United States District Court, D. Maryland, Southern Division
WYATT J. DUNCAN, et al., Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
Wyatt Duncan and Tykecia McCormick-Duncan filed a class
action suit in the Circuit Court of Maryland for Prince
George's County for violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692; Maryland Collection Agency Licensing Act
(“MCALA”), Md. Code Ann., Bus. Reg. §§
7-101 - 7-502; Maryland Consumer Debt Collection Act
(“MCDCA”), Md. Code Ann., Com. Law §§
14-201 - 14-204; and Maryland Consumer Protection Act
(“MCPA”), Com. Law §§ 13-101 - 13-411,
as well as for unjust enrichment, a declaratory judgment, and
injunctive and ancillary relief. Compl., ECF No. 2.
Plaintiffs sent a copy of the Complaint and Summons to
Defendants U.S. Bank National Association (“U.S.
Bank”), BWW Law Group, LLC (“BWW Law
Group”), and Fawn Way Builders, LLC (“Fawn Way
Builders”) by certified mail, return receipt requested.
Pls.' Mem. 3, ECF No. 19-1. They did not, however,
request restricted delivery, see id., as required by
the Maryland Rules, see Md. Rule 2-121(a)(3).
Bank and BWW Law Group received the Complaint and their
respective Summons on October 20, 2017 and Fawn Way Builders
received its copy of the Complaint and Summons on October 24,
2017. Id. On November 27, 2017, U.S. Bank removed
the case to this Court on the basis of federal question
jurisdiction. Not. of Removal, ECF No. 1. Plaintiffs
filed a Motion to Remand, arguing that removal was untimely
and U.S. Bank lacked the consent of the other Defendants.
Pls.' Mot. to Rem., ECF No. 19. Because no Defendant was
properly served, U.S. Bank's removal was timely, as the
30-day period for removal never began, and it did not require
the consent of BWW Law Group or Fawn Way Builders. As such,
this matter was properly removed and Plaintiffs' Motion
to Remand and request for costs and fees is denied.
defendant removes a case from state court, “[t]he
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). The “defendant's time to remove is
triggered by simultaneous service of the summons and
complaint, or receipt of the complaint, ‘through
service or otherwise, ' after and apart from service of
the summons, but not by mere receipt of the complaint
unattended by any formal service.” Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
347-48 (1999); see also Steverson v. HSBC Auto Finance,
Inc., No. DKC-10-3119, 2011 WL 1103164, at *3 (D. Md.
Mar. 23, 2011) (same).
the laws of Maryland, where Plaintiffs filed suit,
corporations such as U.S. Bank, BWW Law Group, and Fawn Way
Builders may be served “in person, by mail, or, in some
circumstances, through substituted service upon the State
Department of Assessments and Taxation
(‘SDAT').” Varieur v. BIS Global,
No. PX-16-3111, 2017 WL 1133708, at *2 (D. Md. Mar. 27, 2017)
(citing Md. Rule 2-121(a), 2-124(d), 2-124(o));
Steverson, 2011 WL 1103164, at *4. When a plaintiff
effects service by mail, he or she may do so “by
mailing to the person to be served a copy of the summons,
complaint, and all other papers filed with it by certified
mail requesting: ‘Restricted Delivery-show to whom,
date, address of delivery.'” Md. Rule
parties do not dispute that Defendants received actual notice
when Plaintiffs mailed the Complaint and Summons by certified
mail, return receipt requested to each Defendant. Pls.'
Mem. 3; Defs.' Opp'n 4-5. Plaintiffs believe this to
have been adequate service and because U.S. Bank filed its
Notice of Removal thirty-seven days after it received the
Complaint and Summons, Plaintiffs believe U.S. Bank's
Notice of Removal was untimely. Pls.' Mem. 2-3.
Defendants argue that, because Plaintiffs sent the Complaint
and Summons without requesting Restricted Delivery, they were
not formally served and the clock for removal was not
triggered. Defs.' Opp'n 4-5.
construes its service rules strictly, and actual notice has
been deemed insufficient to overcome less than strict
compliance with the Maryland Rules when sending the complaint
and summons by mail. Samuels v. Two Farms, Inc., No.
DKC-10-2480, 2010 WL 4103670, at *2 (D. Md. Oct. 18, 2010)
(“Maryland courts seem to take a strict, narrow
approach to service; they treat ‘defective service of
process [as] a jurisdictional defect and actual knowledge of
the proceedings on the part of the defendant will not cure
that defect.'”) (quoting Lohman v. Lohman,
626 A.2d 384, 392 (Md. 1993)); Brown v. Am. Insts. for
Research, 487 F.Supp.2d 613, 617 (D. Md. 2007)
(“Plaintiff's repeated attempts at service by
certified mail were invalid for failure to comply with the
restricted delivery requirements of Maryland Rule 2-
121(a)(3).”). Specifically, when Restricted Delivery is
not requested, the 30-day period for a defendant to remove is
not triggered because he or she has not been formally served,
and therefore, the defendant's removal cannot be
untimely. See Steverson, 2011 WL 1103164, at *4;
Samuels, 2010 WL 4103670, at *2; Gibbs v. Bank
of Am., No. GJH-16-2855, 2017 WL 1214408, at *14 (D. Md.
Mar. 31, 2017); see also Sanders v. Callender, No.
DKC-17-1721, 2018 WL 337756, at *10 (D. Md. Jan. 9, 2018);
Moore v. Svehlak, No. ELH-12-2727, 2013 WL 3683838,
at *15 n.12 (D. Md. July 11, 2013) (sending the complaint and
summons by certified mail without requesting restricted
delivery was ineffective; service actually was received by
their own acknowledgement, Plaintiffs did not comply with the
Maryland Rules for service. See Pls.' Mem. 2-3
(“Original of the Summons issued by the Clerk of the
Circuit Court on October 13, 2017, together with copies of
the Complaint and Maryland Civil Non-Domestic Case
Information Report (collectively “service
package”) were mailed by certified mail, return receipt
requested, to each of the Defendants on October 18,
2017.”). As such, none of the Defendants was formally
served. See Varieur, 2017 WL 1133708, at *2;
Steverson, 2011 WL 1103164, at *4. Therefore, the
30-day removal period was never triggered, and Defendant U.S.
Bank's Notice of Removal was timely. See Murphy
Bros., Inc., 526 U.S. at 347-48; Steverson,
2011 WL 1103164, at *4; Samuels, 2010 WL 4103670, at
also argue that U.S. Bank's removal of this action was
deficient because it did not receive consent of its
codefendants when it removed to this Court. Pls.' Mem.
5-6. “When a civil action is removed solely under
section 1441(a), all defendants who have been properly
joined and served must join in or consent to the removal
of the action.” 28 U.S.C. § 1446(b)(2)(A); see
also Moore, 2013 WL 3683838, at *15; Alston v. Wells
Fargo Bank, Nat'l Assoc., No. TDC-17-1085,
2017 WL 2839629, at *2 (D. Md. June 29, 2017). Because
Plaintiffs did not properly serve any defendant, U.S. Bank
was not required to receive consent from BWW Law Group or
Fawn Way Builders when it removed to this Court. See
Moore, 2013 WL 3683838, at *15 & n.12 (holding that
the Holderness Defendants were not required to have consented
to the initial removal notice because Plaintiff had failed to
send the complaint and service requesting restricted
delivery, and therefore, the Holderness Defendants were not
formally served when it was filed) (citing Trademark
Remodeling, Inc. v. Rhines, 853 F.Supp.2d 532 (D. Md.
have found Defendants' removal of this case proper,
awarding costs and fees to Plaintiffs would be improper, and
that request is denied. Flora v. Everest Wealth Mgmt.,
Inc., No. ELH-17-1621, 2017 WL 4280744, at *7 (D. Md.
Sept. 26, 2017) (declining to award fees because
“Defendants' removal of the case was
‘objectively reasonable' and wholly proper”)
(citing Martin v. Franklin Capital Corp., 546 U.S.
132, 141 (2005)).
it is hereby ORDERED that Plaintiffs' Motion to Remand,
ECF No. 19, IS DENIED. In December 2017, Defendants filed
requests seeking permission to file a motion to dismiss, ECF
Nos. 7-9. I will schedule a telephone conference call to
discuss these motions. If Defendants still intend to file
motions to dismiss, they will be ...