United States District Court, D. Maryland
Lipton Hollander, United States District Judge
Flora, plaintiff, filed suit in the Circuit Court for
Baltimore County on May 4, 2017 (ECF 2), which she
subsequently amended. ECF 3. As amended, the suit contains
multiple claims against plaintiffs former employers, Everest
Wealth Management, Inc. (“EWM”) and Everest
Investment Advisors, Inc. (“EIA”) (collectively,
“Everest”), as well as several other defendants:
Philippe A. Rousseaux, Jr., Everest's founder and former
President of EWM and EIA; Lorena Rodriguez, Rousseaux's
wife and an officer of EWM; and John G. Anthony, an employee
of Everest. ECF 3, ¶¶ 1-8. Flora alleges that
defendants failed to pay all commissions due to her in
connection with her sale of insurance products for Everest
(Id. ¶¶ 19-20), and that Everest
ultimately fired her to avoid paying plaintiff what she had
earned. Id. ¶ 57.
particular, plaintiff alleges a violation of the Maryland
Wage Payment and Collection Law, Md. Code (2016 Repl. Vol.),
§§ 3-501 et seq. of the Labor and
Employment Article (“L.E.”) (Count I,
id. ¶¶ 15-26); Violation of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”) (Count II, ¶¶ 27-33); Breach
of Contract (Count III, ECF 3, ¶¶ 34-41);
Fraudulent Misrepresentation (Count IV, id.
¶¶ 42-49); Misrepresentation or Concealment (Count
V, id. ¶¶ 50-55); Wrongful Discharge
(Count VI, id. ¶¶ 56-64); Quantum Meruit
(Count VII, id. ¶¶ 65-68); and Unjust
Enrichment (Count VIII, id. ¶¶ 69-70).
Further, plaintiff seeks a declaratory judgment nullifying
her non-compete agreement with Everest (Count IX,
id. ¶¶ 71-77).
basis of the FLSA claim, defendants timely removed the case
to federal court on June 14, 2017, pursuant to 28 U.S.C.
§§ 1331, 1367, and 1441. ECF 1 (“Notice of
Removal”), ¶¶ 8-9. On June 20, 2017,
defendants answered the complaint and asserted five
counterclaims. ECF 14 (“Answer and
Counterclaims”) at 17-21. The counterclaims present
questions under Maryland law. Id.
pending are plaintiffs Motion to Remand (ECF 18) and Motion
for Leave to Voluntarily Dismiss with Prejudice Count II (ECF
19, “Motion to Dismiss”). Defendant opposes both
motions. ECF 24 (“Opposition to Remand”); ECF 25
(“Opposition to Dismissal”). Plaintiff has
replied to the Opposition to Remand. ECF 26
(“Reply”). As discussed, infra, the
parties have also submitted exhibits.
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I shall grant
was hired by Everest in December 2013 to sell insurance
products. ECF 3, ¶¶ 5, 6, 16. As part of her
employment, she was entitled to a commission from her sales.
Id. ¶ 16. According to plaintiff, Everest owes
her more than $90, 000 in unpaid commissions. Id.
¶ 20. Plaintiff also asserts that over the course of her
employment, Everest reduced her commission percentage and her
benefits, in contravention of Everest's original
representations. Id. ¶¶ 46-48. On March 6,
2017, Everest fired plaintiff (id. ¶ 7), which
plaintiff avers was “intentionally calculated to
circumvent the Wage Payment Law and deprive Ms. Flora of
substantial compensation.” Id. ¶ 61.
has moved voluntarily to dismiss, with prejudice, the FLSA
claim in Count II. ECF 19 at 2. She also seeks a remand to
the Circuit Court for Baltimore County, on either of two
theories: (1) that her employment agreement with defendants
contains a forum selection clause providing for venue in the
Circuit Court for Baltimore County (ECF 18-1 at 4); and (2)
if the FLSA claim is dismissed, this Court should exercise
its discretion to remand the remaining claims and
counterclaims to State court, as there is no basis for
federal jurisdiction. Id. at 5.
response, defendants argue: (1) the agreement containing the
forum selection clause pertains only to plaintiffs
non-compete agreement with defendants, and not other
employment matters (ECF 24 at 2); (2) the forum selection
clause in the agreement should not be read to refer
exclusively to a state court geographically located
in Baltimore County (id. at 6-7); (3) this Court
should not allow plaintiff to dismiss her federal claim and
remand because doing so would reward forum manipulation (ECF
25 at 2); (4) even if plaintiffs FLSA claim were dismissed,
this Court retains jurisdiction on the basis of diversity of
citizenship (ECF 24 at 3-4); and (5) under 28 U.S.C. §
1367(c), this Court may exercise supplemental jurisdiction as
to the various claims, notwithstanding the forum selection
clause. Id. at 7-10.
issue here is the forum selection clause, the right of the
plaintiff to dismiss her federal claim, the jurisdictional
basis for the non-federal claims and counterclaims, and the
discretion of this Court to remand the case to the Circuit
Court for Baltimore County. In brief, if the forum selection
clause applies, this case should be remanded (or,
technically, dismissed, see discussion infra). If
the forum selection clause does not apply and the plaintiff
may not dismiss or abandon her federal claim, jurisdiction
remains proper in this Court. If the plaintiff may dismiss or
abandon her federal claim but diversity jurisdiction exists,
jurisdiction remains proper in this Court. But, if the
plaintiff may dismiss or abandon her federal claim and there
is no diversity of citizenship, this Court may remand the
remaining claims to the state court at its discretion.
the questions of dismissal and remand can be decided without
regard to the forum selection clause, I need not consider
styles her motion to dispose of her FLSA claim as a
“motion to voluntarily dismiss with
prejudice.” ECF 19 at 1. In effect, the motion is more
accurately characterized as a motion to amend the complaint
by abandoning the FLSA claim under Fed.R.Civ.P. 15. See
Skinner v. First Am. Bank of Virginia, 64 F.3d 659
(Table), 1995 WL 507264, at *2 (4th Cir. 1995)
(“Because Rule 41 provides for the dismissal of
actions, rather than claims, Rule 15 is
technically the proper vehicle to accomplish a partial
dismissal.” (citation omitted)); see also Elat v.
Ngoubene, 993 F.Supp.2d 497, 519 (D. Md. 2014)
(“The proper mechanism for a plaintiff to withdraw
some, but not all, claims is to file a motion to amend
pursuant to Fed.R.Civ.P. 15.”); 8 Moore's
Federal Practice - Civil § 41.21 (Matthew Bender 3d
ed.) (“Rule 41(a) may not be employed to dismiss fewer
than all of the claims against any particular defendant. This
is because a voluntary dismissal under Rule 41(a)(1) or (2)
terminates an action, which means the totality of
all component claims, i.e., legal causes of action,
asserted against a single defendant.” (footnotes and
citations omitted) (emphasis in original)).
15(a)(2) allows a party to amend a pleading with the opposing
party's written consent or with leave of court. The Rule
instructs courts to “freely give leave when justice so
requires.” But, “leave to amend is not to be
granted automatically. Disposition of a motion to amend is
within the sound discretion of the district court.”
Deasy v. Hill, 833 F.2d 38, 40 (4th Cir. 1987)
considering whether to grant leave to amend, district courts
must consider several factors: “(i) undue prejudice to
opposing party, (ii) undue delay, (iii) bad faith or dilatory
motive, and (iv) futility of amendment.” Shilling
v. Nw. Mut. Life Ins. Co., 423 F.Supp.2d 513, 518 (D.
Md. 2006) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)). The Fourth Circuit has “interpreted Rule 15(a)
to provide that 'leave to amend a pleading should be
denied only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been
futile.'” Laber v. Harvey, 438 F.3d 404,
426 (4th Cir. 2006) (citations omitted).
protest plaintiffs proposed dismissal of her FLSA claim by
calling it “blatant forum shopping.” ECF 25 at 1.
Defendants do not assert that they will suffer any undue
prejudice from the dismissal of the FLSA claim itself;
rather, they seem to oppose the motion only insofar as
dismissal of the federal question might lead to remand to the
State court. Id. at 2. Although the issue of remand
is related to the existence of plaintiffs FLSA claim, the two
are not inextricably linked.
filed her Motion to Dismiss within one month after defendants
removed the case. Defendants have not suggested undue delay,
and clearly there is none. See Shilling, 423 F.Supp.
2d. at 519 (“Plaintiff filed his motion less than a
month after Defendants removed the case and, therefore, has
not caused undue delay.”). And, simply seeking a return
to State court is not evidence of “bad faith.”
See Id. (“Defendants have offered no evidence
that Plaintiffs actions in adding and later moving to dismiss
his . . . claim were prompted by any ill motive toward
Defendants, such as a desire to force them to incur ...