John Hatcher v. Ron Ferguson , 664 F. App'x 308 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1501
JOHN D. HATCHER, individually and as members of the
Architectural Committee of Mill Creek Estates; RACHEL
SHALULY, individually and as members of the Architectural
Committee of Mill Creek Estates; JAMES F. GILBERT,
individually and as members of the Architectural Committee
of Mill Creek Estates; MOLLY A. MILLER, individually and as
members of the Architectural Committee of Mill Creek
Estates; MICHAEL STEHNEY, individually and as members of
the Architectural Committee of Mill Creek Estates,
Plaintiffs - Appellees,
v.
RON FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:15-cv-05032-TMC)
Submitted: October 31, 2016 Decided: November 15, 2016
Before GREGORY, Chief Judge, and AGEE and THACKER, Circuit
Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Ron Ferguson, Appellant Pro Se. Rodney M. Brown, RODNEY M.
BROWN, PA, Fountain Inn, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This appeal arises from a civil action filed in April 2013
in South Carolina state court by John D. Hatcher, Rachel
Shaluly, James F. Gilbert, Molly A. Miller, and Michael Stehney,
individually and as members of the Architectural Committee of
Mill Creek Estates (collectively, “Plaintiffs”), against
Defendant “Ron Ferguson.” * Following two unsuccessful attempts
to remove the case to federal district court, Ferguson again
removed the action in December 2015, purportedly on the basis of
diversity jurisdiction under 28 U.S.C §§ 1332, 1441 (2012).
Plaintiffs moved to remand the case again to state court and
sought an order prohibiting Ferguson from further remand
attempts. The district court adopted the magistrate judge’s
recommendation to grant Plaintiffs’ motion. Ferguson now seeks
to appeal the district court’s order, challenging both the
court’s decision to remand and its prohibition on future
removals. For the reasons that follow, we dismiss the appeal in
part and affirm the district court’s order in part.
*
We note that the record and Ferguson’s appellate briefs
give rise to some question as to the identity of the properly
joined parties to this action. Although we rely on the party
designation assigned by the district court, we note that our
disposition is unaffected by this dispute, regardless of whether
the proper defendant is Ronald E. Ferguson, Susan Ferguson,
Ronald J. Ferguson, or some combination of these individuals.
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“Congress has placed broad restrictions on the power of
federal appellate courts to review district court orders
remanding removed cases to state court.” Things Remembered,
Inc. v. Petrarca, 516 U.S. 124, 127 (1995). Remand orders
generally are “not reviewable on appeal or otherwise.”
28 U.S.C. § 1447(d) (2012). However, the Supreme Court has
explained that the restrictions on appellate review described in
Ҥ 1447(d) must be read in pari materia with [28 U.S.C.
§ 1447(c) (2012)], so that only remands based on grounds
specified in § 1447(c) are immune from review under § 1447(d).”
Things Remembered, 516 U.S. at 127. Thus, § 1447(d) prohibits
appellate review only of remand orders “based on (1) a district
court’s lack of subject matter jurisdiction or (2) a defect in
removal other than lack of subject matter jurisdiction that was
raised by the motion of a party within 30 days after the notice
of removal was filed.” Ellenburg v. Spartan Motors Chassis,
Inc., 519 F.3d 192, 196 (4th Cir. 2008) (internal quotation
marks omitted); see Doe v. Blair, 819 F.3d 64, 67 (4th Cir.
2016).
“[A] district court’s mere citation to § 1447(c) is
insufficient to bring a remand order within the purview of that
provision.” In re Blackwater Sec. Consulting, LLC, 460 F.3d
576, 584 (4th Cir. 2006). Before exercising appellate review
over a remand order, we first must evaluate the order’s
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substantive reasoning “to determine whether it was issued based
upon the district court’s perception that it lacked subject
matter jurisdiction.” Blair, 819 F.3d at 67 (internal quotation
marks omitted).
Here, the district court remanded the action after
concluding that it could not exercise diversity subject matter
jurisdiction because the parties were not completely diverse at
the time of removal. The defect identified by the district
court is not a defect in subject matter jurisdiction, but
instead a procedural defect based on Ferguson’s failure to meet
the statutory requirements of § 1441(a). See Grupo Dataflux v.
Atlas Global Grp., L.P., 541 U.S. 567, 574 (2004); Caterpillar
Inc. v. Lewis, 519 U.S. 61, 73 (1996). Because we conclude
Plaintiffs adequately identified and relied upon this defect in
their timely motion to remand, we conclude we lack jurisdiction
to review the court’s decision to remand. Further, insofar as
Ferguson attempts to challenge the district court’s alternative
holding that remand was warranted because the removal notice was
untimely under 28 U.S.C. § 1446(c) (2012), we conclude the issue
is moot and decline to address it.
While review of the district court’s remand order is
precluded under 28 U.S.C. § 1447(d), that statute does not
preclude our review of the portion of the court’s order
prohibiting future removals. See Barlow v. Colgate Palmolive
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Co., 772 F.3d 1001, 1008-09 (4th Cir. 2014). We review a
district court’s decision to impose sanctions for abuse of
discretion. See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d
812, 817 (4th Cir. 2004); Chaudhry v. Gallerizzo, 174 F.3d 394,
410 (4th Cir. 1999). In so doing, we may affirm for any reason
appearing from the record. See United States v. Basham, 789
F.3d 358, 379 (4th Cir. 2015), cert. denied, 136 S. Ct. 1449
(2016).
The All Writs Act, 28 U.S.C. § 1651(a) (2012), permits
federal courts to “limit access to the courts by vexatious and
repetitive litigants.” Cromer, 390 F.3d at 817; see Chambers v.
NASCO, Inc., 501 U.S. 32, 44-45 (1991). Although this “drastic
remedy” is to be used only sparingly to confront exigent
circumstances, filing limitations may be appropriate to address
“a litigant’s continuous abuse of the judicial process” through
“meritless and repetitive” filings. Cromer, 390 F.3d at 817.
As the district court recognized, the removal statutes
should not be manipulated to permit “strategic delay interposed
by a defendant in an effort to determine the state court's
receptivity to his litigating position.” Lovern v. Gen. Motors
Corp., 121 F.3d 160, 163 (4th Cir. 1997). The record of the
proceedings in state court and this court amply supported the
district court’s determination that Ferguson’s repeated removals
were intended to manipulate the removal process for strategic
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reasons. Ferguson was provided notice of the proposed sanction
and an opportunity to respond, and the court’s prohibition was
narrowly tailored to the circumstances at hand. See Cromer, 390
F.3d at 818-19. We therefore discern no abuse of discretion in
the district court’s decision to prohibit Ferguson from future
attempts to remove the same state court action.
Accordingly, we dismiss the appeal in part, insofar as it
seeks review of the district court’s decision to remand the
action to state court. We affirm the district court’s order in
part, insofar as it bars Ferguson from future removal attempts.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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