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Roy v. Titeflex Corp.

United States District Court, D. Maryland

June 29, 2016

JAMES ROY, on behalf of himself and all others similarly situated, Plaintiff,
v.
TITEFLEX CORPORATION t/a GASTITE, and WARD MANUFACTURING, LLC, Defendants.

          MEMORANDUM ORDER

          Richard D. Bennett United States District Judge

         This purported class action lawsuit arises out of the presence of allegedly dangerous "Gastite®" tubing and "Wardflex®" piping in residential and commercial structures in the State of Maryland. The Plaintiff, James Roy ("Plaintiff" or "Roy"), on behalf of himself and two proposed classes, [1] filed a six-count Class Action Complaint against the Titeflex Corporation ("Titeflex") and Ward Manufacturing, LLC ("Ward")[2] (collectively "Defendants") asserting strict liability pursuant to § 402A of the Restatement (Second) of Torts (Counts I and II), negligence for design defect (Counts III and IV), and negligence for failure to warn (Counts V and VI). See Compl., ¶¶ 106-165, ECF No. 2. Currently pending before this Court is Plaintiff's Motion to Remand this case to the Circuit Court for Montgomery County, Maryland (ECF No. 45). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Plaintiff's Motion to Remand (ECF No. 45) is GRANTED. Accordingly, this case shall be remanded to the Circuit Court for Montgomery County, Maryland.

         BACKGROUND

         Titeflex and Ward both manufacture and distribute corrugated stainless steel tubing ("CSST"). See Compl., ¶¶ 2-3, EFC No. 2. CSST is an ultrathin, flexible piping which is used to transport natural gas in residential and commercial buildings. See id. Titeflex's CSST is called Gastite®; Ward's is known as Wardflex®. See id. ¶¶ 3-4. Plaintiff Roy attributes the same threats of injury to both companies' CSSTs. He contends that CSST is dangerous because electrical energy from nearby lightning strikes can puncture a hole in the pipe and ignite the natural gas contained inside. See Id. at ¶¶ 38-40. Roy further contends that Defendants were aware of this risk and failed both to take proper precautions and to warn class members. See Id. at ¶¶ 62-66, 71-75. Based on these assertions, he claims that he and other purported class members have suffered damages.

         In 2013, Roy filed the present lawsuit in the Circuit Court for Montgomery County, Maryland. That case was subsequently removed to this Court, but was dismissed with prejudice by this Court's Order dated August 22, 2014. See Order, ECF No. 36, Roy v. Titeflex Corp., et al., RDB-13-3878. In an accompanying Memorandum Opinion, this Court explained that Roy lacked standing as he had "present[ed] neither actual injury nor any evidence that one [was] imminent" and that he did not state a claim for relief under the Maryland Economic Loss Rule. See Roy v. Titeflex Corp., et al., No. RDB-13-3878, 2014 WL 4215614, at *3-4 (D. Md. Aug. 22, 2014).

         Shortly thereafter, Roy filed a Motion to Alter or Amend this Court's Order of Dismissal "to vacate that portion of the Order dismissing the case with prejudice, and instead remanding this action back to the Circuit Court for Montgomery County, Maryland." Mem. Supp. Mot. to Alter or Amend, p. 5, ECF No. 37-1. Defendants consented to remand, despite the fact that this Court's Order had dismissed with prejudice all claims against them. See Defs.' Joint Response, ECF No. 39. Accordingly, this Court vacated its previous Order of Dismissal and remanded the action to the Circuit Court for Montgomery County, Maryland. See Order, ECF No. 40; Remand Letter, ECF No. 41, RDB-13-3878.

         On remand, Defendants filed a Motion to Dismiss Plaintiff's state court action, which Montgomery County Circuit Court Judge Ronald B. Rubin denied, concluding that Plaintiff had standing under Maryland law and had adequately asserted a state law cause of action for which he could recover economic losses. See Order, Roy v. Titeflex, et al., Case No. 384003-V, Circuit Court for Montgomery County, Maryland, ECF No. 45-7. Judge Rubin entered a scheduling order for the case, with a trial date of September 12, 2016 (ECF No. 45-8). Subsequently, Defendants filed a second Notice of Removal to this Court (ECF No. 1), and Plaintiff filed the pending Motion to Remand (ECF No. 45).

         ANALYSIS

         Despite having previously agreed that this putative class action should be remanded to the Circuit Court for Montgomery County, Maryland, see Defs.' Joint Response, ECF No. 39, RDB-13-3878, Defendants now seek to remove Plaintiff's action to this Court for a second time. In support of his Motion to Remand (ECF No. 45), Plaintiff raises three arguments. First, he contends that Defendants waived any right to removal that they may have had by filing a Motion to Dismiss in state court. Next, he argues, even if Defendants did not waive their right to removal, this Court has already ruled that Plaintiffs lack standing to sue in federal court, and Judge Rubin's decision that they do have standing in state court does not alter that determination. Finally, he argues, even if standing in state court creates Article III standing, standing is not a proper basis for removal under 28 U.S.C. § 1446.

         Plaintiff first argues that Defendants waived any right they had to remove this case to federal court by filing a Motion to Dismiss in the Circuit Court for Montgomery County, Maryland. Pl.'s Mot. to Remand, p. 5, ECF No. 45. According to Plaintiff, Defendants' most recent attempt to remove this case to federal court, now that their Motion to Dismiss has been denied in state court, is impermissible forum shopping. Id. at 7. The parties agree that defendants may waive their right to removal where they demonstrate a "clear and unequivocal" intent to do so. Id. at 5-6 (citing Johnson v. Celotex Corp., 701 F.Supp. 553, 554 (D. Md. 1998), superseded by statute on other grounds as stated in Zumas v. Owens-Corning Fiberglass Corp., 907 F.Supp. 131, 132 (D. Md. 1995)); Def.'s Opp'n, p. 5, ECF No. 49 (citing Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir. 1991)).

         Here, Plaintiff contends, Defendants "indicated a clear and unequivocal intent to waive their right to removal" by filing a Motion to Dismiss in state court. Id. at 6-7. Additionally, Defendants explicitly consented to remand the last time Plaintiff's claims were brought in federal court. See Def.s' Joint Response, ECF No. 39, RDB-13-3878. Plaintiff cites this Court's decision in Gist v. Eagle-Picher Indus., Inc., No. JFM-88-604, 1988 WL 145326, at *2 (D. Md. Mar. 4, 1988) for the proposition that " ‘actions that may result in a disposition on the merits of the state court action, in whole or in part, have . . . been found to evidence the requisite intent [to waive a defendant's right to remove].' " Gist, 1988 WL 145326 at *2 (quoting Bolivar Sand Co., Inc. v. Allied Equipment, Inc., 631 F.Supp. 171, 173 (W.D. Tenn. 1986)); see also Rich v. Sevier, No. CIV. 3:11-0362, 2011 WL 1833185, at *2 (M.D. Tenn. May 12, 2011) ("Defendants waived any right to removal that may have existed by their filing and pursuing of a Motion to Dismiss in the State Court.").

         Defendants do not deny that dispositive motions are evidence of waiver or that they filed a dispositive motion in the Circuit Court for Montgomery County, Maryland. However, they argue that only those actions taken in state court after a right to removal accrues are considered evidence of waiver. Def.'s Response, p. 6, ECF No. 49 (citing Johnson, 701 F.Supp. at 555); see also Johnson v. Xerox Educ. Solutions, LLC, No. GJH-14-CV-15422, 2014 WL 5361302, at *5 (D. Md. Oct. 20, 2014). Here, Defendants argue, their right to removal did not accrue until after Judge Rubin denied their Motion to Dismiss the state action and held that Plaintiff had adequately asserted a state law cause of action for which he could recover economic losses. Id. at 7. Defendants argue that, despite this Court's previous ruling that Plaintiff lacks standing to bring this action in federal court, Judge Rubin's Order "transformed this action into an actual case or controversy, " now capable of being removed. Id. at 5.

         Under 28 U.S.C. § 1446(b)(3), "a notice of removal may be filed within 30 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." (emphasis added). Whether or not Defendants have waived their right to removal depends on whether or not a fresh right to removal did in fact arise after Judge Rubin's Order. Defendants contend that a fresh right of removal has accrued "because a Maryland court [Judge Rubin] has determined that Maryland law recognizes a cause of action for which Plaintiff may seek to recover alleged economic losses on the complaint he filed." Def.s' Response, p. 7, ECF No. 49. In opposition, Plaintiff objects that removal is improper because standing in state court does not automatically create standing under Article III of the United States Constitution. Pl.'s Mot. to Remand, p. 7, ECF No. 45.

         "Standing to sue in any Article III court is, of course, a federal question which does not depend on the party's prior standing in state court." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985); Miller v. Augusta Mut. Ins. Co., 157 Fed.Appx. 632, 636 (4th Cir. 2005). As the United States Supreme Court explained in Lujan v. Defenders of Wildlife, et al., 504 U.S. 555 (1992), standing in federal court consists of three elements: (1) a plaintiff "must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized . . . and (B) actual or imminent, not conjectural or hypothetical;" (2) a "causal connection between the injury and the conduct complained of;" and (3) it must "be likely, as opposed to merely speculative, that the injury" is redressable. Lujan, 504 U.S. at 560-61 (internal quotations and citations omitted). In contrast, Maryland courts "have adopted the ‘cause-of-action' approach, which groups the traditionally distinct concepts of standing and cause of action into a single analytical construct, labeled as ‘standing, ' to determine whether ‘the ...


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