United States District Court, D. Maryland
KRISTEN L. PARRISH, Plaintiff,
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.
Tile Shop, LLC, Defendant, represented by Steven E. Kaplan,
Littler Mendelson PC.
Milton, Defendant, represented by Steven E. Kaplan, Littler
K. BREDAR, District Judge.
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.)
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.
Motion to Remand
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.)
Defendants' Motion to File a Surreply
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).
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.
Diversity of the Parties
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.
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. Â§ 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).
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.
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 Â§
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. Â§
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).
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.
The Necessity that All Defendants Consent to the Removal
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 ...