Opinion
C/A 1:23-4460-SAL-PJG
05-16-2024
Eric Alan Sanders, Plaintiff, v. Family Dollar Stores of South Carolina, Inc.; Dollar Tree, Inc.; Shantell Murray; Kerah Dickerson; Leeza Gonzales; Blackville Police Department, Defendants.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Eric Alan Sanders, a self-represented litigant, filed this lawsuit in the Barnwell County Court of Common Pleas. Defendants Family Dollar Stores of South Carolina, Inc.; Dollar Tree, Inc.; and Shantell Murray removed the case. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Defendant Blackville Police Department's motion to dismiss (ECF No. 12) and Sanders's motions to dismiss or, in the alternative, remand (ECF Nos. 16 & 19). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Sanders of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the motion to dismiss. (ECF No. 14.) The motions are fully briefed and ripe for review. Having reviewed the record presented and the applicable law, the court finds that Defendant Blackville Police Department should be dismissed and Sanders's motions to dismiss or remand should be denied.
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendant's motion to dismiss. Sanders was formerly employed at a retail store in Blackville, South Carolina owned by Dollar Tree, Inc. and Family Dollar Stores of South Carolina, Inc. (“Family Dollar”). Sanders was fired from that job after an incident that occurred on August 15, 2021 in which Blackville police officers were dispatched to the store. Sanders raises state law claims of wrongful termination, breach of contract, negligence, outrage, trespass, unjust enrichment, conversion, abuse of process, workers' compensation retaliation, and defamation. Sanders also raises federal claims of interference and unlawful discharge and discrimination under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq.
DISCUSSION
A. Blackville Police Department's Motion to Dismiss
Defendant Blackville Police Department argues it should be dismissed for improper service. Specifically, the defendant argues Sanders attempted to serve the police department by mail, but he must serve the town itself as prescribed by South Carolina Rule of Civil Procedure 4(d)(6). Sanders did not file a response in opposition to Defendant Blackville Police Department's motion. Therefore, Sanders has waived any argument in opposition to the motion. See Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 783 (D. Md. 2010) (stating that a party who fails to address arguments in opposition to a motion to dismiss abandons their claim); see also Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”). Consequently, the court concludes that Defendant Blackville Police Department should be dismissed for improper service of process. See Fed.R.Civ.P. 12(b)(5).
The defendant notes it is more properly identified as the “Town of Blackville” because the town's police department is not a separate entity amenable to suit. (Mot. Dismiss, ECF No. 12 at 1.)
B. Sanders's Motions to Dismiss or Remand
In consecutive motions, Sanders asks the court to remand this case to the Barnwell County Court of Common Pleas. Alternatively, Sanders asks the court to dismiss the case without prejudice if the court refuses to remand it. Sanders puts forth three arguments in support of remand. First, he argues that this case arises under South Carolina's workers' compensation laws and therefore is not removable under 28 U.S.C. § 1445(c). Second, Sanders argues this case was not timely removed. Third, Sanders argues the court lacks jurisdiction because the court has concurrent jurisdiction with state courts over his FMLA claims.
The defendants oppose dismissing this action without prejudice.
As the federal removal statutes provide, “[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.” 28 U.S.C. § 1445(c). However, as explained by the defendants in their responses in opposition to Sanders's motion, this case does not “arise under” South Carolina's workers' compensation law. (Resp. in Opp'n, ECF No. 21 at 3; Resp. in Opp'n, ECF No. 22 at 3.) While Sanders raises a retaliation claim in the Complaint that is based on his allegation that he filed a workers' compensation claim, the claim is not filed pursuant to South Carolina's no-fault insurance benefit system. See generally Arthur v. E.I. DuPont de Nemours & Co., 58 F.3d 121, 125 (4th Cir. 1995) (explaining the parameters of 28 U.S.C. § 1445(c); compare S.C. Code §§ 42-1-10 et seq. (creating the workers' compensation system) with S.C. Code § 41-1-80 (stating workers' compensation anti-retaliation causes of action are available in “civil actions”). Therefore, section 1445(c) does not preclude removal of this action.
As to timeliness, Sanders argues the defendants were required to file their notice of removal on September 3, 2023, which was thirty days from the date the first defendant was served. See 28 U.S.C. § 1441(b). However, that date was a Sunday and the next business day was Tuesday September 5, 2023 because that Monday was Labor Day, a federal holiday. See Fed.R.Civ.P. 6(a)(1)(C). Therefore, Sanders has failed to show that the defendants' removal of this action on September 5, 2023 was untimely.
Finally, Sanders incorrectly asserts that South Carolina courts' concurrent jurisdiction over his FMLA claims renders this case nonremovable. Because this court has original jurisdiction to hear federal statutory claims, the action is removable. See generally 28 U.S.C. § 1441. Therefore, Sanders has failed to show untimely removal or that the court lacks jurisdiction over the claims raised in the Complaint. See also 28 U.S.C. § 1367 (providing the court with supplemental jurisdiction to hear state law claims in removed actions). Consequently, this case should not be remanded to state court.
As to Plaintiff's alternative motion to dismiss this case without prejudice, the motion should be denied. Pursuant to Federal Rule of Civil Procedure 41(a)(1), a plaintiff may not voluntarily dismiss his action without a court order after service of an answer, unless a stipulation of dismissal is signed by all parties. Rule 41(a)(2) provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2) (emphasis added). Generally, a plaintiff's motion for voluntary dismissal without prejudice under Rule 41(a)(2) should not be denied absent plain legal prejudice to the defendant. See Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986); Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). To establish plain legal prejudice, a defendant must show some harm other than the mere prospect of a second lawsuit. See Ellett Bros., Inc. v. United States Fidelity & Guar. Co., 275 F.3d 384 (4th Cir. 2001); see also Fed. R. Civ. P. 41(d) (permitting the court to order a plaintiff who has previously dismissed an action based on or including the same claim against the same defendant to pay all or part of the costs of the previous action and to stay the new case until the plaintiff has complied). Nonetheless, under appropriate circumstances, a district court may dismiss an action under Rule 41(a)(2) with prejudice. See Choice Hotels Int'l Inc.v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir. 1993). In deciding whether to dismiss an action pursuant to Rule 41(a)(2), a court should consider factors such as (1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) an insufficient explanation of the need for a dismissal; and (4) the present state of the litigation. Miller v. Terramite Corp., 114 Fed.Appx. 536, 540 (4th Cir. 2004) (citing Phillips USA, Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)). This list of important factors is not exclusive; the court may consider any relevant factors depending on the circumstances presented in the case. 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2364 (4th ed. Apr. 2023) (discussing Fourth Circuit law).
Here, Sanders's motion to dismiss without prejudice should be denied for three reasons. First, he fails to provide any explanation for his dismissal, and notably, the motion appears to be based on his desire not to litigate this case in federal court. See Miller, 114 Fed.Appx. at 540 However, this court has jurisdiction to hear this case, see Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (reaffirming the principle that federal courts have a “virtually unflagging” obligation to hear and decide cases within their jurisdiction); and the court cannot remand it based solely on the plaintiff's preference to litigate the exact same case in another forum. Cf. Lang v. Manufacturers & Traders Tr. Co., 274 F.R.D. 175, 183 (D. Md. 2011) (explaining that the court could sanction voluntary dismissal if the plaintiff stated his desire to refile the action in state court in such a way that the case was no longer removable to federal court). Second, as discussed below, Sanders also seeks to amend his complaint, which calls into question whether he actually seeks dismissal. Third, the defendants oppose dismissal and argue that Sanders appears to be attempting to manipulate the removal procedure, which would prejudice them if Sanders refiled the case and they had to remove this action again. (ECF No. 22 at 5-6.) The court concludes that these factors weigh in favor of denying Sanders's motion. However, Sanders may again seek voluntary dismissal either through consent of the parties or by motion accompanied by sufficient explanation of the need for dismissal that addresses whether he actually seeks remand or whether he seeks to remain in federal court and amend his complaint.
C. Sanders's Motion to Amend
Sanders filed an Amended Complaint that was docketed as a motion to amend pursuant to Federal Rule of Civil Procedure 15(a)(2). (ECF No. 20.) Defendants Family Dollar Stores of South Carolina, Inc., Dollar Tree, Inc., Shantell Murray, and Leeza Gonzales oppose the amendment, arguing Sanders did not seek leave of the court. (ECF No. 27.) Because the document was docketed as a motion, the court construes it as motion for leave to amend pursuant to Rule 15. The defendants are directed to file any response addressing the merits of Sanders's Amended Complaint or motion for leave to amend within fourteen days of the date of this order.
RECOMMENDATION
Based on the foregoing, the court recommends that Blackville Police Department's motion to dismiss (ECF No. 12) be granted, and that Sanders's motions to dismiss or remand (ECF No. 16 & 19) be denied.
ORDER
It is
ORDERED that Defendants Family Dollar Stores of South Carolina, Inc., Dollar Tree, Inc., Shantell Murray, and Leeza Gonzales are directed to file a response to Sanders's motion to amend (ECF No. 20) within fourteen days of the date of this order. Sanders's motion to amend is held in abeyance pending the defendants' timely response, if any.
IT IS SO ORDERED.
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).