United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Herbert Baumgarten initiated this defamation action in the
Circuit Court for Baltimore City, Maryland. ECF No. 1-2.
Following removal of the action to this Court by Defendant
Sherree Belsky, Plaintiff filed a Motion to Remand, ECF No.
7, and Defendant filed a Motion to Amend Notice of Removal,
ECF No. 9. No hearing is necessary to resolve the pending
motions. See Loc. R. 105.6 (D. Md. 2016). For the
following reasons, Plaintiff's Motion to Remand is denied
and Defendant's Motion to Amend Notice of Removal is
filed his Complaint in state court on October 10, 2018,
alleging that Defendant had posted defamatory statements
about him on Facebook. ECF No. 1-2. The Complaint alleged
that “[t]his is an action for damages in excess of
Thirty Thousand ($30, 000) Dollars…”
Id. at ¶ 1. Before Defendant responded to the
Complaint, Plaintiff served a Request for Production of
Documents on Defendant on November 19, 2018. ECF No. 1-4.
January 8, 2019, Defendant filed a Motion to Dismiss in state
court. She claimed that Plaintiff had failed to comply with
Maryland Court Rule 2-305, which requires a pleading to state
whether the plaintiff is seeking a judgment in excess of $75,
000, and that he had failed to properly allege a cause of
action for defamation. ECF No. 1-8. During a telephone
conversation on January 9, 2019, Plaintiff's counsel
informed Defendant's counsel that he intended to amend
the Complaint to specifically allege damages exceeding $75,
000. ECF No. 7 ¶ 6; ECF No. 8 at 7. No amendment was
January 14, 2019, Defendant filed a Motion for a Protective
Order, ECF No. 1-7, as well as a Motion to Quash a subpoena
that Plaintiff had served on a third party, ECF No. 1-8. On
January 21, 2019, Plaintiff filed his response to
Defendant's Motion to Dismiss, in which he stated that he
was seeking damages in excess of $75, 000. ECF No. 7-1. On
February 5, 2019, Defendant filed a reply brief in support of
her Motion to Dismiss. ECF No. 1-10. Prior to filing,
Defendant's counsel emailed Plaintiff's counsel a
courtesy copy of the reply brief, to which Plaintiff's
counsel responded, “What authority do you have for
filing a reply memorandum?” ECF No. 11-1. That same
day, Plaintiff filed a letter in the state court objecting to
Defendant's reply brief on the basis that Maryland rules
do not provide for the filing of a reply brief in support of
a motion to dismiss. ECF No. 7-2.
filed her Notice of Removal in this Court on February 7,
2019, and she attached the documents that had been filed in
state court up until that point. ECF No. 1. On March 11,
2019, Plaintiff filed a Motion to Remand. ECF No. 7. On March
20, 2019, Defendant filed an opposition to the Motion to
Remand, ECF No. 8, and a Motion to Amend Notice of Removal to
add documents that were filed in the state court but had not
initially been filed with the Notice of Removal, ECF No. 9.
Plaintiff filed a reply brief in support of his Motion to
Remand on March 23, 2019, ECF No. 11, and a response to the
Motion to Amend on March 26, 2019, ECF No. 12.
MOTION TO AMEND
filing a notice of removal in federal court, a defendant must
also provide “a copy of all process, pleadings, and
orders served upon such defendant or defendants in such
action.” 28 U.S.C. § 1446(a). Where a defendant
fails to include a required document with the notice of
removal, the district court has the authority to allow the
defendant to correct the error where “the error causes
no prejudice to any party, does not delay proceedings in the
federal forum, and is easily curable by a defendant filing a
supplement with the correct paperwork.” Rocha v.
Brown & Gould, LLP, 61 F.Supp.3d 111, 114, 114 n.4
(D.D.C. 2014); see also Christenson Media Grp., Inc. v.
Lang Indus., Inc., 782 F.Supp.2d 1213, 1219 (D. Kan.
2011) (stating that the court has the authority to grant the
defendant an opportunity to cure minor defects in the notice
now seeks to amend the Notice of Removal to include
Plaintiff's response to Defendant's Motion to
Dismiss, which was originally omitted due to a clerical
error, and Plaintiff's February 5, 2019 letter to the
state court regarding the propriety of Defendant filing a
reply brief, which was originally omitted because Defendant
did not receive the letter until after she filed the Notice
of Removal. ECF No. 9 at 2. Defendant's failure to attach
these documents was not prejudicial to Plaintiff, did not
delay any proceedings in this Court, and is easily curable.
Indeed, Plaintiff already filed these documents himself as
attachments to his Motion to Remand, see ECF Nos.
7-1, 7-2, so Plaintiff clearly had access to them and the
Court is now in a position to consider them. The Court will
therefore grant Defendant's Motion to Amend.
MOTION TO REMAND
action filed in state court is one in which a district court
has original jurisdiction, that action may be removed by the
defendant to the district court “for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). A “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…” 28 U.S.C. § 1446(b).
“[I]f the case stated by the initial pleading is not
removable, 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.” 28 U.S.C. §
1446(b)(3). Here, the first “paper” from which
Defendant could ascertain that this case was removable was
Plaintiff's January 21, 2019 Response to Plaintiff's
Motion to Dismiss in which he stated that he was claiming
damages in excess of $75, 000. ECF No. 7-2 at 1. The
thirty-day removal period therefore did not begin to run
until January 21, 2019, see 28 U.S.C. §
1446(b)(3), meaning Defendant's February 5, 2019 Notice
of Removal was timely.
argues that the case should nonetheless be remanded to state
court because Defendant waived her right to removal. ECF No.
7 at 4. The court disagrees. “After a case becomes
removable, a party may waive its right to removal by
demonstrating a clear and unequivocal intent to remain in
state court.” Northrop Grumman Tech. Servs., Inc.
v. DynCorp Int'l LLC, 865 F.3d 181, 186 (4th Cir.
2017) (quoting Grubb v. Donegal Mut. Ins. Co., 935
F.2d 57, 59 (4th Cir. 1991)) (internal quotations omitted).
“A defendant demonstrates this intent by engaging in
‘substantial defensive action' in state court
before filing a notice of removal.” Id.
(quoting Aqualon Co. v. Mac Equip., Inc., 149 F.3d
262, 264 (4th Cir. 1998)). “[A] finding of waiver is
appropriate only in extreme situations, when judicial
economy, fairness, and comity demand it.” Id.
(citing Grubb, 935 F.2d at 59)) (internal quotations
omitted); see also Va. Beach Resort & Conference Ctr.
Hotel Ass'n Condo. v. Certain Interested Underwriters at
Lloyd's London, 812 F.Supp.2d 762, 764 (E.D. Va.
2011) (stating that district courts should find waiver
“only in very limited circumstances”).
“the line between what will constitute waiver of the
right to remove and what will not is far from clear, ”
Charles A. Wright & Arthur R. Miller, 14B Fed. Prac.
& Proc. Juris. § 3721 (4th ed.), the Court concludes
that Defendant's state court filings in this case did not
demonstrate a “clear and unequivocal intent to remain
in state court, ” see Northrop Grumman, 865
F.3d at 186, nor does this case present the sort of
“extreme situation, ” id., in which the
Fourth Circuit has indicated that a waiver may be found. The
only action that Defendant took in state court after
the beginning of the thirty-day removal period on January 21,
2019 and before filing the Notice of Removal on February 7,
2019 was to file a reply brief in support of her Motion to
Dismiss on February 5, 2019. The two-day turnaround between
filing the reply brief in state court and filing the Notice
of Removal in this Court does not signify the sort of
unequivocal intent to remain in state court necessary to
constitute a waiver of the right to remove. See Curl v.