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Parrish v. The Tile Shop, LLC

United States District Court, D. Maryland

September 30, 2016

KRISTEN L. PARRISH, Plaintiff,
v.
THE TILE SHOP, LLC ET AL., Defendants.

          Kristen L. Parrish, Plaintiff, represented by Howard J. Schulman, Schulman and Kaufman LLC.

          Kristen L. Parrish, Plaintiff, represented by Marie J. Ignozzi, Schulman and Kaufman LLC.

          The Tile Shop, LLC, Defendant, represented by Steven E. Kaplan, Littler Mendelson PC.

          Cedric Milton, Defendant, represented by Steven E. Kaplan, Littler Mendelson PC.

          MEMORANDUM

          JAMES K. BREDAR, District Judge.

         The action before the Court arises out of a lawsuit filed in the Circuit Court for Anne Arundel County by Plaintiff Kristen Parrish against her former employer and her manager. (Complaint, ECF No. 2.) Against her employer, The Tile Shop, LLC ("Tile Shop"), Plaintiff alleges discriminatory employment practices; against her former supervisor, Cedric Milton ("Milton"), she alleges tortious interference with prospective advantage. ( Id. ) Tile Shop subsequently filed a notice to remove the case to this Court on the basis of diversity jurisdiction. (Notice of Removal, ECF No. 1.)

         Pending before the Court are motions to dismiss by Tile Shop (ECF No. 11) and by Milton (ECF No. 25) and a motion to remand by Plaintiff (ECF No. 26). These motions are fully briefed, and no hearing is necessary, Local Rule 105.6 (D. Md. 2016). Also pending is the defendants' joint motion for leave to file a surreply associated with Plaintiff's motion to remand (ECF No. 31). For the reasons stated below, Defendant Milton's motion to dismiss will be granted, and the other pending motions will be denied.

          I. Motion to Remand

         Plaintiff initially offered two justifications in support of her motion that the case be remanded to the Circuit Court for Anne Arundel County: first, that Tile Shop failed to sufficiently allege in its notice of removal the citizenship of the parties so as to satisfy the requirements of diversity jurisdiction; and second, that Defendant Milton failed to join in Tile Shop's petition for removal. (Mem. in Supp. of Pl.'s Mot. for Remand, ECF No. 26-1.) Later, Plaintiff supplemented her motion with a third argument that Tile Shop never filed its notice in the Circuit Court for Anne Arundel County. (ECF No. 32.) For the reasons stated below, Plaintiff's motion will be denied, as will Defendants' motion to file a surreply in the briefing to that motion. (ECF No. 31.)

          A. Defendants' Motion to File a Surreply

         Before turning to the substance of Plaintiff's motion to remand, the Court will address Defendants' motion for leave to file a surreply. Although surreplies are disfavored in this District, the Court may grant leave to file a surreply under appropriate circumstances. See Local Rule 105.2(a) (D. Md. 2016). One such circumstance is where the "moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D. Md. 2003), aff'd, 85 F.Appx. 960 (4th Cir. 2004) (per curiam).

         In her reply memorandum, Plaintiff argues that the statute governing a co-defendant's consent to a notice of removal was amended in 2011 and that the cases cited in Defendants' memorandum in opposition represent outdated and inapplicable law. (Pl.'s Reply in Supp. of Mot. to Remand 1-2, ECF No. 30.) Plaintiff's argument does not represent a new matter presented to the Court; rather, she is contesting the validity of the law cited by Defendants. ( See Defs.' Opp'n to Pl.'s Mot. to Remand 5-7, ECF No. 29.) The validity of the law cited in a memorandum is often at issue in cases. Because Defendants could have anticipated that Plaintiff would refer to statutory changes as a means of attacking the validity of the cases cited in Defendants' memorandum, Defendants' motion for leave to file a surreply is not well-founded and will be denied.

          B. Diversity of the Parties

         Plaintiff's first argument to remand the case is that Tile Shop's notice of removal insufficiently alleged the citizenships of both defendants. (Mem. in Supp. of Pl.'s Mot. to Remand 2-4.) Plaintiff seems to object primarily to an alleged defect in the notice of removal rather than claiming an actual lack of jurisdiction. In either case, Plaintiff fails to defeat removal.

         When a notice of removal filed pursuant to section 1446(a) is defective for any reason other than a lack of subject matter jurisdiction, the opposing party waives its right to seek remand when it does not address such a defect within thirty days. 28 U.S.C. § 1447(c). A defect in pleading the citizenship of parties in a notice of removal based on diversity jurisdiction is procedural rather than jurisdictional. Doe v. Blair, 819 F.3d 64, 67-68 (4th Cir. 2016).

         To the extent that Plaintiff argues that Tile Shop's notice of removal is deficient, such an objection is time-barred. Tile Shop filed its notice of removal on April 20, 2016, and Plaintiff did not file her motion to remand until July 8. Therefore, Plaintiff's motion comes well past the statutory time limit to address such a deficiency.

         Even if Plaintiff's motion can be construed as a factual challenge to subject-matter jurisdiction, it fails for want of merit. For the purposes of diversity jurisdiction, one's citizenship is determined on the date a suit is filed. Leimbach v. Allen, 976 F.2d 912, 917 (4th Cir. 1992). An individual's citizenship is determined by his domicile, which is "established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (internal quotation marks omitted). Courts determine one's domicile by considering factors including residence; voter registration; location of personal and real property; location of bank accounts; place of employment or business; driver's license and automobile registration; and payment of taxes. 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3612 (3d ed. & Supp. 2016). A corporation is a citizen of the state in which it is incorporated, as well as the state in which it has its principal place of business. 28 U.S.C. § 1332(c)(1). A limited liability company has the citizenship of each of its members. See Gen. Tech. Apps., Inc. v. Exro Ltda., 388 F.3d 114, 120 (4th Cir. 2004).

         To the extent that Plaintiff questions the Court's jurisdiction to hear the case, the record contains evidence sufficient to support diversity jurisdiction. In support of their memorandum in opposition to Plaintiff's motion, Defendants offer a declaration stating that The Tile Shop, LLC has only one member: Tile Shop Holdings, Inc., and that the latter corporation is incorporated in Delaware and headquartered in Minnesota. (Decl. of Chris Homeister, ECF No. 29-2). Thus, for the purpose of determining federal diversity jurisdiction, Tile Shop is a citizen of Minnesota and Delaware, and only of those states. Defendant Milton declares that he only lived in Maryland briefly in 2015; that otherwise he has maintained his parents' home in Bealeton, Virginia, as his residence since 2004; that while he worked at Tile Shop, the Virginia address appeared on his paystubs; that his bank is in Virginia; that he pays taxes in Virginia; that his car is registered in Virginia; and that he has a Virginia driver's license. (Decl. of Cedric Milton, ECF No. 29-3.) The only evidence in favor of Maryland ever having been Milton's domicile is his prior employment and residence there for some part of 2015. ( Id. )[1]

          C. The Necessity that All Defendants Consent to the Removal Petition

         Plaintiff next argues that remand is appropriate because Milton did not join in the request for removal within thirty days after being served. (Mem. in Supp. of Pl.'s Mot. to Remand 4.) Defendants respond that Milton was not required to join because the statute only applies such a requirement to those parties who were ...


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