Monaghan v. AT&T Corp et al
| Terri Lynn Monaghan |
| AT&T Corp, Calligaris USA Inc, AT&T Services, Inc., AT&T Mobility Services, LLC a/k/a AT&T Mobility Services, New Cingular Wireless PCS, LLC and Burroughs & Chapin Co. Inc. |
| 4:2022cv01335 |
| April 26, 2022 |
| US District Court for the District of South Carolina |
| R Bryan Harwell |
| Personal Inj. Prod. Liability |
| 28 U.S.C. § 1332 Diversity-Product Liability |
| Defendant |
Docket Report
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| Filing 39 ***DOCUMENT E-MAILED: 35 TEXT Order (true, certified copy) Renee Elvis, Horry County Clerk of Court of Horry County and MAILED (via US Mail) from Florence Clerks Office to Horry County Clerk's Office, PO Box 677, Conway, SC 29528-0677 (attn Renee Elvis). (mcot, ) |
| Filing 37 DELETION OF ECF No. 36 . Reason: Case was remanded to state court on Jan. 31, 2023 (see ECF No. 35). (mcot, ) |
Filing 35
TEXT ORDER granting in part Plaintiff Terri Lynn Monaghan's #25 motion to amend complaint to add Burroughs & Chapin Co., Inc. as a party Defendant. It should be noted that there is no opposition to adding Burroughs & Chapin Co., Inc. as a party Defendant based on their ownership of the premises on which the alleged injury occurred. Rule 15(a)(2) provides that "a party may amend its pleadings only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). "This directive gives effect to the federal policy in favor of resolving cases on the merits instead of disposing of them on technicalities.'" Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). A request to amend should only be denied if one of three facts is present: "the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). Plaintiff's motion was filed within the time frame set forth in the scheduling order for motions to amend pleadings. There is no bad faith on the part of Plaintiff and Defendant Burroughs and Chapin will suffer no prejudice from the proposed amendment to the complaint. Based on the facts alleged in the proposed amended complaint, Plaintiff's claims against Burroughs and Chapin are not futile. Of course, Burroughs and Chapin is a South Carolina corporation. See https://businessfilings.sc.gov/BusinessFiling/Entity/Profile/3fc88649-ce26-4f44-9508-69426da3b34a (last visited January 31, 2023). When a plaintiff seeks to join a nondiverse defendant after the case has been removed, the district court's analysis begins with 28 U.S.C. 1447(e), which provides the district court with two options: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." These are the only two options for a district court faced with a post-removal attempt to join a nondiverse defendant. Mayes v. Rapoport, 198 F.3d 457, 46162 (4th Cir. 1999). Here, there is no opposition to the joinder of the Burroughs and Chapin, a non-diverse defendant. Thus, diversity jurisdiction is destroyed and the Court sua sponte REMANDS the matter to the Horry County Court of Common Pleas. Plaintiff's #25 motion to amend the complaint to add Burroughs and Chapin Co., Inc. is GRANTED in part. The Court declines to rule on Plaintiff's request to add the additional defendants and leaves the matter to the sound discretion of the state court. This case is hereby REMANDED to the Horry County Court of Common Pleas. Signed by Chief Judge R Bryan Harwell on 1/31/2023.(tmcb, )
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Filing 34
FOURTH CONSENT AMENDED SCHEDULING ORDER: Plaintiffs ID of Expert Witness due by 3/17/2023, Defendants ID of Expert Witnesses Due by 4/18/2023, Records Custodian Affidavit due by 6/23/2023, Discovery due by 6/30/2023, Motions due by 7/14/2023, Rule 26(a)(3) Disclosures due by 7/26/2023, ADR Statement due by 5/10/2023, Mediation Due by 6/9/2023. Motions in limine must be filed at least three weeks prior to 9/5/2023. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. This case is subject to being called for jury selection and/or trial on or after 9/29/2023. Signed by Chief Judge R Bryan Harwell on 1/23/2023. (hcic, )
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Filing 33
TEXT ORDER granting #32 Motion to Amend Scheduling Order. Signed by Chief Judge R Bryan Harwell on 1/23/2023. (hcic, )
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| Filing 32 Consent MOTION to Amend/Correct Scheduling Order by Terri Lynn Monaghan. Response to Motion due by 2/3/2023. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Eaves, Priscilla) (Main Document 32 replaced on 1/23/2023 with corrected document provided by filer) (hcic, ). |
| Filing 31 NOTICE of Request for Protection from Court Appearance by Ian D Maguire for 3/31/23 - 4/10/23 (Maguire, Ian) |
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Filing 30
THIRD CONSENT AMENDED SCHEDULING ORDER: Plaintiffs ID of Expert Witness due by 1/30/2023, Defendants ID of Expert Witnesses Due by 3/2/2023, Records Custodian Affidavit due by 4/28/2023, Discovery due by 4/28/2023, Motions due by 5/11/2023, Rule 26(a)(3) Disclosures due by 6/26/2023, ADR Statement due by 5/10/2023, Mediation Due by 6/9/2023. Motions in limine must be filed at least three weeks prior to 7/3/2023. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. This case is subject to being called for jury selection and/or trial on or after 7/28/2023. Signed by Chief Judge R Bryan Harwell on 12/27/2022. (hcic, )
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Filing 29
TEXT ORDER granting #28 Motion to Amend Scheduling Order. Signed by Chief Judge R Bryan Harwell on 12/27/2022.(hcic, )
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| Filing 28 Consent MOTION to Amend/Correct Scheduling Order by Terri Lynn Monaghan. Response to Motion due by 1/6/2023. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Eaves, Priscilla) (Main Document 28 replaced on 12/29/2022 with corrected document provided by filer) (hcic, ). |
| Filing 27 REPLY to Response to Motion re #25 MOTION to Amend/Correct Complaint Plaintiff's Response filed by Terri Lynn Monaghan. (Attachments: #1 Exhibit 1 -Email re Non Consent to Amendment, #2 Exhibit 2 Horry County Land Records)(Eaves, Priscilla) Modified on 12/5/2022 to add descriptive names to exhibits (hcic, ). |
| Filing 26 RESPONSE in Opposition re #25 MOTION to Amend/Correct Complaint Response filed by AT&T Corp.Reply to Response to Motion due by 12/5/2022 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: #1 Exhibit 1 - Builder emails, #2 Exhibit 2 - Affidavit of Phillips)(Builder, Lindsay) |
| Filing 25 MOTION to Amend/Correct Complaint by Terri Lynn Monaghan. Response to Motion due by 11/28/2022. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: #1 Exhibit Proposed Amended Complaint)Proposed order is being emailed to chambers with copy to opposing counsel.(Eaves, Priscilla) |
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Filing 24
CONSENT AMENDED SCHEDULING ORDER. Motions to Amend Pleadings due by 11/21/2022, Plaintiffs ID of Expert Witness due by 12/28/2022, Defendants ID of Expert Witnesses Due by 1/27/2023, Records Custodian Affidavit due by 1/27/2023, Discovery due by 3/28/2023, Motions due by 4/11/2023, Rule 26(a)(3) Disclosures due by 5/26/2023, ADR Statement due by 4/9/2023, Mediation Due by 5/9/2023. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. This case is subject to being called for jury selection and/or trial on or after 6/30/2023. Signed by Chief Judge R Bryan Harwell on 9/22/2022. (hcic, )
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Filing 23
TEXT ORDER granting #22 Motion to Amend Scheduling Order. Signed by Chief Judge R Bryan Harwell on 9/22/2022.(hcic, )
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| Filing 22 Consent MOTION for Extension of Time by Terri Lynn Monaghan. Response to Motion due by 10/6/2022. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Maguire, Ian) |
| Filing 21 NOTICE of Request for Protection from Court Appearance by Ian D Maguire for 9/29/22 to 10/12/22 (Maguire, Ian) |
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Filing 20
CONSENT AMENDED SCHEDULING ORDER: Motions to Amend Pleadings due by 9/23/2022, Plaintiffs ID of Expert Witness due by 10/25/2022, Defendants ID of Expert Witnesses Due by 11/25/2022, Records Custodian Affidavit due by 11/25/2022, Discovery due by 1/27/2023, Motions due by 2/10/2023, Rule 26(a)(3) Disclosures due by 3/27/2023, ADR Statement due by 2/8/2023, Mediation Due by 3/10/2023. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. This case is subject to being called for jury selection and/or trial on or after 5/1/2023. Signed by Chief Judge R Bryan Harwell on 6/6/2022. (hcic, )
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| Filing 19 Local Rule 26.03 Answers to Interrogatories by Calligaris USA Inc.(Hanna, George) |
| Filing 18 Local Rule 26.03 Answers to Interrogatories by AT&T Corp.(Builder, Lindsay) |
| Filing 17 Local Rule 26.03 Answers to Interrogatories by Terri Lynn Monaghan.(Maguire, Ian) |
| Filing 16 Joint Rule 26 Outline of Discovery Plan by Terri Lynn Monaghan.(Maguire, Ian) |
| Filing 15 Joint Rule 26(f) Report by Terri Lynn Monaghan.(Maguire, Ian) |
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Filing 14
TEXT ORDER: Having reviewed the parties' responses to the Court's TEXT SUA SPONTE ORDER TO SHOW CAUSE, the Court is satisfied that the amount in controversy exceeds the jurisdictional amount and it has diversity jurisdiction over this matter pursuant to 28 U.S.C. 1332. Signed by Chief Judge R Bryan Harwell on 5/3/2022. (tmcb, )
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| Filing 13 Local Rule 26.01 Answers to Interrogatories by Terri Lynn Monaghan.(Maguire, Ian) |
| Filing 12 REPLY by Terri Lynn Monaghan to #11 Response to Order to Show Cause . (Maguire, Ian) |
| Filing 11 RESPONSE TO ORDER TO SHOW CAUSE by Calligaris USA Inc. (Hanna, George) |
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Filing 9
SUA SPONTE TEXT ORDER TO SHOW CAUSE: The Defendants removed this case from state court pursuant to 28 U.S.C. 1441 and 1446. Under 1441(a), a defendant is permitted to remove a case to federal court if the court would have had original jurisdiction over the matter. District courts have original jurisdiction "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)(1). In the instant case, the Defendants base federal jurisdiction upon diversity jurisdiction pursuant to 1332. However, the Plaintiff did not specify any monetary amount of damages or clearly allege the jurisdictional amount in the Complaint, and the Defendants' notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount. Thus, the amount in controversy is unclear, and this Court may lack diversity jurisdiction. Removal statutes are strictly construed against removal, and any doubts concerning the propriety of removal must be resolved in favor of retained state court jurisdiction. Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993). In addition,"[t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is proper." In Re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006) (citation omitted). This includes establishing compliance with the removal statute requirements. See Marler v. Amoco Oil Co., 793 F. Supp. 656, 658-59 (E.D.N.C. 1992). Courts must narrowly interpret removal jurisdiction because of the significant federalism concerns that are raised by removing proceedings from state court. Id. Thus, all doubts are resolved in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). THEREFORE, IT IS ORDERED that, not later than five calendar days from the filing of this Order, Defendants shall brief the Court and SHOW CAUSE why this case should not be remanded to the State court for the foregoing reasons. Plaintiff shall file a response not later than five calendar days thereafter and, in that response, include a clarification as to whether Plaintiff intended to pursue, at the time of filing the original complaint, damages in excess of the jurisdictional amount of $75,000. If Plaintiff did not intend to pursue damages adequate to satisfy the jurisdictional threshold at the time of filing and if Plaintiff stipulates to such limitation having a binding effect, the Court will remand this matter to state court. Failure to comply with this order may result in dismissal without prejudice of Plaintiff's case. Signed by Chief Judge R Bryan Harwell on 4/28/2022. (tmcb, )
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Filing 8
CONFERENCE AND SCHEDULING ORDER: Rule 26(f) Conference Deadline 5/18/2022, 26(a) Initial Disclosures due by 6/1/2022, Rule 26 Report due by 6/1/2022, Motions to Amend Pleadings due by 7/27/2022, Plaintiffs ID of Expert Witness due by 8/26/2022, Defendants ID of Expert Witnesses Due by 9/26/2022, Records Custodian Affidavit due by 9/26/2022, Discovery due by 11/28/2022, Motions due by 12/13/2022, Rule 26(a)(3) Disclosures due by 1/26/2023, ADR Statement due by 12/12/2022, Mediation Due by 1/11/2023. Motions in limine must be filed at least three weeks prior to the date set for jury selection. Responses to motions in limine shall be filed within seven (7) days after the motion is filed. Parties shall furnish the Court pretrial briefs seven (7) days prior to the date set for jury selection. This case is subject to being called for jury selection and/or trial on or after 3/2/2023. Signed by Chief Judge R Bryan Harwell on 4/28/2022. (hcic, )
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| Filing 6 ANSWER to Complaint by Calligaris USA Inc.(Hanna, George) |
| Filing 5 Local Rule 26.01 Answers to Interrogatories by AT&T Corp.(Builder, Lindsay) |
| Filing 4 ANSWER to Complaint by AT&T Corp.(Builder, Lindsay) |
| Filing 3 Local Rule 26.01 Answers to Interrogatories by Calligaris USA Inc.(hcic, ) |
| Filing 1 NOTICE OF REMOVAL from Horry County Court of Common Pleas, case number 2022-CP-26-01675 (filing fee $402 receipt number ASCDC-10462242), filed by Calligaris USA Inc. (Attachments: #1 State Court Documents)(hcic, ) Modified on 4/27/2022 to correct filing date (hcic, ). |
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