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Gunsay v. Bonneville International Corp.

United States District Court, Fourth Circuit

October 11, 2013




In this matter, the Court must determine whether this case was timely removed from state court to federal court.

On or about April 18, 2012, Kristen Gunsay, plaintiff, filed suit in the Circuit Court for Baltimore City, raising state law tort claims against eight defendants. ECF 2 (“Original Complaint”). Plaintiff’s Amended Complaint (ECF 7, “Am. Compl.”), filed on August 1, 2013, omitted five defendants named in the Original Complaint but retained three: Bonneville International Corporation (“Bonneville”), Deseret Digital Media, Inc. (“DDM”), and Deseret Management Corporation (“DMC”). See Am. Compl. at 1. The Amended Complaint also referenced an additional entity, Deseret News Publishing Company (“DNPC”), which had not been named in the Original Complaint. See, e.g., id. ¶¶ 3-5, 8-9.[1]

On August 28, 2013, DNPC filed a Notice of Removal (ECF 1), to which Bonneville, DDM, and DMC all consented. Id. ¶ 42; see also ECF 16 (Notice of Consent to Removal). In the Notice of Removal, DNPC asserted that it was named as a defendant in the Amended Complaint, and therefore it was entitled, pursuant to 28 U.S.C. § 1446(b)(2)(B), to remove the case to federal court within 30 days of receipt of the Amended Complaint. See ECF 1 ¶¶ 17-20. On September 3, 2013, plaintiff filed an “Emergency Motion to Strike Notice of Removal and Opposition to Removal of State Court Case and Request for Immediate Remand” (“Motion to Remand, ” ECF 23), supported by numerous exhibits, in which she argued, inter alia, that DNPC was not named as a defendant in the Amended Complaint, and thus removal was improper. In the Motion to Remand, plaintiff relied on 28 U.S.C. §§ 1446(b) and (c), among other authorities. See ECF 23 (“Mot.”) at 1-2.[2]

The propriety of the removal turns on whether DNPC was added as a party defendant in the Amended Complaint, thus allowing removal to federal court where it would otherwise be untimely. The issue has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6.[3] For the reasons that follow, I conclude that DNPC was not added as a defendant and thus removal was improper. Accordingly, I will grant plaintiff’s Motion to Remand and remand the case to the Circuit Court for Baltimore City.


As noted, on or about April 18, 2012, plaintiff filed her Original Complaint, pro se, against eight defendants, raising various state law claims, including defamation, intentional infliction of emotional distress, and false light invasion of privacy. See ECF 1. Those eight defendants included Bonneville, DDM and DMC. See ECF 7 at 1. The five other entities sued in the Original Complaint were KSL Broadcast group, KSL Radio 1160, KSL TV, KSL NewsRadio, and Deseret News Corporation, ECF 1 at 1. On or about July 15, 2013, defendants Bonneville, DDM, and DMC moved to dismiss, arguing that the other parties listed as defendants are not, in fact, separate legal entities capable of being sued. See ECF 6-1, at 1-3 (Memorandum of Law in Support of Defendants’ Motion to Dismiss).

Plaintiff did not oppose dismissal of the five entities. Instead she amended her complaint. In doing so, plaintiff did not include the five entities initially named as defendants, but again sued Bonneville, DDM, and DMC. See Amended Complaint, ECF 7 at 1. The Amended Complaint also added references to DNPC. See, e.g., Am. Compl. ¶¶ 3-5, 8-9 (discussing DNPC).[5] The Amended Complaint again raised state law claims of defamation and invasion of privacy arising from news reports aired in April 2011 on television and radio, and reported in print, allegedly stating that plaintiff had kidnapped her daughter in connection with a custody dispute. See generally Am. Compl. ¶¶ 19-21, 27-60. In particular, plaintiff alleged that DMC owned and operated three subsidiaries, Bonneville, DDM, and DNPC, and “managed and supervised an ‘integrated news room’ ” that developed content for television, radio, print, and internet news outlets, including the outlets that disseminated the allegedly defamatory story. See Id . ¶¶ 3, 6, 19-22.

Pursuant to 28 U.S.C. § 1446(b)(2)(A), DNPC filed a Notice of Removal on August 28, 2013, ECF 1, with the consent of Bonneville, DDM, and DMC. Id. ¶ 42; see also ECF 16 (Notice of Consent to Removal). The parties agree that, from the outset, this case could have been filed in federal court based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a). Mot. at 10; Opp. at 3 (citing ECF 1 ¶¶ 27-35). Specifically, plaintiff is a Maryland citizen, while Bonneville, DDM, DMC, and DNPC are all incorporated in Utah and maintain their principal places of business there, and the amount in controversy exceeds $75, 000. See id.

In response to the Notice of Removal, plaintiff filed a timely motion to remand on September 3, 2013. ECF 23; see 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal”). In her Motion to Remand, plaintiff argues that she did not sue DNPC. She points, inter alia, to the caption of the Amended Complaint, which omits any reference to DNPC; the way in which the Amended Complaint describes a variety of entities, including DNPC; and the parties’ conduct. See Mot. at 2-9. Even if DNPC were a named defendant, plaintiff maintains that the failure of the three original defendants to remove the action when they were first sued now precludes removal. Id. at 9-14. Plaintiff also portrays defendants’ removal as part of an improper effort to delay trial in state court. See Id . at 14-19.

For their part, defendants argue that the Amended Complaint explicitly names DNPC as one of the defendants. Opp. at 3 (citing ECF 7 ¶ 5 (Amended Complaint) and ECF 8 ¶ 5 (Second Amended Complaint)). Although DNPC is not named in the caption of the Amended Complaint, defendants insist that the allegations of the Amended Complaint make clear that plaintiff intended to add DNPC as a party. Opp. at 4-19, 21-26. Further, they maintain that, to the extent plaintiff seeks to hold DMC liable as a parent corporation for the actions of its subsidiary, DNPC, the latter is a necessary and indispensable party. Id. at 19-21. Defendants also argue that removal was timely and that the one-year limitation on removal set forth in 28 U.S.C. § 1446(c) does not apply here, because this case was subject to removal when it was first filed. Id. at 26-35. Moreover, defendants assert that plaintiff cannot drop DNPC as a defendant to block removal. Id. at 38-41.[6]

Additional facts are included in the Discussion.


Federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “A court is to presume, therefore, that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). In particular, a federal court “should construe removal statutes narrowly, [with] any doubts . . . resolved in favor of state court jurisdiction.” Barbour v. Int’l, Union, 640 F.3d 599, 617 (4th Cir. ...

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