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Barber v. Montgomery County Government

United States District Court, D. Maryland

January 24, 2018

CLAUDIA BARBER, Plaintiff,
v.
MONTGOMERY COUNTY GOVERNMENT and BOARD OF EDUCATION FOR MONTGOMERY COUNTY PUBLIC SCHOOLS, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         This is a civil rights case arising out of an alleged violation of Title VII of the Civil Rights Act of 1964. The pro se[1] plaintiff, Claudia Barber, filed this civil action in the Circuit Court for Montgomery County, Maryland. The defendants, the Board of Education for Montgomery County Public Schools (the “Board of Education”) and Montgomery County Government (the “County Government”), removed the case to the United States District Court for the District of Maryland, citing federal question jurisdiction pursuant to 28 U.S.C. § 1331. The plaintiff filed an amended complaint in the United States District Court, and the case was later reassigned to the undersigned judge. In her single-count amended complaint, the plaintiff alleges that she is a 57-year-old African American female who applied for several positions as a substitute teacher and assistant general counsel for employment and labor law with the Board of Education. The plaintiff further alleges that she was overqualified for all of the positions but that she was not hired on the basis of her race, sex, age, and color, in violation of Title VII. The plaintiff has now filed a motion to remand, [2] which is fully briefed and ripe for decision. For the following reasons, the plaintiff's motion to remand is denied.

         II. Applicable Law

         A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75, 000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a). The party seeking removal bears the burden of establishing federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Id. State law complaints usually must stay in state court when they assert what appear to be state law claims. See Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004). Further, the court is limited to a consideration of facts on the record at the time of removal. See Lowrey v. Alabama Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007) (stating that in assessing whether removal was proper, the district court has before it only the limited universe of evidence available when the motion to remand is filed); Marshall v. Kimble, No. 5:10CV127, 2011 WL 43034, at *3 (N.D. W.Va. Jan. 6, 2011) (“The defendant's removal cannot be based on speculation; rather, it must be based on facts as they exist at the time of removal.”).

         III. Discussion

         There is no dispute that federal question jurisdiction exists. The only issue is whether the case must be remanded on the basis of the defendants' delayed notice of removal to the state court and other alleged defects in the removal of this civil action. The plaintiff first argues that the removal was not properly effected because, although the defendants filed their notice of removal in federal court on July 13, 2017, the state court did not receive written notice of the removal until December 13, 2017.[3] The state court case remained open until November 22, 2017, on which date the state court entered an order of dismissal after the parties did not appear at the status/pretrial hearing scheduled for November 21, 2017, in the state court. The state court docket (ECF No. 29-2) reveals that no significant action occurred in the state court case between July 13, 2017, and the order of dismissal.

         After the November 22, 2017 state court order of dismissal, the plaintiff filed a motion to vacate the dismissal order. ECF No. 29-3. The defendants filed a response in opposition to the plaintiff's motion. ECF No. 40-1. In their response, the defendants attached the notice of removal and the correspondence that was intended to notify the state court of the removal. Although the state court had not previously received the written notice of removal, the correspondence was dated July 13, 2017. ECF No. 40-1 at 20. Upon reviewing the July 13, 2017 notice of removal attached to the defendants' response, the state court vacated its November 22, 2017 order of dismissal and marked the matter administratively closed as of July 13, 2017, for lack of jurisdiction pursuant to the removal. ECF No. 44-1. ***

         “The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . .” 28 U.S.C. § 1446(b)(1). “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal . . . .” 28 U.S.C. § 1446(d).

         The United States District Court for the Western District of Missouri has found that “§ 1446 does not state that removal must be effected within 30 days; it states that the defendant must file a notice of removal with the district court within 30 days.” Bohanna v. Hartford Life & Acc. Ins. Co., 848 F.Supp.2d 1009, 1013-1014 (W.D. Mo. 2012) (emphasis added). The Bohanna court further found that “[t]he only statutory time limit regarding filing notice with the state court is that it must be done promptly after the filing of the notice with the district court.” Id. at 1014 (emphasis added).

         In Bohanna, the plaintiff argued that the defendant's notice to the state court was not sufficiently prompt because 67 days elapsed between the filing of the notice in the federal court and the filing of the notice in the state court. Id. However, the court found that the defendant's delay in filing the notice with the state court did not warrant remand. Id. (citing Delgado v. Bank of Am. Corp., No. 1:09CV1638, 2009 WL 4163525, at *8-9 (E.D. Cal. Nov. 23, 2009)). In reaching this conclusion, the court reasoned that “no significant action was taken in state court during the 67-day time period such that either party has been adversely affected by the delay.” Id.

         In the instant case, the period of delay between the filing of the notice in federal court and the filing of the notice in state court was 153 days. Although the period of delay in this case was longer than 67 days, this Court finds that the Bohanna court's reasoning still applies. During the 153-day delay, nothing of significance happened in the state court case besides the November 22, 2017 order of dismissal that was issued after no parties appeared at the scheduled November 21, 2017 status/pretrial hearing. ECF No. 29-2. Thus, this Court does not find that the plaintiff was prejudiced by the delay.

         This Court further finds that the reasoning of the Delgado court also applies to the circumstances of this case. The Delgado court determined that a 56-day delay in filing the notice of removal with the state court did not warrant remand where the defendant failed to file the notice with the state court “through inadvertence or mistake.” Delgado, 2009 WL 4163525 at *9. The Delgado court found that the defendants “remedied their error as soon as they learned of it and the purposes of § 1446 would not be undermined by retaining jurisdiction as no state court proceedings were conducted.” Id.

         Similarly, in the instant case, it was through inadvertence or mistake that the notice to the state court, which was prepared on and dated July 13, 2017, was never received by the state court. It is clear that written notice was prepared on the date of removal because a copy of the letter to the Clerk of the Circuit Court for Montgomery County, dated July 13, 2017, was filed in this Court on July 13, 2017. ECF No. 4. This Court finds that the defendants in the present case also remedied their error when they became aware of the mistake ...


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