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Mostofi v. Capital One, N.A.

United States District Court, D. Maryland

February 25, 2013

Dean MOSTOFI, et al., Plaintiffs,
v.
CAPITAL ONE, N.A., et al., Defendants.

Page 748

Dean Mostofi, Rockville, MD, pro se.

Young Sun Kim, Rockville, MD, pro se.

John S. Simcox, Simcox and Barclay LLP, Annapolis, MD, for Defendants.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Background

On October 24, 2011, Plaintiffs, Dean Mostofi and Young Sun Kim, filed a pro se Bill of Complaint in the Circuit Court for Montgomery County, Maryland, against Defendants, Capital One, N.A. (" Capital One" ), and Capital One employees Jon Duckworth and Tina Register. (Doc. No. 2). Plaintiffs assert that Defendants took unlawful action with respect to Plaintiffs' joint checking account, primarily by enforcing a withholding order issued by an out-of-state garnishor against Plaintiffs' account in Maryland. (Doc. No. 17-2, ¶ 7).

On June 15, 2012, Plaintiffs filed an Amended Bill of Complaint against Defendants in State court. Id. ¶ 5. Defendants concede that the " case stated by the First Amended Complaint was not removable in that it did not meet diversity jurisdiction requirements and did not contain a federal question." Id. On August 2, 2012, Plaintiffs filed their Second Amended Complaint against Defendants in State court. Id. ¶ 6. Plaintiffs' Second Amended Complaint included, for the first time, an assertion in Count Ten that Defendants violated the federal Electronic Fund Transfer Act (" E.F.T.A." ), 15 U.S.C. §§ 1693-1693r. See Doc. No. 1, ¶¶ 6-7; Second Am. Compl., Doc. No. 7, Count Ten, ¶¶ 105-110.

Page 749

On August 13, 2012, Defendants removed Plaintiffs' State court action to this Court under 28 U.S.C. §§ 1441, 1446, claiming that Plaintiffs' E.F.T.A. allegations in their Second Amended Complaint create a " federal question" such that this Court has original jurisdiction under 28 U.S.C. § 1331, and supplemental jurisdiction over the remaining State law claims under 28 U.S.C. § 1367. (Doc. No. 1, ¶¶ 7-11). Also on August 13, 2012, however, Plaintiffs filed in State court their Third Amended Complaint, which does not include any E.F.T.A. allegations or other claims based on federal law. See Doc. Nos. 15-11, 17-2.

On August 27, 2012, Defendants filed a Motion to Strike the Third Amended Complaint. (Doc. No. 16). Defendants argue that Plaintiffs' Third Amended Complaint is not in conformity with applicable procedural rules because Plaintiffs did not file a copy of the amended pleading in which the stricken material and new material are properly identified. Id. ¶ 2. Defendants claim that Plaintiffs did not file their Third Amended Complaint in State court in the manner required by Md. Rule 2-341(e), which carries similar requirements to those found in this Court's local rules. Id. ¶ 4.

Based on the absence of any federal law claims in their Third Amended Complaint, Plaintiffs filed in this Court a Motion to Remand on September 7, 2012. (Doc. No. 17). Plaintiffs claim, and supply exhibits to support, that they filed their Third Amended Complaint in State court on August 13, 2012, at 8:20 a.m. Id. at 1; Id. Ex. A, Doc. No. 17-2. Plaintiffs maintain that Defendants filed their Notice of Removal in State court over three hours later on August 13, 2012, at 11:34 a.m. Id. at 2. Plaintiffs include as exhibits to their Motion time-stamped copies of their Third Amended Complaint and Defendants' Notice of Removal in State court. Id. Ex. A, Doc. No. 17-2; id. Ex. C, Doc. No. 17-4. Plaintiffs argue that their Third Amended Complaint is the operative complaint for removal, it includes State law claims but no federal law claims, and therefore this Court lacks jurisdiction and should remand the action to State court. (Doc. No. 17 at 3). On September 7, 2012, Plaintiffs also filed a Motion to Stay Briefing Schedule of Capital One, N.A.'s Motion to Strike Third Amended Complaint. (Doc. No. 18).

Defendants filed an Opposition to Plaintiffs' Motion to Stay Briefing Schedule of Capital One, N.A.'s Motion to Strike Third Amended Complaint on September 21, 2012. (Doc. Nos. 19, 20). On the same date, Defendants filed an Opposition to Plaintiffs' Motion to Remand. (Doc. No. 21). Plaintiffs filed a Reply to Defendants' Opposition to Plaintiffs' Motion to Remand (Doc. No. 22), and a Reply to Defendants' Opposition to Plaintiffs' Motion to Stay Briefing Schedule of Capital One, N.A.'s Motion to Strike Third Amended Complaint (Doc. No. 23) on October 9, 2012. On October 12, 2012, Plaintiffs filed an Opposition to Capital One's Motion to Strike Third Amended Complaint. (Doc. No. 24). On October 31, 2012, Capital One, N.A. filed a Reply to Plaintiffs' Opposition to Motion to Strike Third Amended Complaint. (Doc. ...


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