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Montessori Society of Central Maryland, Inc. v. Hicks

United States District Court, D. Maryland

November 18, 2019

THE MONTESSORI SOCIETY OF CENTRAL MARYLAND, INC. t/a Greenspring Montessori School
v.
ALLEN HICKS, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution in this breach of contract and tort case is the motion to sever and remand the claim against Defendant Allen Hicks ("Defendant Hicks") filed by Defendant BrightView Landscapes, LLC ("Defendant BrightView") (ECF No. 3); the motion to dismiss filed by Defendant BrightView (ECF No. 4); and the motion to remand filed by Plaintiff Montessori Society of Central Maryland, Inc. t/a Greenspring Montessori School ("Plaintiff") (ECF No. 20) . The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to sever and remand the claim against Defendant Hicks will be denied and the motion to remand will be granted. The motion to dismiss remains for resolution after remand.

         I. Background

         In December 2014, Plaintiff, a private school, and Defendant BrightView, a landscaping company and vendor for Plaintiff, executed a landscape maintenance agreement for the 2015 calendar year. The agreement outlined the work that Defendant BrightView would perform for Plaintiff, including “mowing and trimming, spring cleanup, weed and mulch work, and leaf removal.” (ECF No. 7, at 5 ¶ 24). Defendant BrightView hired Defendant Hicks, an individual previously convicted of rape in February 1997 and released in March 2015 after serving 18 years of a 25-year sentence, to perform work under the agreement.[1]

         On December 23, 2015, Defendant Hicks attacked and raped one of Plaintiff's employees on Plaintiff's property. A jury convicted Defendant Hicks of first-degree rape, two counts of first-degree sexual offense, kidnapping, and robbery. Defendant Hicks is serving his sentence: three consecutive life sentences without parole.

         On December 21, 2018, Plaintiff filed a complaint raising a trespass claim against Defendant Hicks in the Circuit Court for Baltimore County, Maryland. On February 28, 2019, Plaintiff filed a first amended complaint to include contract and tort claims against Defendant BrightView. On August 16, 2019, Defendant BrightView filed a notice of removal and removed the case to the United States District Court for the District of Maryland. (ECF No. 1). Defendant BrightView concomitantly filed the presently pending motion to sever and remand the claim against Defendant Hicks, (ECF No. 3), and the motion to dismiss (ECF No. 4).

         Plaintiff and Defendant BrightView then filed a consent motion to set briefing schedule. (ECF No. 15). The consent motion explained that Plaintiff intended to file a competing motion to remand the entire case and proposed a schedule to coordinate briefing on the competing remand motions.[2] (Id., at 2 ¶¶ 4-5). The court granted the consent motion. (ECF No. 16).

         On September 23, 2019, Plaintiff filed a combined motion to remand and response to Defendant BrightView's motion to sever and remand the claim against Defendant Hicks.[3] (ECF No. 20). On October 14, 2019, Defendant BrightView filed a response to Plaintiff's motion to remand. (ECF No. 23). On October 28, 2019, Defendant BrightView filed a reply regarding its motion to sever and remand the claim against Defendant Hicks, (ECF No. 26), and Plaintiff filed a reply regarding its motion to remand, (ECF No. 27). Defendant Hicks has not filed an answer or otherwise appeared in this case.

         II. Standard of Review

         Under 28 U.S.C. § 1441(a), a “civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants[.]” The burden of demonstrating jurisdiction, and the propriety of removal, rests with the removing party. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004). 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. Barbour v. Int'l Union, 640 F.3d 599, 605 (4th Cir. 2011) (en banc), abrogated by statute on other grounds by 28 U.S.C. § 1446(b)(2)(B). This standard reflects the “significant federalism concerns” raised by removal. Id.

         Federal district courts “have original jurisdiction of all civil actions where the matter in controversy exceeds. . . $75, 000. . . and is between citizens of different States[.]” 28 U.S.C. § 1332(a)(1). Complete diversity of citizenship must exist to satisfy § 1332's diversity requirement. “In determining the propriety of a petition for removal, the [c]ourt must restrict itself to ‘the plaintiff's pleading, which controls.'” Griffin v. Ford Consumer Fin. Co., 812 F.Supp. 614, 616 (W.D. N.C. 1993) (citing Am. Fire and Cas. Co. v. Finn, 341 U.S. 6, 14 (1951)).

         III. Defendant BrightView's Motion to Sever and Remand Defendant Hicks; Plaintiff's Motion to Remand

         Plaintiff and Defendant BrightView agree that Plaintiff is a citizen of Maryland, Defendant BrightView is a dual citizen of Delaware and Pennsylvania, and Defendant Hicks is a citizen of Maryland. Plaintiff contends that diversity is incomplete on the face of the first amended complaint. Defendant BrightView argues that Plaintiff fraudulently misjoined Defendant Hicks to defeat diversity jurisdiction or, in the alternative, that the court may exercise its discretion under Fed.R.Civ.P. 21 to sever Defendant Hicks because he is not necessary and indispensable.

         A. Fraudulent Misjoinder

         “Fraudulent misjoinder ‘is an assertion that claims against certain defendants, while provable, have no real connection to the claims against other defendants in the same action and were only included. . . to defeat diversity jurisdiction and removal.'” Stephens v. Kaiser Found. Health Plan, 807 F.Supp.2d 375, 379 (D.Md. 2011) (quoting Wyatt v. Charleston Area Med. Ctr., Inc., 651 F.Supp.2d 492, 496 (S.D.W.Va. 2009). Fraudulent misjoinder is “newer and more ambiguous” than the fraudulent joinder doctrine, Stephens, 807 ...


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