Opinion
Civil Action No. 9:20-cv-02351-MBS-MGB
09-08-2020
Christine Terry, Plaintiff, v. Beaufort County School District, Defendant.
REPORT AND RECOMMENDATION
Plaintiff originally filed this action alleging wrongful termination in violation of South Carolina state law and the Americans with Disabilities Act ("ADA") in the Beaufort County Court of Common Pleas. (Dkt. No. 1-1.) On June 23, 2020, Defendant removed the action to Federal Court. (Dkt. No. 1.) This matter is now before the Court upon Plaintiff's Motion to Remand. (Dkt. No. 7.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Plaintiff's Motion to Remand (Dkt. No. 7) be denied.
BACKGROUND
Plaintiff filed this action in state court on October 4, 2017. (Dkt. No. 1-1.) On November 15, 2017, Defendant removed the action pursuant to 28 U.S.C. § 1446, alleging that it was entitled to removal because Plaintiff's ADA claims established federal question jurisdiction under 28 U.S.C. § 1331. (Dkt. No. 1.) Plaintiff then filed a motion to remand the case on December 15, 2017, arguing that Defendant's notice of removal was improper because it failed to address whether Defendant was entitled to sovereign immunity under the Eleventh Amendment. (Dkt. No. 7.) Defendant filed a response in opposition to this motion, claiming that other District Court opinions had determined that school districts in South Carolina were not subject to Eleventh Amendment sovereign immunity. (Dkt. No. 8.) On the other hand, Plaintiff's reply to Defendant's response in opposition cited to several District Court opinions holding that school districts in South Carolina were subject to Eleventh Amendment sovereign immunity. (Dkt. No. 11.)
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB.
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB.
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB.
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB.
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB.
To resolve this dispute, United States Magistrate Judge Mary Gordon Baker issued a Report and Recommendation on Plaintiff's motion to remand. See generally Terry v. Beaufort Cnty. Sch. Dist., No. 9:17-cv-03097-MBS-MGB, 2018 WL 3737916 (D.S.C. July 16, 2018), adopted, No. 9:17-cv-3097-MBS, 2018 WL 3729803 (D.S.C. Aug. 6, 2018). In her Report and Recommendation, she noted the lack of consensus within the District concerning whether Defendant had Eleventh Amendment sovereign immunity and ultimately concluded that Defendant did not present information sufficient to allow the Court to conduct a proper analysis of this question. (Id. at *4.) Therefore, Judge Baker determined that Defendant had not met its burden of establishing federal jurisdiction. (Id.) United States District Judge Margaret B. Seymour subsequently adopted the Report and Recommendation, and the case was remanded back to state court. See generally Terry v. Beaufort Cnty. Sch. Dist., No. 9:17-cv-3097-MBS, 2018 WL 3729803 (D.S.C. Aug. 6, 2018).
After the case was remanded, Defendant filed a motion for summary judgment. (Dkt. No. 7-2.) In its motion, Defendant argued, inter alia, that it was immune from suit under Eleventh Amendment sovereign immunity. (Id.) In resolving Defendant's motion for summary judgement, the State Circuit Court Judge concluded that "the District Court made no determination as to whether [Defendant] is a state entity or a local political subdivision." (Dkt. No. 7-3 at 3.) However, the State Circuit Court Judge found it necessary to rule on Defendant's status as a state entity or a local political subdivision in order to rule on Defendant's sovereign immunity defense. (Id.) In doing so, she determined "as a matter of law" that Defendant "is a local political subdivision" and denied Defendant's sovereign immunity defense under the ADA. (Id. at 4.) Defendant now contends that this order "establishes the law of this case that [Defendant] is a local political subdivision and not an 'arm of the state'" and asserts that this is the basis on which it filed its Notice of Removal. (Dkt. No. 8 at 4.)
In her order resolving Defendant's motion for summary judgment, the State Circuit Court Judge also dismissed Plaintiff's state-law wrongful termination claim. As a result, only Plaintiff's cause of action under Title I of the ADA remains.
LEGAL STANDARD
I. Motion to Remand
"The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)). On a motion to remand, courts are obligated to "construe removal jurisdiction strictly because of the 'significant federalism concerns' implicated." Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (quoting Mulcahey, 29 F.3d at 151). "If federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151 (citing In re Business Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993); Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F. Supp. 1098, 1102 (D.S.C. 1990)).
Successive removal is permitted when there is a "relevant change of circumstances." Attorney Grievance Comm'n. of Md. v. Rheinstein, No. 17-cv-2550-MJG, 2017 WL 4167402, at *1 (D.Md. Sep. 20, 2017) (quoting Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir. 2015)). In other words, successive removal is allowed "when subsequent pleadings or events reveal a new and different ground for removal." Id. (quoting Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir. 2015)) (emphasis in original). In this context, "different grounds" can mean "a different set of facts that state a new ground for removal" or "new facts in support of the same theory of removal." Id. (quoting Cain v. CVS Pharmacy, Inc., No. 5:08-cv-79, 2009 WL 539975, at *2 (N.D.W.Va. Mar. 4, 2009)).
DISCUSSION
I. Timeliness
Plaintiff first argues that her motion to remand should be granted because Defendant's Notice of Removal was filed after the thirty-day window permitted by the removal statute. (Dkt. No. 7-1 at 5.) In response, Defendant asserts that it properly filed its Notice of Removal within the thirty-day window, but that the Clerk's Office made a clerical error and recorded the filing on an incorrect date. (Dkt. No. 8 at 4.) To support this argument, Defendant included the relevant Notice of Electronic Filing as an exhibit to its response in opposition to Plaintiff's motion to remand. (Dkt. No. 9-2.) The Notice of Electronic Filing shows that Defendant entered its Notice of Removal at 10:44 PM on June 22, 2020 and states that such Notice of Removal was filed on June 22, 2020, though it reflects the entry and filing under Case Number 3:20-99999. (Id.)
As noted above, Defendant argues that the State Circuit Court Judge's order, issued on May 22, 2020, provides the basis for its Notice of Removal. (Dkt. No. 1 at 2; Dkt. No. 7-3.) Pursuant to 28 U.S.C. § 1446, Defendant had thirty days following receipt of that order to file its Notice of Removal. See 28 U.S.C. § 1446(b)(3). Thirty days from Friday, May 22, 2020, is Sunday, June 21, 2020. In turn, the deadline for Defendant to file its Notice of Removal fell on Monday, June 22, 2020. Defendant therefore submitted its Notice of Removal within the thirty-day window, albeit under the wrong case number. (Dkt. No. 9-2.) Because this was a minor procedural error, the undersigned declines to grant Plaintiff's motion to remand on this ground.
II. Successive Removal Petitions
Plaintiff next argues that the Court should grant her motion to remand because Defendant has not filed this removal petition on new or different grounds. (Dkt. No. 7-1 at 7.) Rather, Plaintiff contends that "the only thing new or different that has happened is that when presented with a full record after eighteen months of litigation in the State court, [the State Circuit Court Judge] was able to issue a ruling on the Eleventh Amendment issue." (Id.) Plaintiff also notes that she has not amended her complaint or raised new claims and that there is no new information in the record or in the State Circuit Court Judge's order that was unavailable to Defendant when it filed its first Notice of Removal. (Id. at 7-8.) On the other hand, Defendant asserts that the order provides "a different ground that makes the case removable" because "[i]t answer[s] the question that this Court did not answer upon the initial remand." (Dkt. No. 8 at 6.) Defendant also argues that its second Notice of Removal is permitted under 28 U.S.C. § 1446(b)(3), which provides that:
[I]f 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 . . . 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.(Id. at 5.)
As described above, Defendant filed its initial Notice of Removal in 2017, asserting that this Court had jurisdiction over the case at issue on account of Plaintiff's ADA claim. (Dkt. No. 1.) However, Plaintiff subsequently filed a motion to remand, arguing that Defendant failed to waive Eleventh Amendment immunity and that "[w]here the Eleventh Amendment prevents a federal court from exercising jurisdiction over an action against a State or its political subdivisions, remand under 42 U.S.C. § 1447(c) is mandated." (Dkt. No. 7-1 at 1, 3.) Accordingly, the District Court analyzed whether Defendant had met its burden of demonstrating that remand was not mandatory in this instance and determined that Defendant did not provide enough information for the District Court make that finding. See generally Terry, 2018 WL 3729803. The District Court granted Plaintiff's motion to remand on this ground alone. (Id.)
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB.
This reference is to the Docket for Terry v. Beaufort County School District, Civil Action No. 9:17-03097-MBS-MGB
The State Circuit Court Judge has now determined that Defendant is a "local political subdivision" and is therefore not entitled to Eleventh Amendment immunity. (Dkt. No. 7-3 at 6.) In turn, the State Circuit Court Judge has resolved the only barrier to this Court's subject matter jurisdiction over this case and it "has become removable." See 28 U.S.C. § 1446(b)(3).
While Plaintiff contends that Defendant sets forth no new or different ground for removal, a second removal petition is appropriate where new facts support the same theory of removal. Attorney Grievance Comm'n. of Md., 2017 WL 4167402, at *1 (quoting Cain, 2009 WL 539975, at *2). In this instance, the State Circuit Court Judge's order provides a new fact—that Defendant is not entitled to Eleventh Amendment immunity. (Dkt. No. 7-3.) If Defendant is not entitled to Eleventh Amendment immunity, there is no bar to federal jurisdiction over this case. This constitutes a relevant change of circumstances making the case removable and Defendant's successive removal petition is therefore proper. Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997) ("[Section] 1446(b) applies . . . when some later development, such as the dismissal of a nondiverse party, eliminates the impediment to federal jurisdiction and allows removal."); see also Attorney Grievance Comm'n. of Md., 2017 WL 4167402, at *1 (stating that successive removal is permitted when there is a change of circumstances relevant to the grounds for removal).
CONCLUSION
Based on the foregoing, the undersigned recommends that the Court deny Plaintiff's Motion to Remand. (Dkt. No. 7.)
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE September 8, 2020
Charleston, South Carolina
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).