of Removal. See ECF No. 1. The Notice of Removal states that “[a]ll Defendants named herein consent that this action be removed.” ECF No. 1 at ¶ 5. However, while the Notice of Removal names SLED, Alvarez, and RCSD as Defendants, it does not name the Sheriff of Richland County in the caption or anywhere else in the Notice of Removal. See id.; see also ECF No. 1-1 (Consent of SLED). Thus, the Notice itself is not sufficient to satisfy the rule of unanimity. See Simon v. Regal Inv. Advisors LLC, No. 3:16CV00090, 2017 WL 1628436, at *4 (W.D. Va. Apr. 28, 2017) (“Because all of the defendants did not unambiguously join in the original notice of removal, that notice, by itself, is not sufficient to satisfy the rule of unanimity.”); Easter-Greene v. Verizon Maryland, LLC, No. CIV.A. MJG-14-1040, 2014 WL 3723228, at *4 (D. Md. July 23, 2014) (finding notice of removal defective where it failed to assert that co-defendant joined in or consented to removal, nor did it “refer to, or explain, the absence of such consent”).
Defendants argue that Defendant Alvarez did not improperly refer to RCSD in the caption and body of the Notice of Removal because the original Summons and Complaint filed in December 2020 named RCSD as a Defendant, such that “[i]t was actually the Plaintiff who erroneously changed the name of the Defendant to ‘Sheriff of Richland County' when he filed his Amended Complaint on September 27, 2022.” ECF Nos. 17 at 2; 19 at 2. The undersigned is not persuaded by Defendants' argument that Plaintiff “erroneously” substituted the Sheriff for RCSD when he filed the Amended Complaint in state court in September 2022. Review of the state court documents in the record before the Court reveals that Plaintiff filed a Motion to Amend the Complaint in state court in March 2022-shortly after he was served with RCSD's Motion for Judgment on the Pleadings asserting that RCSD was not a legal entity amenable to suit or a proper party defendant-and, at that time, Plaintiff submitted a proposed Amended Complaint that named the Sheriff of Richland County, but not RCSD, as a Defendant. See ECF Nos. 20-1; 31-1. The state court held a hearing on the Motion to Amend the Complaint in September 2022, at which time Defendants consented to the Motion. See ECF No. 30-1 at 66. The state court granted Plaintiff's motion, and he filed the same Amended Complaint that he proposed in March. Based on this record, there is no indication that Plaintiff named the Sheriff in error.
Because the Sheriff did not join in the Notice of Removal, the question before the Court is whether he otherwise provided timely consent to removal. Pursuant to 28 U.S.C. § 1446(b)(2), Defendant Sheriff had thirty days after he was served to file his own Notice of Removal or to indicate his consent to removal. 28 U.S.C. § 1446(b)(2)(B)-(C); see Gates at Williams-Brice, No. 2016 WL 4646258, at *7 (concluding that “the deadline for indicating consent of co-defendants is the later of when the notice of removal is due or within thirty days of when the consenting defendant was first served”).
In response to a request for supplemental briefing regarding service upon the Sheriff, Plaintiff stated that although he does not remember everything that was said during the state court hearing on September 21, 2022, “he does seem to recall attorney [for RCSD] did agree, when asked by the court, to accept service of the amended complaint on behalf of the Sheriff.” ECF No. 37 at 1 n.1. Plaintiff further notes that in the Sheriff's Answer to the Amended Complaint, filed in federal court on October 11, 2022, the Sheriff did not raise a defense of insufficient process or insufficient service of process. Id. at 2. Thus, Plaintiff argues, counsel agreed at the hearing to accept service upon the Sheriff, who waived any defenses regarding service when he filed his Answer. Id. at 3.
In response to the request for supplemental briefing, counsel for Defendant Alvarez, Defendant Sheriff, and RCSD stated that counsel was served with a copy of the Amended Complaint and a Certificate of Service on September 27, 2022, via the Richland County Clerk of Court's electronic filing system. ECF No. 35 at 1. Counsel further argued:
This assertion differs somewhat from that made in the Notice of Removal, where the same counsel asserted that RCSD and Defendant Alvarez had been served with the Amended Complaint via mail on or about September 22, 2022. ECF No. 1 at ¶ 4.
To the extent that the Amended Complaint [Dkt 1-2] attempted to change the party against whom the claims were asserted, the Sheriff of Richland County has never been properly served with process, as service on counsel is not proper for a newly added party. Nonetheless, insofar as this distinction matters, the undersigned notes that the Sheriff of Richland County and the Richland County Sheriff's Department are one entity represented by the undersigned counsel. Thus, consent of the Sheriff, as a newly added party that has not been properly served, was not required for removal to be proper. See, 28 U.S.C. § 1446(b)(2)(A) (The rule of unanimity provides that “all defendants who have been properly joined and served must join[] in or consent to the removal of the action.”) (Emphasis added)[.]ECF No. 35 at 2. For its part, SLED filed a supplemental brief stating that, in its view, the Amended Complaint's use of “Sheriff of Richland County” was “simply a change in how the same party is identified, rather than the naming of a new party-defendant,” such that SLED maintains that the Defendant now identified as the Sheriff joined with the other Defendants in timely removing the case to federal court. ECF No. 36.
None of the parties provided any evidence or cited any case law or statutory support for their arguments related to service. Plaintiff did not produce any evidence to support his assertion that counsel for RCSD agreed to accept service for the Sheriff. While it is clear from the state court's order that Defendants consented to Plaintiff's motion to amend the complaint, the order is silent as to service. Defendant Sheriff does not dispute that Plaintiff served him via service upon counsel prior to removal, but he suggests that such service was improper. Although the Sheriff argues that “service on counsel is not proper for a newly added party,” he does not cite to any rule governing service. And none of the Defendants cited case law to support their assertion that the Sheriff and RCSD “are one entity,” such that RCSD's consent to the Notice of Removal is sufficient to constitute the Sheriff's consent. See ECF No. 35 at 2. Finally, no party has pointed the Court to anywhere in the record showing the Sheriff's unambiguous consent to removal within thirty days of his service, notwithstanding that he filed an Answer in this action on October 11, 2022. See BRAVO! Facility Serv., Inc. v. Kaiser Found. Health Plan of Mid-Atl. States, Inc., 256 F.Supp.3d 653, 658 (E.D. Va. 2017) (finding removal procedurally deficient and remanding case where notice of removal was ambiguous as to whether all defendants consented to removal and the later-filed consents of three defendants were untimely); see also Green, 2022 WL 1617446, at *6 (rejecting defendants' request to cure purported procedural defects in the Notice of Removal related to consent and explaining that “Fourth Circuit courts have held that amendments and supplemental corrections are not available for a failure of the party to unambiguously allege consent upon removal, nor may an after-served defendant untimely provide consent to the removal”).
The undersigned notes that the South Carolina Rules of Civil Procedure appear to contemplate acceptance of service by an attorney as the equivalent to personal service. See Langley v. Graham, 472 S.E.2d 259, 261 (S.C. Ct. App. 1996) (explaining that Rule 4(j), S.C.R.C.P., is “a recognition of the long standing practice that acknowledgement or acceptance of service is equivalent to personal service”); see also SCRCP 4(j) (“No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted.”). Similarly, the Supreme Court of South Carolina has explained that “parties are generally permitted to agree to particular methods of service or waiving service altogether.” White Oak Manor, Inc. v. Lexington Ins. Co., 753 S.E.2d 537, 541 (S.C. 2014); see Fin. Fed. Credit Inc. v. Brown, 683 S.E.2d 486, 491 (S.C. 2009) (“[W]here service is accomplished in a manner consented to by the defendant, service of process is valid and a court has jurisdiction over the defendant for purposes of entering judgment.”).
In their Supplemental Reply, Defendants Sheriff and Alvarez argue that “even if there is some technical error in the notice of removal relating to the proper name of the parties, the Court can simply permit an amendment to the Notice of Removal.” ECF No. 35 at 2 n.1 (citing 28 U.S.C § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”)). However, a court in this District recently rejected a similar argument, finding that a procedural defect related to consent “is not analogous to other cases . . . where the court allowed amendment of the notice of removal to allege missing facts concerning diversity.” Green, 2022 WL 1617446, at *6-7 (“It is a procedural defect[, and not jurisdictional,] when a defendant fails to join in removal or unambiguously consent within the thirty-day time-period.”).
In general, the burden of showing that removal is proper is placed on the party seeking removal, see Mulcahey, 29 F.3d at 151, and it is well established that courts should resolve all doubts about the propriety of removal in favor of retained state jurisdiction, Marshall, 6 F.3d at 232. This rule “applies to procedural deficiencies . . . so long as the procedural challenge is timely raised by a party.” Gates at Williams-Brice, 2016 WL 4646258, at *3. Thus, “[t]o avoid remand, the removing party must establish by a preponderance of the evidence that removal jurisdiction exists and that removal is otherwise procedurally proper.” BRAVO! Facility Serv., Inc., 256 F.Supp.3d at 658 n.7. As stated above, Plaintiff raised his procedural challenge within thirty days of removal, the Notice of Removal did not represent unambiguously that Defendant Sheriff consented to the removal or otherwise explain why his consent was not included, and Defendant Sheriff did not join in the removal petition or otherwise indicate his consent. Because it is not clear, based on the record presently before the Court, whether removal was procedurally proper, the undersigned finds that the doubts should be resolved in favor of remand. Accordingly, the undersigned recommends that the Court grant Plaintiff's Motion to Strike the Notice of Removal (ECF No. 10), construed as a motion to remand on procedural grounds, and remand this action to state court.
Plaintiff also asserts that as of one week following removal to this Court, written notice of the removal had not been filed with the state court or provided to Plaintiff, in violation of 28 U.S.C. § 1446(d). The undersigned agrees with Defendants, however, that the brief delay in filing a copy of the Notice of Removal in state court does not warrant remand. See ECF Nos. 17 at 2; 19 at 2. The removal statute requires that the removing defendants give written notice of the notice of removal to all adverse parties and file a copy of the notice with the clerk of such State court “[p]romptly after the filing of such notice of removal.” 28 U.S.C. § 1446(d). The statute does not define the term “promptly.” Here, Defendants filed the copy in state court within three weeks of the removal, and Plaintiff filed his Motion to Remand within a week of removal, such that he was not prejudiced by any delay in his receipt of written notice or the filing of the written notice in state court. On this record, the undersigned concludes that remand is not warranted on this basis. See Ligutom v. SunTrust Mortg., C10-O5431, 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; however, granting motion to remand because one defendant failed to timely join or consent to the Notice of Removal); Nixon v. Wheatley, 368 F.Supp.2d 635, 640 (E.D. Tex. 2005) (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).
II. Plaintiff's Remaining Arguments in the Motion to Strike
In addition to the arguments raised by Plaintiff in support of remand, Plaintiff also asserted the following non-removal arguments in his Motion to Strike the Notice of Removal: (A) Defendant Alvarez violated Local Rule 26.01 by failing to serve Plaintiff with her responses to the Court's interrogatories; and (2) Defendants Alvarez and SLED violated Local Rule 26.01 by failing to disclose a known prior related action in their answers to the Court's interrogatories. ECF No. 10. Plaintiff asks that the Court sanction Defendants for these alleged violations by striking the notice of removal and closing out the case. ECF No. 10-1 at 3.
To the extent Plaintiff is asking the Court to strike the Notice of Removal pursuant to Rule 12(f), the motion should be denied. Rule 12 governs responsive pleadings to a complaint or other claim for relief, and Rule 12(f) only allows the court to strike “from a pleading any insufficient defense or redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Because a notice of removal is not a “pleading” under the rules, this Court lacks the power to strike it under Federal Rule of Civil Procedure 12(f). See Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199 (4th Cir. 2008) (explaining that “a notice of removal is not a pleading as defined by Federal Rule of Civil Procedure 7(a)”).
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,” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). Finding no evidence of bad faith in relation to the alleged violations of Local Rule 26.01, the undersigned concludes that Rule 11 sanctions are not appropriate in this matter at this time.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiff's Motion to Remand on jurisdictional grounds (ECF No. 9) be DENIED; that Plaintiff's Motion to Strike the Notice of Removal, construed as a motion to remand on procedural grounds (ECF No. 10), be GRANTED; and that the case be REMANDED to state court.
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).