Opinion
C/A No. 5:05-3609-MBS.
May 10, 2006
OPINION AND ORDER
Plaintiff Tarsha Perry, individually and as parent and guardian ad litem of her two minor children, filed this action in the Court of Common Pleas for the First Judicial Circuit (Orangeburg County), South Carolina, on August 10, 2005. Defendant Wal-Mart Stores, Inc. ("Wal-Mart") filed a notice of removal on December 29, 2005 on the grounds of diversity jurisdiction (Entry 1). Plaintiff filed "Plaintiffs Reply to Defendant Wal-Mart's Removal and Plaintiffs Notice to Return this Action to State Court" on January 24, 2006 (Entry 6). The court has construed Plaintiff's filing as a motion to remand. The court concludes that Plaintiff's motion should be granted.
I. FACTS
Plaintiff alleges in the complaint that Defendant Curtis Scott ("Scott") is a registered sex offender. Subsequent to his conviction for sexual assault, he was hired by Wal-Mart. According to Plaintiff, Scott fondled Jane Doe #1 while she was shopping at the Wal-Mart Supercenter in Orangeburg, South Carolina on July 3, 2004. Plaintiff alleges state law causes of action for assault and battery; negligence; negligent hiring, supervision, training, and retention; and negligent infliction of emotional distress.
II. DISCUSSION
The burden of establishing federal jurisdiction is placed upon the party seeking removal. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic Iron Steel Co., 257 U.S. 92 (1921)). Because removal jurisdiction raises significant federalism concerns, the court must strictly construe removal jurisdiction. Id. (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941). If federal jurisdiction is doubtful, a remand is necessary. Id. (citing cases).
Wal-Mart removed this action pursuant to 28 U.S.C. § 1446(b). Section 1446(b) provides, among other things, that if a case stated by the initial pleading is not removable, a defendant nevertheless may file a notice of removal within thirty days "after the receipt by the defendant . . . 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. . . ." Wal-Mart asserts that a Orangeburg County Court of Common Pleas Roster reflecting that Scott was not yet served as of December 28, 2005, is such "other paper." According to Wal-Mart, the citizenship of Defendant Scott can be disregarded for purposes of determining diversity jurisdiction because no action has been commenced against him within 120 days as provided by S.C. Code Ann. § 15-3-20(B). The court disagrees.
It is well settled that state law governs the sufficiency and service of process before removal. Eccles v. Nat'l Semiconductor Corp., 10 F. Supp. 2d 514, 519 (D. Md. 1998) (citing cases). Wal-Mart relies upon S.C. Code Ann. § 15-3-20(B) to support its contention that Plaintiff was required to serve Defendant Scott no later than December 8, 2005, which would be 120 days from the date of filing of the complaint. S.C. Code Ann. § 15-3-20, as amended in 2002, provides:
General rule as to time for commencement.
(A) Civil actions may only be commenced within the periods prescribed in this title [Civil Remedies and Procedures] after the cause of action has accrued, except when, in special cases, a different limitation is prescribed by statute.
(B) A civil action is commenced when the summons and complaint are filed with the clerk of court if actual service is accomplished within one hundred twenty days after filing.
South Carolina requires both filing of the complaint and service on the defendant to commence a civil action. S.C.R. Civ. P. 3. In some instances, the limitations period could bar the action even if the complaint were timely filed because the defendant could not be located before the statute of limitations expired. To remedy this inequity, South Carolina's prior practice was to deliver the summons and complaint to the county sheriff as the means of tolling the statute of limitations. Section 15-3-20 now allows a plaintiff to toll the limitations period if the civil action is filed timely and actual service is effected within 120 days after filing.
Former S.C.R. Civ. P. 3(b) provided:
Tolling of Statute of Limitations. For the purpose of tolling any statute of limitations, an attempt to commence an action is equivalent to he commencement thereof when the summons and complaint are filed with the clerk of court and delivered for service to the sheriff of the county in which defendant usually or last resided, or if a corporation be defendant, to the sheriff of the county in which any person designated by statute to accept service usually or last resided; provided that actual service must be accomplished within a reasonable time thereafter.
Wal-Mart's construction of section 15-3-20 converts the statute into the equivalent of Fed.R.Civ.P. 4(m) ("If service of the summons and complaint is not made upon a defendant within 120 days after filing of the complaint, the court . . . shall dismiss the action without prejudice as to that defendant. . . ."). Such an interpretation is contrary to S.C.R. Civ. P. 3(a), which authorizes service of a summons and complaint at any time "within the statute of limitations in any manner prescribed by law; or . . . if not served within the statute of limitations, . . . not later than one hundred twenty days after filing."
The 120 day time limit set forth in section 15-3-20 is not applicable. The alleged sexual assault took place on July 4, 2004. The applicable limitations period expires on July 4, 2007.See S.C. Code Ann. § 15-3-530 (providing for three year limitations period). Under state law, Plaintiff had until July 4, 2007 to serve Defendant Scott. The Roster reflecting that Defendant Scott had not yet been served as of December 28, 2005 does not constitute an "other paper" upon which removal can be predicated.
Wal-Mart next argues that removal is proper on the grounds of fraudulent joinder. According to Wal-Mart, Defendant Scott's residency must be disregarded because Plaintiff named him as a defendant for the sole purpose of defeating diversity jurisdiction. The court disagrees.
The purpose of Wal-Mart's argument is not clear because diversity is not an issue. Plaintiff is a Florida resident. Wal-Mart is a corporation organized and existing under the laws of the State of Delaware with its principal headquarters in Arkansas. Defendant Scott is a South Carolina resident. Wal-Mart specifically disclaims the "home state defendant" rule. Notice of Removal, p. 3. See 28 U.S.C. § 1441(b) ("Any other action [wherein the district court does not have original jurisdiction] shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."); Ott v. Consolidated Freightways Corp., 213 F. Supp. 2d 662, 665 (S.D. Miss. 2002) (citing cases).
Fraudulent joinder requires the moving party to show that there was either "'outright fraud in the plaintiff's pleading of jurisdictional facts' or that 'there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court." Hartley v. CSX Transp. Inc., 187 F.3d 422, 424 (4th Cir. 1999) (citation omitted). All issues of law and fact must be resolved in the plaintiff's favor, and all doubts about whether or not a case should be removed must be resolved in favor of state jurisdiction. Id. at 424-25. This standard is more favorable to plaintiffs than the standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. at 424. The court may consider the entire record in determining whether a defendant has been fraudulently joined. Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999).
In these cases, there are no allegations of "outright fraud." Therefore, the court must decide whether there is "no possibility" that Plaintiff could recover from Defendant Scott.
To the extent Wal-Mart asserts Plaintiff cannot state a claim against Defendant Scott because the summons and complaint were not served within 120 days, Wal-Mart's assertion is without merit, for the reasons stated hereinabove. To the extent Wal-Mart contends that the joinder of Defendant Scott is fraudulent because Plaintiff has no real intention in good faith to seek a joint judgment against him, the proper question is whether a valid cause of action against Defendant Scott has been stated.See, e.g., Storr Office Supply Div. v. Radar Business Systems-Raleigh, Inc., 832 F. Supp. 154 (E.D.N.C. 1993). Plaintiff has alleged a valid cause of action as to Defendant Scott. See, e.g., Smith v. Smith, 9 S.E.2d 584, 590 (S.C. 1940) (under common law, a "battery is the unlawful touching or striking of another by the aggressor . . . done with the intent of bringing about a harmful or offensive contact which is not legally consented to by the other, and not otherwise privileged"). Wal-Mart's removal based on fraudulent joinder is without merit.