United States District Court, D. Maryland
JAMES ROY, on behalf of himself and all others similarly situated, Plaintiff,
TITEFLEX CORPORATION t/a GASTITE, and WARD MANUFACTURING, LLC, Defendants.
Richard D. Bennett United States District Judge
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,  filed a six-count Class Action Complaint
against the Titeflex Corporation ("Titeflex") and
Ward Manufacturing, LLC ("Ward") (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.
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.
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).
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.
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).
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.
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)).
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.").
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.
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.
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