Sutton v. Adams

1

Horace Clifton Sutton, as personal representative for the Estate of Patricia W. Sutton for the survival claim and on behalf of Patricia W. Sutton's statutory beneficiaries, and individually, and, Shirley J. Hunt, as personal representative for the Estate of Flora Mae Clark for the survival claim and on behalf of Flora Mae Clark's statutory beneficiaries, Plaintiffs, v. Jessica Adams, D.O., McLeod Medical Center - Dillon, McLeod Physicians Associates II, Mary-Beth Lewis, M.D. and Carolina Radiology Associates, LLC, Defendants.

No. 4:23-cv-01063-JD

United States District Court, D. South Carolina, Florence Division

August 24, 2023

ORDER AND OPINION

Joseph Davison, III United States District Judge.

Before the Court is Plaintiffs Horace Clifton Sutton, as personal representative for the Estate of Patricia W. Sutton for the survival claim and on behalf of Patricia W. Sutton's statutory beneficiaries, and individually (“Sutton”), and Shirley J. Hunt, as personal representative for the Estate of Flora Mae Clark for the survival claim and on behalf of Flora Mae Clark's statutory beneficiaries' (“Hunt”) (collectively “Plaintiffs”) Motion to Remand. (DE 16.) The parties have briefed the motion; and therefore, the motion is ripe for review and decision. After reviewing the motion and memorandum submitted, the Court finds it lacks subject matter jurisdiction, and the case must be remanded to State court.

BACKGROUND

On or about March 13, 2023, Plaintiffs filed a medical negligence and wrongful death action against Defendants Jessica Adams D.O. (“Adams”), McLeod Medical Center - Dillon (“MMC”), McLeod Physicians Associates II (“MPA”), Mary-Beth Lewis, M.D. (“Lewis”) and Carolina Radiology Associates, LLC (“CRA”) (collectively “Defendants”) in the Court of Common Pleas for Dillon County, South Carolina. (DE 1-2.) That same day, Plaintiffs' counsel sent Defendants' counsel a courtesy email with a copy of the Complaint, asking whether or not they would accept service on behalf of their respective clients. (DE 17-4.) Plaintiffs' counsel contends they never received a response. (DE 17, p. 2.)

Three days later, on March 16, 2023, Defendants Adams and MPA (collectively the “Removing Defendants”) removed the case based on diversity jurisdiction to the U.S. District Court for the District of South Carolina, pursuant to 28 U.S.C. §§ 1332 (DE 1), as Plaintiffs are citizens of North Carolina while each defendant is a citizen of South Carolina (DE 1-2, ¶¶ 1-6). Plaintiffs did not serve any of the Defendants with the Complaint prior to removing the action. (DE 17, p. 2; DE 21, p. 3.) On April 12, 2023 Plaintiffs moved to remand the case pursuant to 28 U.S.C § 1447, the forum defendant rule. (DE 16.)

LEGAL STANDARD

The right to remove a case from state to federal court derives solely from 28 U.S.C. § 1441, which provides that “any 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, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441 (2012). The party seeking to remove a case from state court to federal court bears the burden of demonstrating that jurisdiction is proper at the time the petition for removal is filed. Caterpillar Inc. v. Lewis, 519 U.S. 61, 73 (1996). However, “if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447 (2012). The court may “look beyond the complaint to determine the propriety of removal.” Flores v. Ethicon, Inc., 563 Fed.Appx. 266, 269 (4th Cir. 2014). If federal jurisdiction is doubtful, remand is necessary. Mulchaey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).

A federal district court has “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]” 28 U.S.C. § 1332(a) (2012). “[28 U.S.C. § 1332(a)] and its predecessors have consistently been held to require complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978); Crawford v. C. Richard Dobson Builders, Inc,, 597 F.Supp.2d 605, 608 (D.S.C. 2009) (“The complete diversity rule of § 1332 requires that the citizenship of each plaintiff be different from the citizenship of each defendant.”).

DISCUSSION

The parties concede that there is complete diversity between the parties and the amount in controversy could exceed $75,000. (DE, ¶¶ 5, 7; DE 1-2, ¶¶ 1-6.) However each defendant is a resident of the state in which the suit was brought - South Carolina. Plaintiffs contend remand is, therefore, necessary pursuant to the “forum defendant rule.” (DE 17, 3-4.) The forum defendant rule establishes, “[a] civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2) (emphasis added). Although Plaintiffs concede that none of the Defendants were properly served before removal of the case to federal court (DE 17, p. 2-4), nevertheless, Plaintiffs contend Defendants used this process, commonly referred to as “snap removal,” “in a clear attempt to circumvent the forum defendant rule.” (Id.) On the other hand, the Removing Defendants contend the Court should apply the plain statutory text of 28 U.S.C. § 1441(b)(2), which only prohibits removal when a defendant is a citizen of the forum state if that defendant was “properly joined and served.” (DE 21, p. 5.) The Court disagrees with Defendants' application of the statute in this case.

Although it is a well-settled principle that “unless there is some ambiguity in the language of a statute, a court's analysis must end with the statute's plain language,” there are two narrow exceptions to the application of a statute's plain language such that “[a] reviewing court may look beyond the plain language of an unambiguous statute.” In re Sunterra Corp., 361 F.3d 257, 265 (4th Cir. 2004) (citations omitted). “The first such exception, premised on absurdity, exists ‘when literal application of the statutory language at issue results in an outcome that can truly be characterized as absurd, i.e., that is so gross as to shock the general moral or common sense ....'” Id. (quoting Hillman v. I.R.S., 263 F.3d 338, 342 (4th Cir. 2001). “The second exception is premised on legislative intent, and it exists only ‘when literal application of the statutory language at issue produces an outcome that is demonstrably at odds with clearly expressed congressional intent . . . .'” Id.

Neither the Supreme Court of the United States nor the Fourth Circuit Court of Appeals has provided binding precedent on whether removal involving an unserved forum defendant is allowed pursuant to the plain language of 28 U.S.C. § 1441(b)(2) or whether it falls within one of the narrow exceptions of the application of the plain language principle. Furthermore, other circuits and District Courts within the Fourth Circuit are divided on the issue.^[1] Expectedly, the parties ask the Court to apply the reasoning on contrary sides of this split. Plaintiffs contend a “literal interpretation allowing removal would create absurd results and effectively eliminate the forum defendant rule by allowing defendants the ability to circumvent it and ‘race to remove' before plaintiffs even have a reasonable opportunity to serve them.” (DE 17, p. 10.) Defendants, meanwhile, contend the literal application of 28 U.S.C. § 1441(b)(2) “does not lead to an absurdity that is ‘so gross as to shock the general moral or common sense,'” nor does it “circumvent the purpose of the forum defendant rule in this setting.” (DE 21, p. 9.)

Regarding the purpose of the forum defendant rule, Courts have interpreted the addition of the “properly joined and served” language to 28 U.S.C. § 1441(b)(2) to “prevent gamesmanship by plaintiffs,” specifically “to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom [the plaintiff] does not intend to proceed, and whom [the plaintiff] does not even serve.” Goodwin, 757 F.3d at 1221; see also Doe, 2023 WL 3964052 at * 2. Here, there is no evidence of or risk that Plaintiffs were engaged in such gamesmanship as Defendants do not contend that any of them were added fraudulently to prevent removal of the case. To the contrary, pre-service removal in this case “would provide an incentive for defendants to employ gamesmanship by racing to remove newly filed actions which would stand in contrast to the purpose behind the inclusion of the language to prevent gamesmanship.” Doe, 2023 WL 3964052 at * 2 (citing Goodwin, 757 F.3d at 1221). Here, the Removing Defendants were alerted of a pending action because Plaintiffs sent Defendants' counsel a courtesy copy of that complaint, and, before answering Plaintiffs' inquiry regarding whether Defendants' counsel would accept service on behalf of their clients, removed the action within three days. Such gamesmanship appears to be in direct contrast with the intent of the forum defendant rule. See e.g. Goodwin, 757 F.3d at 1221 (rejecting defendants contention that pre-service removal by forum defendant was proper where “defendants accomplished a pre-service removal by exploiting, first, Plaintiff's courtesy in sending them copies of the complaint and, second, the state court's...