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Civil Practice – Diversity Jurisdiction – Timely Removal – Service of Process – Out-of-State Driver
By: Teresa Bruno, Opinions Editor//September 18, 2017
Civil Practice – Diversity Jurisdiction – Timely Removal – Service of Process – Out-of-State Driver
By: Teresa Bruno, Opinions Editor//September 18, 2017
Breland v. Long (Lawyers Weekly No. 002-138-17, 6 pp.) (J. Michelle Childs, J.) 5:17-cv-00070; D.S.C.
Holding: After plaintiff was injured in a traffic accident with an Illinois driver, she attempted to serve defendant pursuant to S.C. Code Ann. §§ 15-9-370 and 15-9-380. Once plaintiff’s certified mail was returned to the South Carolina Department of Motor Vehicles marked “unclaimed,” she was required to mail the notice, summons, and complaint by open mail, yet she did not file an open mail envelope or an affidavit of mailing with the clerk of court. Consequently, plaintiff did not accomplish service pursuant to §§ 15-9-370 and 15-9-380.
Since defendant first obtained a copy of the complaint from the Orangeburg Clerk of Court on Dec. 15, 2016, thereby “otherwise” receiving a copy of the complaint under 28 U.S.C. § 1446(b)(1), defendant’s Jan. 9, 2017, notice of removal was timely.
The court denies plaintiff’s motion to remand to state court.
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