Opinion
Civil Action 6:22-cv-479-TMC-KFM
06-07-2022
Bruce Wilson, Plaintiff, v. VLS Recovery Services, LLC, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the plaintiff's amended motion to remand (doc. 14). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil 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.
BACKGROUND
The plaintiff, who is proceeding pro se, filed a summons and complaint on January 11, 2022, in the Greenville County Court of Common Pleas against his former employer. In his complaint, the plaintiff alleges the defendant discriminated and retaliated against him on the basis of race in violation of 42 U.S.C. § 1981 (doc. 1-1).
On January 12, 2022, an unidentified white male entered the defendant's facility located at 305 South Main Street, in Mauldin, South Carolina and was greeted by Melissa Shugart, an administrative assistant in billing and customer service (doc. 23-1, Shugart decl. ¶ 7). Ms. Shugart testified in her declaration that, without stating the purpose of the visit, the man asked for Shannon Roberts, who is a logistics manager for the defendant and the plaintiff's former supervisor (id.). Ms. Shugart explained that Ms. Roberts was in a meeting (id.). The man then asked Ms. Shugart to deliver a blank manilla envelope to Ms. Roberts (id. & ex. A). The man left the facility without ever advising of the purpose of his visit or the contents of the envelope (id. ¶ 9). Ms. Shugart gave the envelope to Ms. Roberts later that morning (id.). Ms. Roberts opened the envelope and found enclosed a summons and complaint in the plaintiff's state court case (doc. 23-2, Roberts decl. ¶ 8). Neither Ms. Shugart nor Ms. Roberts are authorized to accept service on behalf of the defendant (doc. 23-3, Vice President of Waste Platt Moore decl. ¶¶ 6, 7; see also doc. 23-4, Regional Vice President of Waste Doug Dugan decl. ¶¶ 5, 6 & doc. 23-5, Facility Manager Adam Henderson decl. ¶¶ 5, 6). Moreover, Ms. Roberts testified in her declaration that she is not an officer, registered agent, general agent, or managing agent of the defendant (doc. 23-2, Roberts decl. ¶ 4), and Ms. Shugart testified to the same in her declaration (doc. 23-1, Shugart decl. ¶ 4).
On February 2, 2022, the plaintiff filed an affidavit of service in the state court case (doc. 14-1 at 4). The affidavit of service stated that the summons and complaint in Bruce Wilson v. VLS Recovery LLC was served on Shannon Roberts, the“Corporate Super” of VLS Recovery LLC on January 12, 2022, at 9:05 a.m. The affidavit of service was signed by “Iesha-D-Jeter” and was notarized 21 days later on February 2, 2022, the same day it was filed (id.).
On February 14, 2022, the defendant filed a notice of removal of the plaintiff's state court case based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 (doc. 1). The defendant filed an answer in this court on February 22, 2022 (doc. 10). On February 14, 2022, the plaintiff filed a motion for default judgment in the Greenville County Court of Common Pleas based upon defendant's alleged failure to timely file an answer (doc. 14-1). The plaintiff filed a motion to remand this case to state court on February 24, 2022 (doc. 17). On February 25, 2022, the plaintiff filed an amended motion to remand (doc. 14), which rendered the original motion moot (doc. 21). On March 10, 2022, the defendant filed a response in opposition to the plaintiff's amended motion to remand (doc. 23), along with supporting declarations and exhibits (docs. 23-1 through 23-5). Accordingly, the motion to remand is ripe for this court's consideration.
The defendant filed an amended notice of removal and an amended answer on March 7, 2022 (docs. 18, 19).
APPLICABLE LAW AND ANALYSIS
In the amended motion, the plaintiff argues that this case should be remanded to state court “for a ruling on a timely filed motion for entry of default,” because the defendant failed to answer the summons and complaint within 30 days (doc. 14). In response, the defendant argues that this court has federal question jurisdiction over this matter because the plaintiff's claims arise under federal law, the plaintiff's motion to remand fails because service of process upon the defendant was improper, and the notice of removal was timely filed because the plaintiff's attempted service was deficient (doc. 23). The undersigned agrees with the defendant's arguments and, therefore, recommends that the plaintiff's amended motion to remand be denied as discussed below.
Federal Question Jurisdiction
If a state court action could have been filed originally in a federal district court, a defendant may remove the state court action to federal district court. 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1331, the federal district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States. The plaintiff's complaint asserts violations of federal law. Specifically, the plaintiff alleges the defendant discriminated and retaliated against him on the basis of race in violation of 42 U.S.C. § 1981 (doc. 1-1). Therefore, this court has jurisdiction over this lawsuit.
Improper Service of Process
As argued by the defendant, "Plaintiff has the burden to establish that service of process was correctly made and that the court has personal jurisdiction over Defendant." Robinson v. Wateree Cty. Actions, Inc., C. A. No. 3:17-cv-1578-JMC, 2018 WL 703335, at *2 (D.S.C. Feb. 5, 2018) (citing Jensen v. Doe, 358 S.E.2d 148, 148 (S.C. Ct. App. 1987)). See Lail v. United States, C. A. No. 3:11-cv-977-TLW-TER, 2012 WL 3779386, at *6 (D.S.C. Aug. 10, 2012) (stating that if a defendant challenges the sufficiency of service, the plaintiff bears the burden of proving that service of process was proper) (citations omitted).
The South Carolina Rules of Civil Procedure state that service shall be made as relevant here:
Upon a corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.S.C. R. Civ. P. 4(d)(3) (emphasis added). As argued by the defendant, South Carolina courts have found service improper in a variety of circumstances but always where the employee was neither an officer, managing or general agent, or otherwise authorized to accept service. See Regan v. Palmetto Prince George Operating, LLC, C. A. No. 2:10-cv-1810-RMG, 2011 WL 13216999, at *2 (D.S.C. Sept. 16, 2011) (service on a corporation through a librarian/ backup receptionist was improper); Bowman v. Weeks Marine, Inc., 936 F.Supp. 329 (D.S.C. 1996) (service on “receptionist at the corporate headquarters who was not an authorized agent of Defendant, nor an officer of the corporation, nor a person authorized to accept service” was improper despite the fact that she admitted that she signed for the summons and complaint); Graham Law Firm, P.A. v. Makawi, 721 S.E.2d 430, 433-34 (S.C. 2012) (trial court did not abuse its discretion in finding that a bookkeeper and hostess were not authorized to accept service); Moore v. Simpson, 473 S.E.2d 64, 67 (S.C. Ct. App. 1987) (“Without specific authorization to receive process, service is not effective when made upon an employee of the defendant, such as a secretary.” (citations omitted)).
In the present case, the plaintiff failed to properly serve the defendant according to South Carolina Rule of Civil Procedure 4. The summons and complaint were not delivered to an officer, a managing or general agent, or anyone authorized to accept service of process on behalf of the defendant. The individual who attempted service walked into the defendant's Mauldin facility and, rather than asking for someone authorized to accept service of a summons and complaint, he simply asked the first employee he saw, Ms. Shugart, to give a blank manilla envelope to Ms. Roberts (doc. 23-1, Shugart decl. ex. C). The individual neither inquired as to Ms. Shugart's position with the defendant, nor did he verify that she was an individual authorized to accept service on behalf of the defendant (id.). Both Ms. Shugart and Ms. Roberts testified that they are neither “an officer, a managing or general agent,” nor are they otherwise authorized to accept service on behalf of the defendant. Later that morning, Ms. Shugart gave the envelope to Ms. Roberts who discovered that the envelope contained a copy of the summons and complaint in the plaintiff's state court action against the defendant (doc. 23-2, Roberts decl. ¶ 8). Handing a summons and complaint to an unauthorized clerical employee and entrusting her to deliver it to another unauthorized employee does not amount to proper service. See Nash v. Syncreon Am., Inc., C. A. No. 6:20-cv-3727-DCC-KFM, 2021 WL 5903340, at *2 (D.S.C. Feb. 1,2021) (“'[A]ctual notice does not equate to sufficient service of process, even under the liberal construction of the rules applicable to a pro se plaintiff.” (quoting Scott v. Md. State Dep't of Lab., 673 Fed.Appx. 299, 305 (4th Cir. 2016))).
Moreover, there is no evidence that Ms. Shugart made any assertion that she could accept service on behalf of defendant, and even if she had made such a representation, it would not be binding on the defendant. See Hamilton v. Davis, 389 S.E.2d 297, 298 (S.C. Ct. App. 1990) (claims by one to possess authority to receive process or actual acceptance of process by an alleged agent will not bind the defendant, especially in the absence of evidence that the defendant intended to confer such authority (citations omitted)). Further, the defendant has shown that while Ms. Shugart and Ms. Roberts were not authorized to accept service on behalf of the defendant, there were multiple other employees present at the facility who, as managing agents of the company, were authorized to accept service on behalf of the defendant (doc. 23-3, Moore decl. ¶¶ 4, 5; doc. 23-4, Dugan decl. ¶¶ 4, 7; doc. 23-5, Henderson decl. ¶¶ 4, 7).
Accordingly, the plaintiff failed to properly serve the defendant on January 12, 2022. Therefore, the defendant's 30 days to remove the case to federal court and file an answer did not begin to run on the date of the attempted, but deficient service.
The defendant further argues that the plaintiff's affidavit of service has serious flaws that undermine its accuracy and reliability. S.C. R. Civ. P. 4(g). The undersigned agrees. Most notably, the affidavit of service states that Shannon Roberts was served with the summons and complaint (doc. 14-1 at 4). As described in detail above, that is incorrect (doc. 23-2, Roberts decl. ¶ 9). Moreover, the affidavit lists Ms. Roberts' title as “Corporate Super” (doc. 14-1 at 4), which is not her job title or a position of employment for the defendant (doc. 23-2, Roberts decl. ¶ 12). Finally, Iesha D. Jeter signed the affidavit of service (doc. 14-1 at 4). The defendant has submitted a photograph published in The Greenville News on March 9, 2022, which shows the plaintiff with a black female identified as Iesha Jeter (doc. 23-2, Roberts decl. ¶ 11 & ex. C). However, Ms. Shugart testified that a white male handed her the envelope containing the summons and complaint (doc. 23-1, Shugart decl. ¶ 7). The South Carolina Rules of Civil Procedure provide, in pertinent part, the following requirements for the proof of service:
The person serving the process shall make proof of service thereof promptly and deliver it to the officer or person who issued same. If served by the sheriff or his deputy, he shall make proof of service by his certificate. If served by any other person, he shall make affidavit thereof. . . . The proof of service shall state the date, time and place of such service and, if known, the name and address of the person actually served at the address of such person, and if not known, then the date, time and place of service and a description of the person actually served. . . .S.C. R. Civ. P. 4(g). Accordingly, the plaintiff's proof of service is defective and does not affirmatively show that service was made on an authorized individual.
Timely Notice of Removal
Under 28 U.S.C. § 1446(b)(1), a removing defendant must file its notice of removal with the district court “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading. . . .” As recently stated by this court, “[a] plain-language reading of the statute invites an interpretation that the 30-day clock for removal begins to run upon a defendant's receipt of the complaint, regardless of whether service was procedurally proper. However, the plain language . . . has proven deceiving.” Smith v. Kelso, C. A. No. 2:20-0180-DCN, 2020 WL 1887723, at *3 (D.S.C. Apr. 16, 2020). Although courts debated the meaning of “through service or otherwise,” the Supreme Court has resolved this issue, making clear “that under § 1446(b)(1), a defendant has 30 days to remove an action from the time proper service is effected.” Id. (citing Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)) (emphasis added).
Accordingly, the question before the court is when proper service occurred. As discussed above, the plaintiff's attempted service on January 12, 2022, was deficient. However, South Carolina Rule of Civil Procedure 4(d) provides that a voluntary appearance by a defendant is equivalent to personal service. Accordingly, the defendant's voluntary appearance in this action by filing the notice of removal on February 14, 2022, is equivalent to personal service. Thus, the notice of removal was timely filed.
As noted by the defendant, the recent case of Hubbard v. South Carolina Department of Mental Health is nearly identical, both factually and procedurally, to this matter. C. A. No. 3:20-2482-JMC-SVH, 2020 WL 7647538 (D.S.C. Aug. 4, 2020), R&R adopted by 2020 WL 7258121 (D.S.C. Dec. 10, 2020). In Hubbard, the pro se plaintiff brought an employment discrimination and retaliation lawsuit in state court on April 27, 2020. Id. at *1. The plaintiff attempted service on April 29, 2020, and the attempt was memorialized in a proof of service filed in state court on May 1, 2020. Id. The plaintiff then filed a motion for default judgment on June 17, 2020. Id. The defendant filed a notice of appearance and a return to the plaintiff's motion for default judgment in state court on June 19 and June 26, 2020, respectively. Id. On June 30, 2020, the defendant filed its notice of removal to the District Court, and the plaintiff filed a motion to remand on July 7, 2020. Id. The court held that the service of process was ineffective because the proof of service was defective. Id. at *3. Further, because the attempted personal service was ineffective, “service was not actually obtained until Defendant elected to voluntarily appear in this action by filing a notice of appearance on June 19, 2020, and, therefore, Defendant timely filed notice of removal on June 30, 2020.” Id. at *4. Likewise, here, the plaintiff failed to properly serve the defendant on January 12, 2022, by leaving the summons and complaint with a clerical employee. However, the defendant voluntarily accepted service by appearing in the case on February 14, 2020, and filing a notice of removal the same day. As the defendant timely removed this action and this court has federal question jurisdiction under 28 U.S.C. § 1331, removal was appropriate, and, accordingly, the plaintiff's amended motion to remand should be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the plaintiff's amended motion to remand (doc. 14) should be denied.
IT IS SO RECOMMENDED.
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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).