United States District Court, D. Maryland
Lipton Hollander United States District Judge.
Memorandum, I consider plaintiffs motion to remand this case
to the Circuit Court for Anne Arundel County. The case was
removed from State court by two defendants, prior to service
of process, based on diversity jurisdiction. However, one of
the defendants that removed the case is a citizen of
Maryland, i.e., a forum defendant, and a defendant.
And, another defendant that consented to removal is also a
21, 2016, plaintiff filed a "Motion to Dismiss for Lack
of Jurisdiction" (ECF 13), supported by a memorandum of
law (ECF 13-1, the "Motion to Remand"), and several
exhibits. ECF 13-2 through ECF 13-5. Plaintiff argues that
removal was improper because a forum defendant cannot rely on
diversity jurisdiction as a ground for removal under 28
U.S.C. § 1441(b)(2). ECF 13 at 1. As relief, plaintiff
asks this Court to remand the case to the Circuit Court for
Anne Arundel County. Id. Two of the defendants,
Harold Del Rosario and Annapolis Yacht Company, LLC (the
"AYC Defendants"), oppose the Motion to Remand (ECF
15) and incorporate by reference their memorandum in support
of their notice of removal. ECF 11. Plaintiff has not replied
and the time to do so has expired. See Local Rule
hearing is necessary to resolve the Motion to Remand.
See Local Rule 105.6. For the reasons that follow, I
shall GRANT the Motion.
Factual and Procedural Background
April 15, 2016, Larry Caillouet, plaintiff, filed suit in the
Circuit Court for Anne Arundel County against the following
defendants: Annapolis Yacht Company, LLC ("AYC");
Harold Del Rosario; Robert Durham Turner; and Kelsey &
Turner Surveyors ("Kelsey & Turner"). ECF 2.
Plaintiff alleges that he purchased the S/V Thor, using AYC
as a broker. Id. ¶¶ 7, 11, 14. Del Rosario
is an employee of AYC. Id. ¶ 2. Plaintiff
retained Turner, a partner in Kelsey & Turner, to conduct
a pre-purchase inspection of the vessel. Id. ¶
5, 20. Plaintiff maintains, inter alia, that Del
Rosario and AYC misrepresented the condition of the vessel
(id. ¶ 24) and that Turner and Kelsey &
Turner failed to detect defects in the boat. Id.
¶¶ 20, 21.
particular, plaintiff brings claims for breach of contract as
to Turner and Kelsey & Turner (Count I); breach of
contractual fiduciary duty as to Del Rosario and AYC (Count
II); breach of fiduciary duty/unjust enrichment as to Del
Rosario and AYC (Count III); negligent misrepresentation as
to all defendants (Count IV); violation of the Maryland
Consumer Protection Act as to Del Rosario, AYC, and Turner
(Count V); and fraud as to Del Rosario, AYC, and Turner
(Count VI). Id. ¶¶ 29-71.
27, 2016, the AYC Defendants filed a "Motion to Compel
Arbitration and Stay all Proceedings" (the "Motion
to Compel Arbitration"). ECF 4; ECF 13-3 at
Less than two hours later, AYC and Del Rosario filed a notice
of removal, pursuant to 28 U.S.C. §§ 1441 and
1332(a). ECF 1; ECF 13-4 at 1. Counsel for Turner and Kelsey
& Turner consented to the removal. Id. ¶
notice of removal states, in pertinent part, ECF 1 ¶ 10:
"This Notice of Removal is timely as it is filed within
30 days after Defendants were served with notice of the
action." It also says, id. ¶ 11:
"Pursuant to 28 U.S.C. § 1446(a), copies of all
process, pleadings, and orders served upon Defendants are
attached to this Notice of Removal . . .
." Further, the notice of removal asserts
that plaintiff is a "resident" of Kentucky; AYC is
a Maryland limited liability company, whose sole member is a
Maryland "resident"; Del Rosario is a
"resident" of Florida; Kelsey & Turner's
principal place of business is in Annapolis; and Turner is a
"resident" of South Carolina. ECF 1 ¶¶
2-6. Therefore, defendants claim: "There is full
diversity of citizenship in this lawsuit." Id.
Order of June 1, 2016 (ECF 7), I directed the AYC Defendants
to clarify allegations as to the citizenship of the parties
for purposes of establishing diversity jurisdiction.
Id. at 3. Then, on June 10, 2016, the AYC Defendants
responded to the Court's "Standing Order Concerning
Removal" (ECF 6) with a "Statement Concerning
Removal." ECF 9. In relevant part, the AYC Defendants
stated that they were "provided notice with a copy of
the summons[es] for the AYC Defendants (ECF 11-1 at 6),
plaintiffs counsel indicated that he remembered mailing two
summonses and the Complaint to defense counsel on
approximately May 19, 2016. However, according to an
affidavit from counsel for the AYC Defendants, the AYC
Defendants never received the Complaint or summonses by mail.
ECF 11-1 at 2 ¶ 6.
Defendants also asserted in their memorandum that on June 13,
2016, plaintiff served Turner and Kelsey & Turner.
See ECF 11 at 5; ECF 11-1 at 2 ¶ 7. In this
regard, the AYC Defendants rely on an email from plaintiffs
counsel to all defense counsel, dated June 13, 2016. ECF 11-1
at 8. It provides, in relevant part, id.: "I am
attaching again the complaint and summons for Turner and
Kelsey and Turner. Since you have both now agreed (thank you)
to accept service, let's consider today (June 13, 2016)
as the date of service."
noted, the memorandum reflects that the AYC Defendants were
notified of the suit by plaintiff about a month before
removal, but they were not served. And, it appears that
Turner and Kelsey & Turner agreed to a date of service of
June 13, 2016, i.e., after removal.
least some of the parties agreed to a date of service
effective after removal.
1332(a) of Title 28 of the United States Code grants federal
district courts "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 "citizens of different States."
Id. § 1332 (a)(1). The Complaint alleges that
the amount in controversy exceeds $75, 000. ECF 2 at 10.
Plaintiff does not ...