United States District Court, D. Maryland, Southern Division
JOSEPH JOHNSON, JR. Plaintiff,
XEROX EDUCATIONAL SOLUTIONS LLC, et al. Defendants.
GEORGE J. HAZEL, District Judge.
This Memorandum Opinion addresses Plaintiff's Motion to Remand. ECF No. 11, Defendants' Opposition and Cross Motion for Leave to File Amended Notice of Removal, ECF No. 18, and Plaintiff's Reply, ECF No. 20. The Court finds a hearing is unnecessary. See Local Rule 105.6. For the reasons articulated below, Plaintiff's motion is DENIED. Defendants' Motion to Amend their Notice of Removal is GRANTED.
Plaintiff Joseph Johnson, Jr. filed this lawsuit on February 11, 2014 in the District Court for Prince George's County, Maryland against Defendants Xerox Education Solutions. LLC, Xerox Business Services, LLC, and Xerox Corporation. ECF No. 1 at ¶ 1. After Defendants demanded a jury trial, on March 7, 2014, the case was removed to the Circuit Court for Prince George's County, Maryland. Id. at ¶ 3.
On April 11, 2014, Plaintiff tiled an amended complaint, doubling the causes of action from six to twelve. Id. at ¶ 4. Defendants tiled a motion to dismiss Plaintiff's original complaint on April 14, 2014. ECF No. 21-2. Apparently belatedly realizing Plaintiff had filed an amended complaint, on May 9, 2013, Defendants filed a notice of removal to this Court based on federal diversity jurisdiction. ECF No. I. Plaintiff has filed the instant motion to remand. ECF No. 11.
Pursuant to 28 U.S.C. § 1332(a), federal district courts "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...." When a plaintiff files such an action in state court, the action "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." 28 U.S.C. § 1441(a). Removal is proper over any action that a plaintiff could have filed in federal court. See id.
Plaintiff challenges Defendants' removal on various grounds. He argues that this Court lacks jurisdiction because Defendants did not properly allege diversity, the parties are not diverse, and the amount in controversy does not exceed $75.000. ECF No. 11 at 7-14. Plaintiff also contends that Defendants waived their right to remove the action to federal court by filing a motion to dismiss in state court. [n addition. Plaintiff complains that Defendants did not attach all necessary documents to the notice of removal. Id. at 4-7. Plaintiff requests compensation for his time in preparing the motion for remand. Id. at 15-17.
Plaintiff argues that Defendants were required but failed to allege that Plaintiff was a citizen of Maryland at the commencement of his lawsuit. ECF No. 11 at 8. Plaintiff also denies that he is a citizen of Maryland. Id. Defendants request that the Court permit them to amend their Notice of Removal to assert that Plaintiff was a citizen of Maryland at the commencement of his lawsuit, and Defendants assert that they have sufficiently shown Plaintiff's citizenship. ECF No. 18 at 4-5.
a. Leave to Amend
28 U.S.C. § 1332 governs federal jurisdiction based on diversity of citizenship. Where the basis of removal is diversity, diversity of citizenship must exist at the time the action was filed in state court and at the time of removal. Kessler v. Home Life Ins. Co., 965 F.Supp 11, 12 (D. Md. 1997). Here, Defendants alleged in their Notice of Removal that Plaintiff is a citizen of Maryland, ECF No. 1 at ¶ 6, however, Defendants did not state that Plaintiff was a citizen of Maryland at the time the action was tiled. Defendants request leave to amend their notice to includes the allegation that Plaintiff was a citizen of Maryland at the commencement of his lawsuit. ECF No. 18 at 4-5.
Federal courts typically allow amendments to removal petitions to cure a technical defect but not to add a missing jurisdictional allegation. Molnar-Szilasi v. Sears Roebuck & Co., 429 F.Supp.2d 728. 730 (D. Md. 2006). For example, on the one hand, courts have found that stating the residences of the parties instead of the domiciles or incorrectly stating a principle place of business are technical defects that can be corrected. id. ( citing Muhlenbeck v. KI, LLC, 304 F.Supp.2d 797, 800 (E.D. Va. 2004)). On the other hand, courts have decided that failure to allege fraudulent joinder or failure to allege a particular basis for removal are mistakes that cannot be corrected. Id. ( citing Iceland Seafood Corp. v. Nat. Consumer Cooperative Bank, 285 F.Supp.2d 719, 726-27 (E.D. Va. 2003) (basis for removal), and Tincher v. Ins. Co., 268 F.Supp.2d 666, 667 (E.D. Va. 2003) (fraudulent joinder)).
Here, given Defendants' allegation that Plaintiff is a citizen of Maryland, their failure to allege that Plaintiff was a citizen of Maryland when he filed his complaint is a technical defect. Thus, the Court ...