Civil Practice – Jurisdiction – Remand from Federal Court – Certified Order – Time to Answer – Default Proceedings — Tort/Negligence – Defamation

Limehouse v. Hulsey (Lawyers Weekly No. 010-083-13, 22 pp.) (Donald W. Beatty, J.) (John W. Kittredge, J., concurring in the result only without separate opinion) Appealed from Charleston County Circuit Court (Daniel F. Pieper & Roger M. Young, JJ.) S.C. S. Ct.

Holding: The circuit court’s jurisdiction over these consolidated cases was suspended upon defendants’ removal to federal court, and the circuit court’s jurisdiction did not resume until it received a certified remand order from the federal court.

We reverse the judgments in favor of plaintiffs and remand to the circuit court to recommence the cases from the procedural point at which the circuit court received a certified remand order from the federal court.

28 U.S.C. § 1447(c) is entitled “Procedure after removal generally” and provides in part, “A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.”

Our Court of Appeals relied on In re Lowe, 102 F.3d 731 (4^th Cir. 1996), to conclude that mailing of the certified remand order is not a jurisdictional requirement, but instead the federal court lost jurisdiction when the remand order was entered. We disagree.

Before 1948, the statute governing remand stated, “Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution….”

When Congress enacted § 1447(c), it purposefully included the mailing of a certified order as a jurisdictional requirement; thus, the mere entry of an order is not self-executing as to the jurisdiction of the state court.

Although this court often defers to Fourth Circuit decisions interpreting federal law, it is not obligated to do so in view of the lack of uniformity amongst the federal courts.

Because the absence of a certified order precluded jurisdiction from resuming in the state court, the state court proceedings conducted after the federal court’s entry of the remand order are void. We vacate both judgments, and remand the cases to recommence in the state court from the procedural point at which the Charleston County Clerk of Court received a certified copy of the federal court’s remand order.

However, we agree with the Court of Appeals and the circuit court that, upon remand, defendants did not get a new 30-day period in which to answer. Once the state court resumed jurisdiction, it had a duty to proceed as though no removal had been attempted. Removal to federal court merely tolls the time period for filing responsive pleadings.

We also reaffirm our adherence to Howard v. Holiday, Inns, Inc., 271 S.C. 238, 246 S.E.2d 880 (1978). In default proceedings, defense counsel’s participation is limited to cross-examination and objection to plaintiff’s evidence. We see nothing in Rule 55(b)(2), SCRCP, that would require us to depart from Howard. The circuit correctly precluded defendants from engaging in discovery and limited their participation to cross-examination and objection to plaintiffs’ evidence.

Reversed, vacated, and remanded.