United States District Court, D. Maryland
THE MONTESSORI SOCIETY OF CENTRAL MARYLAND, INC. t/a Greenspring Montessori School
ALLEN HICKS, et al.
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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. (Id., at
2 ¶¶ 4-5). The court granted the consent motion.
(ECF No. 16).
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. (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.
Standard of Review
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.
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
Defendant BrightView's Motion to Sever and Remand
Defendant Hicks; Plaintiff's Motion to Remand
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
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 ...