United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
Van Papadopoulos brings this action against Defendants
EagleBank and its employees, Mark Dietz and Liza Punt,
(collectively, "EagleBank Defendants"). Stacy
Talbott. and the Law Office of Stacy Talbott. LLC
(collectively. "Talbott Defendants") alleging state
common law and statutory claims following Plaintiffs
termination from EagleBank. EagleBank Defendants removed the
case to this Court on August 2. 2017. ECF No. 1. Now pending
before the Court is Plaintiffs Motion for Remand. ECF No. 25,
which includes a request for attorneys' fees. A hearing
was conducted on November 1, 2017. Loc. R. 105.6 (D. Md.
2016). For the following reasons, Plaintiffs Motion to Remand
is granted, but Plaintiff's request for attorneys"
fees is denied.
was an employee of EagleBank from April 2014 until March 31.
2017. when EagleBank terminated his employment. ECF No. 2
¶ 10. Starting in 2015. Plaintiff became involved in a
protracted family law matter in the Circuit Court for
Montgomery County, and as a result of the family law matter.
EagleBank. as Plaintiffs employer, was responsible for
withholding a portion of Plaintiffs wages for spousal and
child support payments. Id. ¶¶ 14-15. As
the family law matter progressed. Plaintiff continued to
litigate against his former spouse regarding the maximum
dollar amount that EagleBank could withhold from Plaintiffs
pay, with Plaintiff arguing that such payments were capped at
55% of his pay regardless of whether that payment was
sufficient to satisfy his $6, 500 per month support
obligation. Id. ¶¶ 17. 34. Plaintiffs
former spouse was represented by Talbott Defendants. During
the course of the litigation. EagleBank received a subpoena
deuces tecum from Talbot Defendants and had to
appear at a March 24. 2017 hearing to obtain guidance from
the Circuit Court as to the proper percentage to withhold
from Plaintiffs wages. Id. ¶¶ 31. 34.
Shortly after the March 24 hearing. EagleBank Defendants
terminated Plaintiff. Id. ¶ 37. Plaintiff
alleges that he was terminated because he asserted his legal
rights in the ongoing family law matter in order to protect
his income from excessive withholding. Id. ¶
commenced this action by filing a two-count Complaint in the
Circuit Court for Montgomery County on June 30, 2017.
bringing Maryland common law claims of wrongful discharge in
violation of public policy against EagleBank Defendants
(Count I) and tortuous interference with economic relations
against Talbott Defendants (Count II). ECF No. 2. In his
wrongful discharge claim. Plaintiff alleged that EagleBank
Defendants' decision to terminate him contravened the
public policy embodied in Subchapter II of the Consumer
Credit Protection Act ("CCPA"), 15 U.S.C.
§§1671 el seq. ECF No. 2 ¶¶
43-44. EagleBank Defendants, with consent from Talbott
Defendants, removed the case to this Court on August 2, 2017,
arguing that adjudication of Plaintiff s wrongful discharge
claim turns on construction of the CCPA, thus supporting
federal question jurisdiction under 28 U.S.C. § 1331.
ECF No. 1 ¶ 6-7. Plaintiffs Motion to Remand followed.
ECF No. 25.
STANDARD OF REVIEW
removed this case pursuant to 28 U.S.C. § 1441(b). which
provides that "[a]ny civil action of which the district
courts have original jurisdiction founded on a claim or right
arising under the Constitution, treaties or laws of the
United Slates shall be removable without regard to the
citizenship or residence of the parties." Therefore,
removal is proper if the Court could have originally
exercised federal question jurisdiction over Plaintiff's
complaint. See 28 U.S.C. § 1331 (federal
question jurisdiction exists over all civil actions that
"arise under the Constitution, laws, or treaties of the
United States''). The burden of establishing federal
jurisdiction is placed on the party seeking removal, and all
doubts are resolved in favor of remand. Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.
determining whether a plaintiffs claim arises under federal
law. we apply the well-pleaded complaint rule, which holds
that courts "ordinarily .. . look no further than the
plaintiffs [properly pleaded] complaint in determining
whether a lawsuit raises issues of federal law capable of
creating federal-question jurisdiction under 28 U.S.C. §
1331.'" Pinney v. Nokia. Inc., 402 F.3d
430. 442 (4th Cir. 2005) (citing Ouster v. Sweeney,
89 F.3d 1156. 1165 (4th Cir. 1996)). If federal law creates
Plaintiff's claim, then removal is proper.
Muicahey, 29 F.3d at 151. If federal law does not
create Plaintiffs claim, there is only federal jurisdiction
when Plaintiffs claim raises "a federal issue, actually
disputed and substantial, which a federal forum may entertain
without disturbing any congressionally approved balance of
federal and state judicial responsibilities." Grable
& Sons Metal Products, Inc. v. Dorm, 545 U.S. 308.
314 (2005). Thus, "a defendant seeking to remove a case
in which state law creates the plaintiffs cause of action
must establish two elements: (1) that the plaintiffs right to
relief necessarily depends on a question of federal law, and
(2) that the question of federal law is substantial."
Dixon v. Cohurg Dairy. Inc.. 369 F.3d 811.816 (4th
Cir. 2004). While Federal courts may exercise federal
question jurisdiction over state law claims that "turn
on substantial questions of federal law" and require the
"experience, solicitude, and hope of uniformity that a
federal forum offers." Grable 545 U.S. at 312,
this represents a "special and small category" of
federal question jurisdiction. Empire Healthchoice
Assurance., Inc. v. McVeigh, 547 U.S. 677, 699 (2006).
in Count 1 of his Complaint, alleges that EagleBank
Defendants wrongfully discharged him against public policy
embodied by the CCPA. While Plaintiff does not bring a claim
under the CCPA itself, this federal statute is the sole
source of public policy supporting his wrongful discharge
claim. ECF No. 25-1 at 2-3. Thus. Defendants argue that
Plaintiffs wrongful discharge claim depends on questions of
federal law that are substantial, including whether the CCPA
provides a private right of action, which would bar
Plaintiffs wrongful discharge claim under Maryland common
law. and whether the CCPA sets forth a sufficiently clear
mandate of public policy related to Plaintiffs discharge. ECF
No. 26 at 5-6. Therefore, the Court must determine whether
Plaintiffs wrongful discharge claim implicates "a
federal issue, actually disputed and substantial."
Grable, 545 U.S. at 314.
Private Right of Action in CCPA
state a claim for wrongful discharge in violation of public
policy under Maryland law. Plaintiff must show that he was
discharged, that the basis for his discharge violated a clear
mandate of public policy, and that there is a nexus between
his conduct and EagleBank's decision to discharge him.
Verbal v. Giant of Md, LLC. 204 F.Supp.3d 837, 843
(D. Md. 2016) (citing Wholey v. Sears Roebuck. 370
Md. 38, 50-51 (2002)). However, "because the purpose of
the tort is to 'provide a remedy for otherwise
unremedied violations of public policy." the tort
is not viable if the statutes that establish the public
policy at issue "already provide an adequate and
appropriate civil remedy for the wrongful
discharge.'" Perry v. Dillon's Bus Service.
Inc., No. ELH-16-3207. 2017 WL 2537011, at *11 (D. Md.
June 9. 2017) (citing Porlerfield v. Mascari II.
Inc., 374 Md. 402. 423 (2003)) (emphasis in
Perry). Thus, as an initial matter, the viability of
Plaintiffs wrongful discharge claim depends on whether the
CCPA provides a private right of
action. If it does. Plaintiffs claim for wrongful
discharge cannot survive. It would appear on the surface,
therefore, that Plaintiffs right to relief depends on a
question of federal law.
Court must still determine whether the issue is substantial.
As a starting point, a review of the CCPA itself indicates
that while enforcement of the statute's provisions is to
be made by the Secretary of Labor. 15 U.S.C. § 1676.
there is no express provision providing a private right of
action. Additionally, a number of courts have considered the
issue and a clear majority have determined that the CCPA does
not provide a private right of action.
example, in Western v. Hodgson, the United States
District Court for the Southern District of West Virginia
determined that a private right of action for violations of
§ 1673 was "neither provided for nor contemplated
by Congress in enacting [the CCPA]" and dismissed the
plaintiffs' suit. 359 F.Supp. 194. 201 (S.D. W.V. 1973).
On review, the Fourth Circuit upheld the dismissal because
the plaintiffs did not present facts showing that they were
entitled to relief under the CCPA. but "refrain[ed] from
either reaching the question or expressing any view as to
whether a private action may be maintained under the wage
garnishment provisions of the [CCPA]." 494 F.3d 379, 380
(4th Cir. 1974). Although the Fourth Circuit has not resolved
the issue, a review of other circuits reveals a consensus
that no such private cause of action exists. See LeVick
v. Skaggs Companies, Inc.,701 F.2d 777, 779 (9th Cir.
1983) ("[u]pon examination of Subchapter II of the
[CCPA], of which § 1674 is a part, we are unable to find
any manifestation of congressional intent to provide a
private right of action under § 1674(a). Indeed, what
evidence there is suggests that Congress intended such a
right not to be available."); McCabe v. City of
Eureka. Mo.,664 F.2d 680, 683 (8th Cir. 1981) ("we
refuse to imply a private right of action under 15 U.S.C.
§ 1674(a)"); Smith v. Cotton Bros. Baking Co.
Inc..609 F.2d 738. 741-42 (5th Cir. 1980) (relying on
Cort v. Ash.422 U.S. 66, 95 (1975)) (a cursory
examination of the first three [Co/7 factors for determining
an implied private right of action] . . . leads us to
conclude that no private remedy is implied under Subchapter
II of [the CCPA]"): see also Pressman v.
Neubardt, No. 02 Civ. 8404(RCC). 2002 WL 31780183. at *2
(S.D.N.Y. 2002) ("pursuant to the express language of 28
U.S.C. § 1676 and case law rejecting the notion of an
implied private right of action under 28 U.S.C. § 1673,
this Court finds that it lacks subject matter
jurisdiction"); Slouch ...