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Combs v. Shapiro & Burson LLP

United States District Court, D. Maryland

March 14, 2016

CRYSTAL A. COMBS, Plaintiff,
v.
SHAPIRO & BURSON LLP, et al., Defendants.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

In this action, pro se Plaintiff Crystal A. Combs alleges that Defendants Shapiro & Burson LLP ("Shapiro"). Specialized Loan Servicing LLC. Branch Banking & Trust ("BB&.T"). Morgan Stanley Capital Holdings LLC ("Morgan Stanley"), and Kristine D. Brown, individually and as substitute trustee (collectively. "Defendants") violated various federal laws in connection with the state-court foreclosure proceedings respecting certain real property owned by Plaintiff. ECF No. 1. Defendants have moved to dismiss Plaintiffs Complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, or. in the alternative, for dismissal pursuant to Rules 12(b)(2). (4). and (5). ECF No. 4. Plaintiff opposes Defendants" Motion, and she has also tiled her own "Motion to Remove the Foreclosure Case" from state court to this Court. ECF No. 8. Upon the filing of Plaintiff s Motion. William M. Savage, the substitute trustee and plaintiff in the foreclosure action ("Substitute Trustee"), appeared specially to file a Motion to Remand the foreclosure action to state court, which Plaintiff has opposed. ECF Nos. 10 & 12. No hearing is necessary. See Loc. R. 105.6 (D. Md.). For the following reasons. Defendants" Motion lo Dismiss is granted. Plaintiffs Motion is denied, and the Substitute Trustee's Motion is granted.

I. BACKGROUND

In this action. Plaintiff alleges that Defendants engaged in fraud in a stale foreclosure action respecting certain real property located at 9904 Doubletree Lane. Upper Marlboro. MD 20774. See ECF No. 1 at ¶¶ 6. 10-11. The foreclosure action was initiated on June29, 2010 in the Circuit Court for Prince George's County. Maryland ("Maryland Circuit Court"). See ECF No. 8 at ¶ 1; Bitrson v. Combs, No. CAE10-20522 (P.G. Cnty. Cir. Cl. June 29. 2010). Although the factual allegations in the Complaint are somewhat murky. Plaintiff appears to challenge Shapiro's assignment of her mortgage and deed of trust to BB&T. while, she alleges, Morgan Stanley actually owned the loan. ECF No. 1 at ¶ 44. According to Plaintiff, after she confronted Defendants with evidence of fraud, they failed to voluntarily dismiss the foreclosure action, and she was "forced to file for bankruptcy." Id. at ¶ 10. Apparently. Plaintiff filed for bankruptcy twice while the foreclosure action was pending, see Id. at ΒΆ 21. slowing resolution of the foreclosure proceedings.

Plaintiff initiated this action-separate from the still-pending foreclosure proceedings- by filing her Complaint in this Court on March 23, 2015. ECF No. 1. When Plaintiff failed to submit summonses for the Clerk to seal and sign, the Court issued an Order on April 2, 2015. directing Plaintiff to provide a properly executed summons for each Defendant to the Clerk of the Court. ECF No. 2. In that Order, the Court explained that, because Plaintiff paid the filing fee in this case, she bore responsibility for effecting service of process on Defendants. Id. The Court also explained the procedure that Plaintiff must follow to properly serve the Defendants, noting that the person effecting service must notify the Clerk of the Court, through an affidavit, once service has been completed, that service of process on corporations and associations may be made pursuant to Fed.R.Civ.P. 4(h). and that. if. in lieu of using a private process server. Plaintiff chose to serve Defendants by mail, the registered or certified mail must be sent "restricted delivery." Finally, the Court "cautioned that failure to comply with [the Court's] Order and effect service of process within 120 days of initiating this lawsuit could result in the dismissal of the Complaint without prejudice." Id.

On July 21. 2015, Plaintiff filed an "Affidavit Affirming Service of Court Summons & Complaint to the Defendants." ECF No. 3. But that service omitted proper summonses. Indeed, it appears that, as of that date. Plaintiff had not yet submitted any summonses to the Clerk of the Court for seal and signature. Lacking proper service, on August 3, 2015. Defendants appeared specially seeking dismissal of this action for failure to properly effectuate service. ECF No. 4. After Defendants filed their Motion, on August 7. 2015. Plaintiff filed a request for the Court to issue summonses as to each Defendant, to which she attached the necessary completed summonses. ECF No. 7. She provided no explanation regarding why she had not sooner submitted completed summonses in accordance with the Court's Order issued four months prior. See Id. The Clerk issued summonses for each Defendant on August 14. 2015. ECF No. 9. Plaintiff then filed a response in opposition to Defendants' Motion to Dismiss on September 14. 2015. ECF No. 13. At that point, proof of service had still not been shown, but Plaintiff argued in opposition to Defendants' Motion:

The failure to properly serve Defendants was remedied by the Court reissuing the Summons with the Clerk's seal and Plaintiff has now properly served Defendants. The mistake was inadvertent and obviously the Defendants received service, they just complain that the summonsfes] were defective. At this point. Plaintiff believes it is a moot point as the Court decided to issue new summonses] with the seal.

ECF No. 13 at 1 ¶ 1.

Defendants filed their Reply in support of their Motion to Dismiss on October 1, 2015. in which they noted that the Court never extended the period for Plaintiff to effectuate service and that Plaintiff made no argument respecting whether she had good cause for the delay. ECF No. 14 at 2. That same day. Plaintiff filed an affidavit indicating that Defendants had been served by her mailing of a summons and a copy of the Complaint to each Defendant via U.S. Postal Service "as priority express mail." on September 10, 2015. See ECF No. 15. The exhibits attached to that affidavit indicate, however, that none of those mailings were made via certified mail, restricted delivery. See Md. Rules 2-121{a) (providing that service of process may be made within the state of Maryland "by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: 'Restricted Delivery-show to whom. date, address of delivery.'"). Then, on October 15. 2015. Plaintiff filed an affidavit of proof of service indicating that Brown was personally served by a private process server on October 2. 2015. ECF No. 18. And. finally, on January 11. 2016. an affidavit of service was filed by Plaintiff indicating that Morgan Stanley had received service on November 19. 201 5 through the Maryland Department of Assessments and Taxation.[1] ECF No. 22.

While these issues related to service of process were ongoing. Plaintiff tiled a "Motion to Remove the Foreclosure Case" from state court to this Court on August 12. 2015. more than five years after that suit was initiated in state court. ECF No. 8. In her Motion. Plaintiff indicated that a "Notice of Removal [was] properly filed under Court Case CAE10-20522 with the Circuit Court for Prince George's County, Maryland" and that it was served on "Kristine D. Brown, the Plaintiff and Substitute Trustee on file." Id. at ¶ 3. On August 17, 2015. the Substitute Trustee filed his Motion to Remand the foreclosure action to state court. ECF No. 10. which Plaintiff opposed on September 2, 2015. ECF No. 12.

II. MOTION FOR REMOVAL AND MOTION TO REMAND

Although not chronological, the Court will first address Plaintiffs "Motion to Remove" the foreclosure action and the Substitute Trustee's Motion to Remand. Plaintiff argues that removal of the state court foreclosure action is proper on the basis of diversity jurisdiction. ECF No. 8 at ¶¶ 4-7. She also contends, however, that she filed certain federal counterclaims in the foreclosure action which "overlap" with the claims she raised in the Complaint filed in this Court, and that "judicial economy would be best served by combining these cases . . .." Id. at ¶¶ 9-10. The Substitute Trustee argues, however, that removal was procedurally improper, and that, in any event, removal cannot be based on federal counterclaims. See ECF No. 10-1.

In order to remove a state court action to federal court, a defendant must "file in the district court of the United States for the district and division within which [the state court ] action is pending a notice of removal . . . containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). The notice of removal must be filed within 30 days of the defendant's receipt of service of the initial pleading, or within 30 days of receipt of an amended pleading "from which it may first be ascertained that the case is one which is or has become removable." §§ 1446(b)(1), (3). Removal may only be made with respect to cases "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Removal on the basis of diversity jurisdiction must occur within one year of the commencement of the action in state court, "unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." § 1446(c)(1).

"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 tiling of the notice of removal . . . ." 28 U.S.C. § 1447(c). "On a motion to remand, the court must "strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court.* indicative of the reluctance of federal courts;to interfere with matters properly before a slate court.*'" AH v. Giant Food LLC/Stop & Shop Supermarket Co.. LLC. 595 F.Supp.2d 618. 620 (D. Md. 2009) (quoting Richardson v. Phillip Morris Inc.. 950 F.Supp. 700. 701-02 (D. Md. 1997)). It is well-settled that the ...


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