
    Lynn J. MORGAN, Plaintiff, v. SUITE 12, INC. n/k/a The InStore Group, LLC., Defendant.
    CIVIL ACTION NO. 6:15-04652-MGL
    United States District Court, D. South Carolina, Greenville Division.
    Signed 05/26/2016
    
      H. Michael Spivey, Mauldin, SC, for Plaintiff,
    Benjamin Fryer, Moore and Van Allen, Charlotte, NC, E. Brandon Gaskins, Moore and Van Allen, Charleston, SC, Michael Montgomery Shetterly, Ogletree Deakins. Nash Smoak and Stewart, Green-ville, SC, for Defendant.
   ORDER ADOPTING THE REPORT AND RECOMMENDATION AND REMANDING THIS MATTER TO THE SOUTH CAROLINA COURT OF COMMON PLEAS, IN GREEN-VILLE COUNTY

MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE

This case was filed as an employment discrimination action. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that it be remanded to the South Carolina Court of Common Pleas in Greenville County. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 649, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review, however, “when a party makes general and conclusory objections that do not direct the [CJourt to a specific error in the [Magistrate Judge’s] proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982); see Fed. R. Civ. P.’72(b). Thus, the Court will address each specific objection to the Report in turn. As provided above, however, the Court need not—and will not—address any of Defendant’s arguments that fail to point the Court to alleged specific errors that the Magistrate Judge made in the Report.

The Magistrate Judge, filed the Report on April 13, 2016, Defendant filed its objections to the Report on May 2, 2016, and Plaintiff filed her reply on May 18, 2016. The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

Defendant raises several objections to the Magistrate Judge’s Report. However, Defendant has largely left the Court with the chore of teasing the objections out of Defendant’s submissions. Having completed that task, the Court will now address the objections it has uncovered.

Defendant initially objects to the Magistrate Judge’s suggestion that the Court has no subject matter jurisdiction over Plaintiffs wrongful discharge and sexual harassment causes of action. ECF No. 24 at 2; ECF No. 25 at 1-2. Defendant contends that Plaintiff has apparently conceded that her wrongful discharge and sexual harassment claims were brought under federal law, namely the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5), and Title YII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, respectively. ECF No. 24 at 2; ECF No. 25 at 1-2. Defendant further propounds that Plaintiffs wrongful discharge and sexual harassment claims exist only under federal law, and therefore this Court has original' jurisdiction over those claims. ECF No. 25 at 2-3.

However, the Magistrate Judge properly recommended that this matter be remanded to state court. As noted in the Report, Plaintiffs “Complaint does not cite any federal statute, nor mention any federal common law cause of action.” ECF No. 23 at 4. As observed already, Defendant asseverates, however, that Plaintiffs wrongful discharge and sexual harassment claims can exist only under federal law, and therefore Plaintiff does not have a claim under state law with respect to these two causes of action. ECF No. 25 at 2-3 (citing Lawson v. S.C. Dep’t of Corrections, 340 S.C. 346, 532 S.E.2d 259, 261 (2000) (ruling that a plaintiff cannot bring a South Carolina common law claim for “wrongful discharge” where the alleged discharge is in violation of a substantive right created by statute); White v. Benedict Coll., 288 S.C. 572, 344 S.E.2d 147, 148 (1986) (holding that South Carolina does not recognize a common law cause of action for sexual harassment)).

Nevertheless, Defendant’s contentions are fundamentally misguided. The cases Defendant cites are inapposite.’ Although South Carolina does not recognize common law causes of action for sexual harassment or for wrongful discharge where the alleged discharge is in violation of a substantive statutory right, as Defendant well knows, South Carolina provides a statutory remedy for both Plaintiffs sexual harassment and wrongful discharge claims in the South Carolina Human Affairs Law (SCHAL), S.C. Code Ann. § 1-13-20. The SCHAL states that “the practice of discrimination against an individual because of race, religion, color, sex, age, national origin, or disability ... is unlawful and in conflict with the ideals of South Carolina and the nation.” Id. Moreover, the statute provides that “[i]t is an unlawful employment practice for an employer ... to fail or refuse to hire, bar, discharge from employment or otherwise discriminate against an individual with respect to the individual’s compensation or terms, conditions, or privileges of employment because of the individual’s race, religion, color, sex, age, national origin, or disability.” Id. § 1-13-80(A)(1). Importantly, the SCHAL not only outlaws sexual discrimination, which includes sexual harassment, in the workplace but also specifically prohibits employers from retaliating against employees who complain of or oppose sex discrimination. Id. § 1-13-80(F).

In Plaintiffs Complaint, she alleges that Defendant wrongfully discharged her while she was suffering from a serious medical condition, namely a stroke. ECF No. 1-1 ¶¶ 8-12. Her allegations under this wrongful discharge cause of action seek a remedy for Defendant’s purported discrimination against her based on her disability, and Defendant interprets the Complaint to allege disability discrimination as well. ECF No. 24 at 2; ECF No. 25 at 1-2 (contending that the conduct alleged in the Complaint violates the ADA). Plaintiff thus raises a cognizable claim under the SCHAL by alleging that Defendant discriminated against her based on her disability. See S.C. Code Ann. § 1-13-80.

Likewise, Plaintiff explicitly asserts a claim of sexual harassment against Defendant. ECF No; 1-1 ¶¶ 33-35. As noted above, the SCHAL outlaws sexual discrimination, which encompasses sexual harassment. Plaintiffs sexual harassment claim is therefore cognizable under the SCHAL as well. See S.C. Code Ann. § 1-13-80.

For this Court to have federal question jurisdiction over this case, a right or immunity created by the Constitution or laws of the United States must be an essential element of Plaintiffs claims. See Gully v. First Nat'l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The “well-pleaded complaint rule” requires for the exercise of federal jurisdiction based upon 28 U.S.C. § 1331 when a federal question is presented on the face of the plaintiffs well-pleaded complaint. Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir.2004) (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004)). Further, the plaintiff is the master of the complaint and may avoid federal jurisdiction by exclusively re-r lying upon state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

Here, as explained in the Report, Plaintiffs' “Complaint does not cite any federal statute, nor mention any federal common law cause of action.” ECF No. 23 at 4. Plaintiff raises eight causes of action in her Complaint, each of which is cognizable under state law. ECF No. 1-1. Moreover, Plaintiff insists that her Complaint raises “[n]o federal question nor any federal statute,” thus expressing her intent to pursue her remedies under South Carolina law. ECF No. 28 at 1.

Because Plaintiffs wrongful' discharge and sexual harassment causes of action are cognizable under the SCHAL, S.C. Code Ann. § 1-13-80, the Court holds that the face of Plaintiffs Complaint does not present a federal question, and the Court consequently does not have subject matter jurisdiction over the case. As observed above, Plaintiff is the master of her Complaint, and she may avoid federal jurisdiction by exclusively relying upon state law, which she has chosen to do here. See Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. 2425. Thus, the Court will overrule Defendant’s objections.

The Court would be remiss if it neglected to draw attention to counsel for Defendant’s inexplicable failure to address Plaintiffs ’wrongful discharge and sexual harassment claims in light of the SCHAL. Simply put, counsel’s lack of candor toward this Court is troubling. See Rule 407, SCACR, Rules of Prof 1 Conduct, Rule 3.3 (providing that “[a] lawyer shall not knowingly .,. fail to .disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel”).

After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Defendant’s objections, adopts the Report, and incorporates it herein. Therefore, it is the judgment of this Court that this matter is REMANDED to the South Carolina Court of Common Pleas in Green-ville County.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

Jacquelyn D. Austin, United States Magistrate Judge

LYNN J. MORGAN, Plaintiff, v. SUITE 12, INC. n/k/a THE INSTORE GROUP, LLC, Defendant.

Plaintiff, Lynn Morgan, brought the instant action in the South Carolina Court of Common Pleas in Greenville County on October 9, 2015. [Doc. 1-1.] Defendant the InStore Group, LLC (“InStore”) removed the action to this Court on November 18, 2015 based on federal question jurisdiction. [Doc. 1.] On November 23, 2015, Defendant Suite 12, Inc. (“Suite 12”) filed a consent to removal. [Doc. 7.] On April 1, 2016, the Court issued an Order to Show Cause why it should not remand the action to state court. [Doc. 18.] Defendants responded stating that this Court has subject matter jurisdiction over the matter because Plaintiffs claims “can be advance[d] or exist only under federal law.” [Doc. 21 at 3.] After careful review of the pleadings, this Court finds that this action should be remanded because the Court lacks subject matter jurisdiction.

BACKGROUND

Plaintiff alleges she was wrongfully terminated after suffering a stroke. [Doc. 1-1 ¶2.] Her Complaint raises the following eight causes of action: (1) a claim for declaratory judgment that a non-competition agreement is unenforceable; (2) a wrongful discharge claim; (3) an intentional infliction of emotional distress claim; (4) a breach of contract claim; (5) a negligent hiring/réterition claim; (6) a negligent supervision claim; (7) a sexual harassment claim; and (8) a claim for unpaid wages. [Id. ¶¶ 3-38.] In addition to the declaratory judgment, Plaintiff seeks actual and punitive damages, as well as any further relief the Court might deem just and proper. [Doc. 1-1 at 7.] InStore’s notice of removal asserts that Plaintiffs claims are removable because this Court has original jurisdiction over this action under 28 U.S.C. § 1331 as it involves a federal question arising under the laws of the United States. [Doc. 1.] Defendants’ responses to the Order to Show Cause why the Court should not remand the action to state court argue that two of Plaintiffs caüses of action, wrongful discharge and sexual harassment, require resolution under federal law, including but not limited to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and Title VII of the Civil Rights Act of 1964 (“Title VH”), 42 U.S.C. § 2000e, et seq. [Docs. 20,21.]

APPLICABLE LAW

A defendant, in a case in a state court may remove that case to a federal district court only if the state court action could have been originally filed in a federal district court. See 28 U.S.C; § 1441. Jurisdiction is established based on the allegations of the plaintiffs complaint filed in state court. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Federal courts are presumptively without jurisdiction over civil matters, and the burden of establishing the contrary rests upon the party seeking jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The United States Court of Appeals for the Fourth Circuit has consistently held that removal jurisdiction should be strictly construed because of the significant federalism concerns that it raises. Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir.1994). For this reason, federal courts must resolve any doubts regarding federal jurisdiction in favor of remanding to the state court. Id. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).

DISCUSSION

In this case, Defendants assert that this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Section 1331 provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. For federal jurisdiction to lie, a right or immunity created by the Constitution or the laws of the United States must be an essential element of the plaintiffs claim. Gully v. First Nat’l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936). It is well settled that the determination of federal question jurisdiction is governed by the “well-pleaded complaint rule,” which requires for the exercise of federal jurisdiction based upon-28 U.S.C. § 1331 that a federal question be presented on the face of the plaintiffs well-pleaded complaint. Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir.2004) (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004)). The plaintiff is the master of the complaint and may avoid federal jurisdiction by exclusively relying upon state law. Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425. Federal question jurisdiction does not exist if there is not a federal question on the face of the plaintiffs complaint. Gully, 299 U.S. at 111-13, 57 S.Ct. 96.

Here, the Complaint does nqt cite any federal statute, nor mention any federal common law cause of action. As stated, the Complaint alleges eight causes of action. [See Doc. 1-1.] Nowhere in the Complaint does- Plaintiff refer to the ADA, Title VII, or any other federal statute; nor does she identify any other federal law constituting an essential element of her claims. Defendants argue that this Court has subject matter jurisdiction because under South Carolina law, the Plaintiff cannot maintain a state law claim for wrongful discharge, and further that Plaintiffs sexual harassment claim is not recognized under state law. In sum, Defendants argue that because' Plaintiffs wrongful discharge and sexual harassment 'claims may only advance in federal court, this Court has subject matter jurisdiction. However, it is not up to this Court to decide whether Plaintiffs state law causes of action are viable. See Holt v. Tonawanda Coke Corp., 802 F.Supp. 866, 868 (W.D.N.Y.1991). The Court finds that the face of Plaintiffs Complaint does not present a federal question. See Franchise Tax. Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (stating that “Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law”). For this reason, the Court finds that Plaintiffs claims do not arise under federal law and consequently, this Court does not have subject matter jurisdiction.

CONCLUSION

Wherefore, based upon the foregoing, the Court recommends that this matter be REMANDED to the South Carolina Court of Common Pleas in Greenville County.

IT IS SO RECOMMENDED. 
      
       Plaintiff'filed this action naming one defendant. However, The InStore Group, LLC and Suite 12, Inc. have made clear that they are separate and distinct entities. See ECF Nos. 8, 9, 23. As the Magistrate Judge treated the entities as a single defendant, and both entities make the same arguments in their submissions, the Court will treat them as a single defendant as well.
     
      
      . Plaintiff filed this action alleging one defendant. However, The InStore Group, LLC and Suite 12, Inc, have made clear in their motions to dismiss that they are separate and distinct entities. [See Docs. 8, 9.]
     