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Mudd v. Comcast of Maryland, LLC

United States District Court, D. Maryland, Southern Division

February 23, 2015

JAMES MUDD, et ux., Plaintiffs,
v.
COMCAST OF MARYLAND, LLC, Defendant.

MEMORANDUM OPINION AND ORDER

PAUL W. GRIMM, District Judge.

Plaintiffs James A. Mudd, Jr. and Kathern C. Mudd filed suit in the Circuit Court for Charles County against Comcast Cable of Maryland, LLC; Comcast Cable Communications Management, LLC; and Comcast Broadband Security, LLC ("Original Defendants") on March 5, 2014. Compl., ECF No. 2; Notice of Removal, ECF No. 1. They lodged claims of trespass to land and negligence, alleging that the Original Defendants dug a trench on their property to lay cable, without their permission, and in doing so, severed the roots of a red oak tree that now "is in the process of dying." Compl. ¶¶ 10-15. Plaintiffs claimed that the Original Defendants acted maliciously because they had been "advised not to enter upon the property." Id. ¶ 16. They sought $74, 500 in compensatory damages as well as punitive damages. Id. at 5. The Original Defendants were served on March 11, 2014 and filed answers on May 6, 2014. Pls.' Mot. 1, 3.

After learning that none of the Original Defendants was "the correct party defendant who provided cable service at the subject location at the relevant time and who could possibly be liable for any damages claimed, " Plaintiffs "filed a Line of Amendment by Interlineation substituting the correct entity of Comcast of Maryland LLC and deleting the three incorrectly named defendants." Notice of Removal ¶ 1. Plaintiffs served Defendant Comcast of Maryland LLC ("Comcast") on June 19, 2014. Id. Comcast removed the suit to this Court on July 18, 2014 under 28 U.S.C. § 1441, stating that "there is complete diversity of citizenship... and even though Plaintiffs' Complaint seeks compensatory damages in the... amount of $74, 500, Plaintiffs also seek punitive damages, such that the amount in controversy exceeds the amount specified in [28 U.S.C.] section 1332(a)." Id. ¶¶ 4, 7. Plaintiffs have filed a motion to remand to state court. ECF No. 19. They contend that Comcast's removal was untimely and, in any event, the amount in controversy is less than that which § 1332(a) requires. Comcast opposes their motion. Def.'s Opp'n & Resp. to Order to Show Cause, ECF No. 23. Because I find that Comcast's motion was timely and that the amount in controversy meets this Court's jurisdictional minimum, I deny Plaintiffs' motion to remand.

I. TIMELINESS

Plaintiffs insist that Comcast's removal was untimely, arguing that "[t]he proper time for removal, at the latest, would have been within thirty (30) days of May 6, 201[4] which was the date Counsel for Defendant unilaterally chose to answer the complaint." Pls.' Mot. 3-4. They contend that the thirty-day removal window could not have begun at the later date of June 19, 2014, when Comcast was served, because that was not when Comcast "first became aware of removability, " given that Defense counsel "advised [Plaintiffs' counsel] that the correct Comcast entity' was Comcast of Maryland LLC'" on April 15, 2014, more than two months prior to the date of service.[1] Id. at 2-4.

Plaintiffs do not provide any legal authority to support their argument. Perhaps this is because the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("JVCA"), Pub. L. No. 112-63, 125 Stat. 758 (Dec. 7, 2011), overruled the case law that supported their interpretation of the statute governing timeliness of removal, 28 U.S.C. § 1446. See Moore v. Svehlak, No. ELH-12-2727, 2013 WL 3683838, at *1, *12-13 (D. Md. July 11, 2013). Prior to the enactment of the JVCA, § 1446(b) provided:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting for the claim for relief upon which such action or proceeding is based....
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b) (1988). Three common law rules developed to explain how to apply the thirty-day window in multi-defendant cases. Moore, 2013 WL 3683838, at *12. In the Fourth Circuit, the " McKinney Intermediate Rule' articulated in McKinney v. Board of Trustees of Maryland Community College, 955 F.2d 924 (4th Cir. 1992), " applied and provided that "a notice of removal [had] to be filed within the first-served defendant's thirty-day window, but... later-served defendants [were afforded] thirty days from the date they were served to join the notice of removal.'" Moore, 2013 WL 3683838, at *12 (quoting Barbour v. Int'l Union, 640 F.3d 599, 607 (4th Cir. 2011) (en banc) (abrogated in part by JVCA)).

To resolve the circuit split, the JVCA adopted a different rule, "the Last-Served Defendant Rule, " which stated that ""each defendant, upon formal service of process, [was entitled to] thirty days to file a notice of removal pursuant to § 1446(b)" and "[e]arlier-served defendants may choose to join in a later-served defendant's motion or not."'" Id. (quoting Barbour, 640 F.3d at 609 (citation omitted)). Section 1446(b) now provides

(b) Requirements; generally.-(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....
(2)(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
(C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served ...

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