United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
action is brought by Plaintiff Chatel Grayson on her own
behalf and as a putative class action against Defendant
Freedom Mortgage Corporation (“FMC”) alleging
various violations of Maryland law. Plaintiff filed this
action in the Circuit Court for Montgomery County, Maryland,
seeking individual damages, class damages, and attorney's
fees. ECF No. 4. FMC timely filed a Notice of Removal and a
Motion to Dismiss. ECF Nos. 3, 20. Plaintiff filed a Motion
to Remand, contending that the Court lacks subject-matter
jurisdiction over her claims, and that removal was therefore
improper. ECF No. 19. No hearing is necessary. See
Loc. R. 105.6 (D. Md. 2016). For the following reasons,
Plaintiff's Motion to Remand, ECF No. 19, is granted.
Defendant's Motion to Dismiss, ECF No. 20, is denied as
defendant may remove any civil action from state court to a
federal district court if the district court has original
jurisdiction over the action. 28 U.S.C. § 1441. The
burden is on the defendant to prove that the district court
may exercise jurisdiction. Strawn v. AT&T Mobility,
LLC, 530 F.3d 293, 296-97 (4th Cir. 2008).
“Because removal jurisdiction raises significant
federalism concerns, ” it must be strictly construed.
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994). “If federal jurisdiction is
doubtful, a remand is necessary.” Id.
contends that the Court has jurisdiction pursuant to 28
U.S.C. § 1332(a).Section 1332(a) gives a federal court
jurisdiction over an action where there is complete diversity
of citizenship of the parties and an amount in controversy in
excess of $75, 000, exclusive of interest and costs. The
parties do not contest that Plaintiff Grayson is a citizen of
the State of Maryland, and that FMC is a citizen of the State
of New Jersey. Therefore, the sole question is whether the
amount in controversy is in excess of $75, 000.
class action, the aggregated damages of a class of plaintiffs
cannot be used to satisfy the amount-in-controversy
requirement; at least one named plaintiff's damages must
individually surpass $75, 000. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 558-59 (2005).
“Where a plaintiff claims a specific amount in damages
that is less than $75, 000, removal is proper only if the
defendant can prove to a ‘legal certainty' that the
plaintiff would actually recover more than that if she
prevailed.” Momin v. Maggiemoo's Int'l,
LLC, 205 F.Supp.2d 506, 509 (D. Md. 2002). However,
where there is not a specific amount claimed, the defendant
must prove that the jurisdictional burden is met by a
preponderance of the evidence. See Francis v. Allstate
Ins. Co., 709 F.3d 362, 367 (4th Cir. 2013);
Momin, 205 F.Supp.2d at 509-10. As in
Momin, this case presents a hybrid scenario because
the Complaint provides a specific amount in damages but an
indeterminate amount for attorney's fees. See Momin,
205 F.Supp.2d at 510.
party seeks recovery of attorney's fees authorized by
statute, the fees are included in the amount in controversy.
Francis, 709 F.3d at 368-69. But just as a
class' damages cannot be aggregated to meet the
amount-in-controversy requirement, a class'
attorney's fees cannot be aggregated to meet the
requirement unless the statute specifically awards fees to
the named plaintiffs. See, e.g., In re Abbott Labs.,
51 F.3d 524, 526 (5th Cir. 1995) (where statute authorizes a
court to “allow the representative parties their
reasonable expenses of litigation, including attorney's
fees, ” fees may be aggregated to meet the amount in
controversy); see also Cohen v. Office Depot, Inc.,
204 F.3d 1069, 1080 (11th Cir. 2000) (fees were not
aggregated when statute awarded fees to “prevailing
party” or “[a]ny person prevailing”). The
relevant attorney's fees statutes here award fees to
“any person . . . who is awarded damages.”
See Md. Code. Ann. Com. Law § 13-408; Md. Code
Ann. Real Prop. § 7-406(b). Therefore, the class'
attorney's fees cannot be aggregated to meet the amount
in controversy requirement.
Momin, the plaintiff alleged damages of $69, 000 and
sought to recover attorney's fees. 205 F.Supp.2d at 509.
Though the court was “tempted as a practical matter to
agree . . . that this case [would] not likely be tried for
less than $6, 000 in attorneys' fees”, it concluded
that “speculative arguments about the potential value
of an attorneys' fees award are insufficient to confer
jurisdiction” and required additional evidence to
determine whether the plaintiffs' attorney's fees
would, in fact, surpass $6, 000. Id. at 510.
the parties do not dispute that Plaintiff's alleged
damages amount to no more than $39, 680. See ECF No.
3 ¶ 34, ECF No. 19-1 at 2. Plaintiff also seeks
attorney's fees for each of her eight claims.
See ECF No. 4 ¶¶ 82(k), 89(d), 98(c),
108(d), 117(d), 128(d), 142(b), 151(d). Defendant argues that
an award of attorney's fees will likely exceed the $35,
320 necessary to bridge the gap between the alleged damages
and the jurisdictional limit, due to the number of counts
involved and the complexity of the involved litigation.
However, as proof, Defendant offers only an unsupported
assertion that this case will require more than 80-120 hours
of work, ECF No. 21 at 5-6, and citations to other cases in
which greater than $35, 320 in attorney's fees have been
awarded. See, e.g., Blaylock v. Johns Hopkins Fed. Credit
Union, 152 Md.App. 338, 355-62 (Md. Ct. Spec. App.
applying the lesser of the two possible standards of proof,
Defendant must prove by a preponderance of the evidence that
Plaintiff's attorney will accumulate greater than $35,
320 in fees as to her specifically, and not merely to the
class. The legal fees on the class claims must therefore be
divided pro rata to determine the portion attributable to
Plaintiff, and then added to the fees Plaintiff's
attorney will incur as to Count VII, which is an individual
claim for violation of the Maryland Consumer Debt Collection
Practices Act and the Maryland Consumer Protection Act.
Because Defendant has offered no evidence as to the size of
the putative class, the Court would have to speculate as to
the pro rata determination of the class claims. Absent any
evidentiary showing or affidavit that Plaintiff's counsel
is unable to prosecute Count VII for less than $35, 320 in
fees, the Court finds that Defendant's proffer of the
amount of fees awarded in other cases involving different
counsel, different statutes, and/or different postures is
insufficient to meet the preponderance of the evidence
standard. See Ndzerre v. Liberty Power Corp., 318
F.Supp.3d 761, 766 (D. Md. 2018) (granting remand where
plaintiff provided only a “speculative and unsupported
assertion” as to the amount of attorney's fees).
Motion to Remand, ECF No. 19, is granted. Defendant's
Motion to Dismiss, ECF No. 20, is denied as moot. A separate
Order shall issue.