United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
initiated this case in October 2017 in the Circuit Court for
Prince George's County, Maryland (the 2017 case) and it
was later consolidated with a companion case filed in the
same court in May 2018 (the 2018 case). ECF No. 12
¶¶ 10, 12. After the state court cases were
consolidated, Defendants filed a Joint Notice of Removal
within 30 days of service of the 2018 case. ECF No. 1.
Pending before the Court is Plaintiffs' timely Motion to
Remand, ECF No. 12, and Defendants' Motion to Dismiss or
Motion for Summary Judgment, ECF No. 14. No. hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the
following reasons, Plaintiffs' Motion to Remand will be
denied and Defendants' Motion to Dismiss or for Summary
Judgment will be granted.
October 17, 2017, Plaintiffs filed their first lawsuit in the
Circuit Court for Prince George's County, Maryland (the
Circuit Court), alleging that a city ordinance enacted by the
Council of the City of Seat Pleasant (the City) and its Mayor
violated various state and local laws, and requesting, among
other relief, a declaratory judgment that the ordinance
violated the United States Constitution. ECF No. 1-10
¶¶ 21, 31-38. According to the initial complaint,
the ordinance “established a 700% real property
municipal ‘town levy' tax increase year-over-year
(YOY) by Special Assessment on five property owners for their
thirteen commercial properties located within the
City.” Id. ¶ 16. The ordinance imposed a
“Special Assessment”-a “levy made against
certain properties to defray part or all cost of a specific
improvement or service deemed to primarily benefit those
properties.” Id. ¶ 11. The funds from the
tax were to be used “for the financing of public
improvements or services deemed to benefit primarily the
properties against which” the Special Assessment was
levied. Id. ¶ 12.
initial pleading alleged that the ordinance was “an
intentional and systemic discriminatory action by municipal,
County and State officials in undervaluing some property
while taxing at full value other property in the same
class” in violation of the Fourteenth Amendment of
the U.S. Constitution. Id. ¶ 32 (emphasis in
original). In alleging intentional discrimination by
Defendants, Plaintiffs also asserted that the individual
Plaintiffs affected by the ordinance are Jewish and Chinese
and alleged that “there was 96.4% African-American and
0.2% Asian residents” in the City. Id. ¶
36. Plaintiffs further alleged that the ordinance violated
“the Fifth Amendment of the U.S. Constitution, which
prohibits deprivation ‘of property, without due process
of law, '” and prohibits private property from
being “taken for public use, without just
compensation.” Id. ¶ 31. Defendants did
not seek removal of that case within 30 days of being served
with the initial pleading.
Circuit Court's Scheduling Order included a pretrial
conference on April 2, 2018 and set a deadline of “60
days prior to pretrial” for the parties to complete all
amendments to pleadings. ECF No. 13-1. On the same day as the
pretrial conference, Plaintiffs' moved to enlarge the
Circuit Court's Scheduling Order, ECF No. 2-2, which
Defendants opposed, ECF No. 2-10. Then, on April 9, 2018,
Plaintiffs filed a motion for leave to file an amended
complaint. ECF No. 2-3. Plaintiffs' motion to modify the
Scheduling Order and motion for leave were not ruled on by
the Circuit Court.
14, 2018, the City Council repealed the Special Tax
established by the challenged ordinance. ECF No. 14-3. On May
30, 2018, Plaintiffs filed the 2018 case in the Circuit Court
against the City and the Mayor, asserting federal claims
under the Fourteenth Amendment based on the same facts and
circumstances involved in the 2017 lawsuit. ECF No. 1-3. The
2018 Complaint supplemented the factual allegations in the
earlier suit with the allegation that “upon information
and belief, ” Defendant Mayor Eugene Grant
“expressed anti-Semitic sentiments as the motivating
factor for” the enactment of the ordinance.
Id. ¶ 41. Plaintiffs sought damages and
attorneys' fees as relief for Defendants' alleged
substantive due process and equal protection violations.
Id. at 16. As of the filing of the 2018 Complaint,
Plaintiffs had not paid any tax under the ordinance.
Id. ¶ 28.
filed a Motion to Consolidate the two cases on June 1, 2018,
ECF No. 2-9, which the Circuit Court granted on June 15,
2018. ECF No. 2-11. The Circuit Court's order
consolidating the two cases stated that the cases
“arise from the same cause of action, ” and that
the 2018 case would proceed “pursuant to the scheduling
order in” the 2017 case. ECF No. 2-11. According to
Defendants, the Circuit Court erred in consolidating the two
cases because Plaintiffs' Motion to Consolidate had not
yet become ripe. ECF No. 13 at 8. On June 4, 2018, the
City's repeal of the Special Tax went into effect. ECF
No. 14-3. Plaintiffs do not allege that they ever paid any
Special Tax pursuant to the contested ordinance. See
ECF No. 1-3, 1-10. Plaintiffs seek remand of the consolidated
cases and Defendants seek dismissal of both actions.
Motion to Remand
a motion to remand, the court must ‘strictly construe
the removal statute and resolve all doubts in favor of
remanding the case to state court,' indicative of the
reluctance of federal courts ‘to interfere with matters
properly before a state court.'” Ali v. Giant
Food LLC/Stop & Shop Supermarket Co., 595 F.Supp.2d
618, 620 (D. Md. 2009) (quoting Richardson v. Phillip
Morris Inc., 950 F.Supp. 700, 701-02 (D. Md. 1997)). The
removing party “bears the burden of proving that
removal was proper.” Marchese v. JP Morgan Chase
Bank, N.A., 917 F.Supp.2d 452, 459 (D. Md. 2013)
(citations omitted). “[B]ecause of the
‘significant federalism concerns' implicated by
divesting a state court of jurisdiction, removal jurisdiction
is strictly construed.” Stephens v. Kaiser Found.
Health Plan of the Mid-Atlantic States, Inc., 807
F.Supp.2d 375, 378 (D. Md. 2011) (quoting Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
a notice of removal must 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). Though not
jurisdictional, the 30-day time limit is strictly applied.
Marler v. Amoco Oil Co., 793 F.Supp. 656, 659 (E.D.
N.C. 1992) (citing York v. Horizon Fed. Savings and Loan
Ass'n, 712 F.Supp. 85, 87 (E.D.La.1989) and Diaz
v. Swiss Chalet, 525 F.Supp. 247, 250 (D.C.Puerto Rico
1981)). The purpose of the 30-day rule is: “to deprive
the defendant of the undeserved tactical advantage that [it]
would have if [it] could wait and see how [it] was faring in
state court before deciding whether to remove . . .; and to
prevent the delay and waste of resources involved in starting
a case over in a second court after significant proceedings .
. . in the first court.” Wilson v. Intercollegiate
(Big Ten) Conference Athletic Ass'n, 668 F.2d 962,
965 (7th Cir. 1982); see also Citrano v. John
Crane-Houdaille, Inc., 1 F.Supp.3d 459, 465 n. 10 (D.
the case stated by the initial pleading is not removable,
” however, “a notice of removal may be filed
within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” § 1446(b)(3). Under certain
circumstances, consolidation may revive a defendant's
removal right under this exception. In re MTBE Prods.
Liability Litig., 399 F.Supp.2d 340, 353 (S.D.N.Y.
2005). Specifically, although consolidation under Federal
Rule of Civil Procedure 42 “does not merge the suits
into a single cause, ” or “change the rights of
the parties, ” Johnson v. Manhattan Ry. Co.,
289 U.S. 479, 496- 497 (1933), consolidation under Maryland
state rules operates differently where the state court's
intent to consolidate the actions into a single case is
clear. 399 F.Supp.2d at 353-54; see also Receivership
Estate of Mann Bracken, LLP v. Cline, No. RWT 12CV292,
2012 WL 2921355, at *3 (D. Md. July 16, 2012).
the Circuit Court's consolidation order merged the two
cases into a single action, asserting that the two cases
“arise from the same cause of action” and
ordering that the two cases should proceed pursuant to the
2017 case's Scheduling Order, rather than granting
Plaintiffs a new schedule. ECF No. 2-11. Thus, the
consolidation of the two cases triggered a new removal
deadline if the consolidation served as Defendants' first
notice that the ...