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Franco v. City of Seat Pleasant

United States District Court, D. Maryland, Southern Division

March 21, 2019

STEVEN FRANCO et al., Plaintiffs,


          GEORGE J. HAZEL United States District Judge

         Plaintiffs 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.

         I. BACKGROUND

         On 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.

         The 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.

         The 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.

         On May 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.

         Plaintiffs 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.


         A. Motion to Remand

         “On 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 Cir.1994)).

         Ordinarily, 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. Md. 2014).

         “[I]f 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).

         Here, 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 ...

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