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Wecker v. Home Depot U.S.A., Inc.

United States District Court, D. Maryland

April 4, 2014

DANIEL WECKER, Plaintiff,
v.
THE HOME DEPOT U.S.A., INC., Defendant.

MEMORANDUM AND ORDER RE: REMAND

MARVIN J. GARBIS, District Judge.

The Court has before it Plaintiff's Motion to Remand [Document 17] and the materials submitted relating thereto. The Court finds that a hearing is unnecessary.

I. BACKGROUND

On August 13, 2013, Plaintiff filed a three-Count Complaint in the Circuit Court for Baltimore County, Maryland asserting claims against Defendant Home Depot U.S.A. ("Home Depot"), a Georgia corporation, and its local Baltimore store manager, a Maryland resident. On September 23, 2013, Home Depot filed its Answer to Count I. That same day, Home Depot, together with the manager, filed a Motion to Dismiss. On January 10, 2014, the state court granted the Motion to Dismiss in part, dismissing Counts II and III as to both defendants and Count I as to the manager, leaving pending only a negligence claim against Home Depot. [Document 12]. On February 7, 2014, Home Depot filed its Notice of Removal. [Document 1]. On February 19, 2014, Plaintiff filed the instant motion seeking remand.

II. LEGAL FRAMEWORK

The removal statute, 28 U.S.C. § 1441(a), provides that:
[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
The diversity statute provides, in pertinent part:
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between -
(1) citizens of different States....

28 U.S.C. § 1332(a)(1).

"The notice of removal... shall be filed within 30 days after the receipt by the defendant... of a copy of the initial pleading setting forth the claim for relief upon which such action... is based" if the case is subject to removal based upon the initial pleading. See 28 U.S.C. § 1446(b)(1), (3).

III. DISCUSSION

The instant motion presents the question whether the case was subject to removal based upon the initial pleading. If so, the removal was untimely. On the other hand, if the case became subject to removal only after the state court ...


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