Brown v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

BEAUFORT DIVISION

AZALEE C. BROWN, )

)

Plaintiff, )

) No. 9:22-cv-01624-DCN

vs. )

) ORDER

ALFREDO RULLO, )

)

Defendant. )

_______________________________________)

This matter is before the court on plaintiff Azalee C. Brown’s (“plaintiff”) motion

to remand, ECF No. 7. For the reasons set forth below, the court grants the motion.

I. BACKGROUND

This case arises out of a motor vehicle collision that occurred on September 7,

2018, in Jasper County, South Carolina. Plaintiff was traveling in the southbound lane on

Whyte Hardee Boulevard in Hardeeville, South Carolina at around 8:38 p.m. on

September 7, 2018. Defendant Alfredo Rullo (“Rullo”)1 was traveling in the southbound

lane on Whyte Hardee Boulevard at the same time. The complaint alleges that Rullo

attempted to make an improper lane change and struck plaintiff’s vehicle, resulting in

serious injuries to plaintiff. The traffic collision report prepared by the responding officer

stated that Rullo’s address was 3 B Crabtree Court, Palm Coast, Florida. ECF No. 7-3.

It is undisputed that Rullo passed away on June 1, 2019. ECF No. 1-1 at 27; ECF

No. 9 at 9. Not knowing that Rullo was deceased, plaintiff filed a complaint in the Jasper

1 The court refers to defendant as “Rullo” (as opposed to the Estate or Harry C.

Brown) in this order in alignment with the parties’ briefs and to distinguish the Estate

Action, which was specifically filed against Harry C. Brown, as special administrator.

County Court of Common Pleas on January 29, 2021, alleging a negligence claim against

Rullo (the “State Court Action”). ECF No. 1-1, Compl. On February 5, 2021, plaintiff

attempted to serve Rullo via a process server at his address but was unsuccessful. ECF

No. 7-2. Pursuant to S.C. Code Ann. § 15-9-350, plaintiff then served the summons and

complaint to the director of the South Carolina Department of Motor Vehicles

(“SCDMV”). ECF No. 7-11. SCDMV sent a copy of the summons and complaint by

certified mail to Rullo’s address at 3 B Crabtree Court, Palm Coast, Florida. Efforts to

locate Rullo continued to be unsuccessful, and on August 24, 2021, the Jasper County

clerk of court issued an order of publication ordering that the summons for the lawsuit be

published once a week for three consecutive weeks in a newspaper of general circulation

in Rullo’s last known county. ECF No. 7-5. A copy of the summons was published in

the Daytona Beach News-Journal on September 3, 10, and 17, 2021. ECF No. 7-6.

On December 13, 2021, Rullo’s attorneys filed a motion to dismiss or, in the

alternative, motion for summary judgment. ECF No. 7-7. The motion revealed that

Rullo passed away in Alachua County, Florida on June 1, 2019. Id. at 1. Judge Carmen

T. Mullen of the Jasper County Court of Common Pleas denied the motion. ECF No. 1-1

at 69. On April 7, 2022, Rullo’s attorneys filed a motion to alter or amend, ECF No. 1-1

at 75–85, but before Judge Mullen ruled on the motion, Rullo’s attorneys removed the

action to this court on May 23, 2022, ECF No. 1.

On March 24, 2022, plaintiff filed a separate action in the Jasper County Court of

Common Pleas against Harry C. Brown, as special administrator for the Estate of Alfredo

Rullo (the “special administrator”). ECF No. 7-8. On April 22, 2022, plaintiff served the

special administrator with the summons and complaint for that case, bearing Civil Case

No. 2022-CP-27-00135 (hereinafter, the “Estate Action”). On May 31, 2022, plaintiff

filed a motion for leave to amend the complaint or, in the alternative, to consolidate the

Estate Action with the instant action. At the time of this order, Judge Mullen has not

ruled on that motion, and the Estate Action remains in state court.

In the instant action, plaintiff filed a motion to remand to state court on June 8,

2022. ECF No. 7. Rullo responded to the motion on June 22, 2022, ECF No. 9, and

plaintiff replied on June 29, 2022, ECF No. 10.2 As such, the motion has been fully

briefed and is now ripe for review.

II. STANDARD

Federal courts are of constitutionally limited jurisdiction. “The party seeking

removal bears the burden of demonstrating that removal jurisdiction is proper,” In re

Blackwater Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006), and doubts

regarding the propriety of removal are to be resolved in favor of retained state court

jurisdiction, Baxley v. Advance Auto Parts, Inc., 2011 WL 586072 at *1 (D.S.C. Feb. 9,

2011) (citing Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).

Because removal raises significant federalism concerns, “[i]f federal jurisdiction is

doubtful, a remand is necessary.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d

148, 151 (4th Cir. 1994).

Generally, 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 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(a). Original jurisdiction exists where a claim

2 Rullo also filed a motion for summary judgment on May 23, 2022. ECF No. 4.

arises under federal law, see 28 U.S.C. § 1331, or where the amount in controversy

exceeds the sum or value of $75,000 and the claim is between citizen of different states,

see 28 U.S.C. § 1332.

III. DISCUSSION

Plaintiff bases her motion to remand on two alternative theories: (1) that the court

does not have jurisdiction over her claim because the amount in controversy does not

exceed $75,000, and (2) that Rullo’s removal is untimely. Although plaintiff relies on

both 28 U.S.C. § 1446(b)(1) and 28 U.S.C. § 1446(c)(1) to argue untimeliness, the

motion is more easily and accurately resolved under § 1446(b)(1). The court remands

this action on that basis without addressing the one-year-rule or amount-in-controversy.

Finding that remand is proper, the court then addresses Brown’s request for attorneys’

fees.

A. Thirty-Day Rule

The right of a defendant to remove a case to federal court is derived solely from

28 U.S.C. § 1441. A defendant can waive his right to removal by failing to comply with

the removal procedures prescribed by 28 U.S.C. § 1446. A defendant seeking to remove

a case must file his notice of removal “within 30 days after the receipt by the defendant,

through service or otherwise, of a copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). Where a

case is not initially removable but later becomes removable, a notice of removal may be

filed “within thirty days after receipt by the defendant, through service or otherwise, 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.” 28 U.S.C.

§ 1446(b)(3).

Under § 1446(b), the thirty-day removal clock begins to run when a defendant

receives a pleading, motion, or other paper that reveals “on its face” a basis for federal

jurisdiction. In Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997), the

Fourth Circuit ruled that courts need not inquire into the subjective knowledge of the

defendant but instead should “rely on the face of the initial pleading and on the

documents exchanged” by the parties to determine when the defendant had notice of the

grounds for removal. Here, plaintiff filed the summons and complaint in the State Court

Action on January 29, 2021. Rullo did not remove the action until May 23, 2022. Rullo

contends that this case is removable based on diversity jurisdiction, ECF No. 1 at 3, but

plaintiff did not amend her complaint after it was first filed in state court. Therefore, if

the court were to find that the case is removable based on diversity jurisdiction, the case

would have been removable on the face of the pleading. In short, Rullo sought to remove

the action 479 days after the complaint was filed and, as the court discusses below, Rullo

had notice of the complaint and its eligibility for removal under diversity jurisdiction well

beyond the thirty-day removal window as well.

To get around waiver under § 1446(b)(1)’s deadline, Rullo argues that plaintiff

was required to bring this suit under S.C. Code § 15-5-130. That statute provides that

when a nonresident who caused injuries while operating a motor vehicle on the public

highways of South Carolina is deceased, any interested person may apply to the probate

court for the appointment of a personal representative of the deceased wrongdoer, and

upon such appointment, may commence an action against the personal representative.

S.C. Code § 15-5-130. Rullo further contends that as of the date of his filing, plaintiff

has failed to prove that she properly commenced suit and effectuated proper service

under § 15-5-130 because the section provides that service of process must be made upon

the personal representative, and a copy of process should be mailed to the address of the

deceased person. Id.

Rullo’s argument is unavailing. Rullo, in essence, seeks to have this court rule on

the substance of the complaint by finding that it was improperly filed in light of S.C.

Code § 15-5-130. But as a matter of procedure, there is no reason at all why Rullo could

not have removed this action earlier to have this court test the sufficiency of the

complaint under that basis. Rullo somehow reads an exception into either the statutory

rules or the Federal Rules of Civil Procedure that allows a litigant to delay under

§ 1446(b) if he believes the action was not properly filed. But no such rule exists. To the

extent that Rullo argues that plaintiff should have initiated the Estate Action as the proper

channel to settle this dispute, that argument similarly has no import on whether removal

is proper here. See Wisconsin v. Amgen, Inc., 516 F.3d 530, 533 (7th Cir. 2008)

(explaining that the “language of section 1446(b) . . . refers, as most cases hold . . . to

pleadings, etc., filed in the suit sought to be removed, not in some other suit”). As Rullo

himself points out, the Estate Action is an entirely separate action. See ECF No. 9 at 1–2

(“The Plaintiff has filed two causes of action: Case No.: 2021-CP-27-00030 and Case

No.: 2022-CP-27-00135. The first case, 2021-CP-27-00030 is the only one before this

Court.”). Rullo could have removed the State Court Action within thirty days of

receiving notice of the pleadings and litigated whether it should be dismissed in favor of

a properly-filed probate action. But Rullo did not. Instead, he filed a substantive motion

in state court—a motion to dismiss or, in the alternative, a motion for summary

judgment—in an attempt to have the action dismissed by the state court judge. ECF No.

7-7. When the state court disagreed, Rullo apparently sought to remove the action to this

court for a second bite at the apple.

To be sure, there is some lack of clarity as to when Rullo’s attorneys received the

initial pleading. But regardless of when the court ascribes the date of receipt to his

attorneys, Rullo’s removal is untimely even by the latest of possible dates. For example,

the court could certainly find, as at least two other district courts have, that proper receipt

of service may occur via publication for purposes of § 1446(b). See Hervill Grp. Corp. v.

E-Trans Consulting Corp., 2014 WL 12887521, at *3 (D.P.R. Mar. 31, 2014) (holding

that the defendants “were served with a copy of the complaint via publication on July 16,

2010” and because they did not file their notice of removal within thirty days from that

service, the defendants’ removal “was untimely”); Green Tree Servicing, LLC v.

Williams, 2014 WL 2865905, at *2 (N.D. Ill. June 24, 2014) (explaining that the

defendant was served via publication on November 29, 2013, and such service “was

adequate to trigger Section 1446(b)(1)’s 30 day requirement”). Here, Rullo was served

via publication on September 17, 2021 at the latest, ECF No. 7-6, but not did not file his

notice of removal until May 23, 2022, ECF No. 1, which is 248 days later—well beyond

the thirty-day limit.

But even if the court construes the facts in Rullo’s utmost favor, Rullo was

positively in receipt of the pleading by December 13, 2021, the date that his attorneys

filed the motion to dismiss or, in the alternative, for summary judgment in the State Court

Action. ECF No. 7-7. He did not file notice of his removal until 161 days later.

Miraculously, even if the court goes a step further and considers the date that plaintiff

served the special administrator in the Estate Action as the date that Rullo’s attorneys

could ascertain removability in this matter—an unfathomable proposition—Rullo’s

removal would still be untimely. Plaintiff served the special administrator in the Estate

Action on April 22, 2022, ECF No. 9 at 7, and Rullo did not file the notice of removal in

this action until May 23, 2022—thirty-one days later.

In short, Rullo could have removed this action thirty days after receiving a

pleading, motion, order, or other paper noticing the removability of the lawsuit and then

filed his motion to dismiss in this court, instead of in state court. No matter which way

the court slices it, Rullo failed to remove the case within thirty days of receipt of the

initial pleading or of a paper that revealed a basis for federal jurisdiction. Accordingly,

the court finds that removal was untimely on this basis alone and remands the case to the

court where this action originated.

B. Attorneys’ Fees

Plaintiff also requests an award of attorneys’ fees and costs. “An order remanding

the case may require payment of just costs and any actual expenses, including attorney

fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual

circumstances, courts may award fees under § 1447(c) only where the removing party

lacked an objectively reasonable basis for removal.” Martin v. Franklin Cap. Corp., 546

U.S. 132, 136 (2005); see also In re Lowe, 102 F.3d 731, 733 n.2 (4th Cir. 1996) (citation

omitted) (finding an award of attorneys’ fees and costs appropriate under § 1447(c)

where “‘a cursory examination . . . would have revealed’ a lack of federal jurisdiction”).

Attorneys’ fees are appropriate in a variety of situations, including untimely removal and

erroneous legal arguments, if the party seeking removal lacks an objectively reasonable

basis for removal. See LaMotte v. Roundy’s, Inc., 27 F.3d 314, 316 (7th Cir. 1994)

(holding that an award under § 1447(c) is appropriate whether remand is based on

jurisdictional defect or a defect in the removal procedure); Phillips v. Extra Space Mgmt.,

Inc., 2020 WL 571914, at *3 (W.D.N.C. Feb. 5, 2020) (holding that attorneys’ fees may

be appropriate for cases of “untimely removal, removal based on an erroneous legal

argument, repetitive removals, and removal which greatly increases the cost and/or

complexity of the case”). The decision to award fees is ultimately at the discretion of the

court. 28 U.S.C. § 1447(c); Martin, 546 U.S. at 136.

Since the court did not reach the issue of whether the complaint plausibly alleges

an amount in controversy that exceeds the jurisdictional threshold, the principal issue

here is whether it was objectively reasonable for defendants to file their notice of removal

even though it was untimely.

Due to the discretionary construct of 28 U.S.C. § 1447(c), district courts in the

Fourth Circuit have reached different conclusions as to when awarding attorneys’ fees is

appropriate based on untimely notice of removal. For example, in one case, the Middle

District of North Carolina awarded attorneys’ fees based on a multitude of factors.

McPhatter v. Sweitzer, 401 F. Supp. 2d 468, 479 (M.D.N.C. 2005). The court found that

the notice of removal was untimely, that it was the second removal and based on

substantially the same grounds the court rejected in the first removal, that there had been

significant progress in the state proceedings, and that the defendant had a history of

untimely removal—all of which provided a basis for awarding attorneys’ fees. Id. Other

courts in the Fourth Circuit have found that the award of attorneys’ fees is not appropriate

when remand was based on solely on untimely notice of removal. See, e.g., Huber Tech.,

Inc. v. Gowing Contractors Ltd., 2019 WL 4491532, at *4 (W.D.N.C. Sept. 18, 2019);

Phillips, 2020 WL 571914, at *3. In Huber Tech, the district court did not award

attorneys’ fees because it found that “absent an untimely notice of removal, removal

would have been proper on the basis of diversity jurisdiction.” 2019 WL 4491532, at *4.

In Phillips, although the district court held that the “[d]efendant filed an untimely motion

to remove and a responsible review of Plaintiff’s claims should have revealed the

diversity jurisdiction when Plaintiff first served [the] Defendant with her complaint,” the

court still found that attorneys’ fees were inappropriate. Phillips, 2020 WL 571914, at

*3.

Despite the court’s skepticism as to Rullo’s arguments, the court finds that

awarding attorneys’ fees is inappropriate. On one hand, 28 U.S.C. § 1446(b)(1) is

unambiguous: the notice of removal must be filed within thirty days of receipt of the

initial pleading, regardless of whether the defendant believes that the complaint is

otherwise defective. A “cursory examination” of 28 U.S.C. §§ 1446(b)(1) and (b)(3)

would have revealed that Rullo had long surpassed the thirty-day deadline for noticing

removal. And there is no objectively reasonable basis for finding that Rullo was not in

receipt of a pleading or other paper indicating that the case was removable, despite

Rullo’s subjective belief that plaintiff had yet to commence a proper suit pursuant to S.C.

Code § 15-5-130.

On the other hand, unlike in McPhatter, Rullo did not amend his notice of

removal to argue other issues before the court. Importantly, the untimely filing does not

appear to have resulted in a substantial delay in the state court proceedings, particularly

because the Estate Action appears to be in its early stages. Furthermore, absent the

untimeliness of the notice, the court finds it reasonably likely that the action would have

otherwise been removable.? Therefore, the court denies plaintiff's request for an award

of attorneys’ fees.

IV. CONCLUSION

For the reasons set forth above, the court GRANTS the motion to remand.

AND IT IS SO ORDERED.

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

October 17, 2022

Charleston, South Carolina

3 Although the court need not and does not fully analyze whether there was a

reasonable probability that the amount-in-controversy requirement is satisfied, the court

notes that plaintiff's primary argument on this issue—that she has only demanded an

amount up to the policy limit of $50,000 in settlement discussions—is not dispositive.

See White v. Newrez, LLC, 2022 WL 1920696, at *2 (S.D. W. Va. June 3, 2022)

(declining to consider a settlement demand that fell short of the jurisdictional amount as

proof that the amount in controversy is less than $75,000 because such offers routinely

represent a discount from the damages plaintiffs will attempt to prove at trial).

11