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Caillouet v. Annapolis Yacht Co. LLC

United States District Court, D. Maryland

August 5, 2016



          Ellen Lipton Hollander United States District Judge.

         In this 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 forum defendant.

         On June 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 105.2.

         No hearing is necessary to resolve the Motion to Remand. See Local Rule 105.6. For the reasons that follow, I shall GRANT the Motion.

         I. Factual and Procedural Background

         On 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;[1] 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.

         In 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.

         On May 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 l.[2] 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. ¶ 13.

         The 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 . . . ."[3] 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. ¶ 7.

         By 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.

         The AYC 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."

         As 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.

         But at least some of the parties agreed to a date of service effective after removal.

         II. Discussion


         Section 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. ยง 1332 (a)(1). The Complaint alleges that the amount in controversy exceeds $75, 000. ECF 2 at 10. Plaintiff does not ...

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