Almutairi v. Johns Hopkins Health Sys. Corp.

• Decision Date: 08 January 2016
• Docket Number: Civil No. ELH-15-2864
• Parties: AZARI ALMUTAIRI et al., Plaintiffs, v. THE JOHNS HOPKINS HEALTH SYSTEM CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Maryland

AZARI ALMUTAIRI et al., Plaintiffs, v. THE JOHNS HOPKINS HEALTH SYSTEM CORPORATION, et al., Defendants.

Civil No. ELH-15-2864

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

January 8, 2016

MEMORANDUM

In this Memorandum, I consider plaintiff's motion to remand this medical malpractice action to a Maryland State court.

On September 14, 2015, Azari Almutairi and her husband, Ahmad A. Almutairi, plaintiffs, filed suit in the Circuit Court for Baltimore City against the following defendants: The Johns Hopkins Health System Corporation; The Johns Hopkins Hospital, Inc.; The Johns Hopkins University; Johns Hopkins Bayview Medical Center, Inc.; Mahmoud Malas, M.D.; Thomas Reifsnyder, M.D.; and Johns Hopkins Community Physicians, Inc. ECF 2, Complaint. Plaintiffs allege that Ms. Almutairi underwent leg surgery at Johns Hopkins Hospital in 2012 and that "negligence on [the] part of Defendants undermined the success of the procedure, and caused her to experience, emotional and physical pain and suffering, mental anguish, disability, disfigurement, including surgical amputation of her leg, and economic loss, past, present and future." ECF 2 at 3 ¶ 1.¹

The suit seeks unspecified damages for medical negligence and loss of consortium. See id. at 14-20. But, in the "Civil - Non-Domestic Case Information Report" that plaintiffs filed with the Circuit Court for Baltimore City on September 14, 2015, they stated that they sought "Over $100,000" in "Damages/Relief." ECF 2-3 at 1.

On September 22, 2015, before service was effected, defendants removed the case to federal court based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332, as well as §§ 1441 and 1446. ECF 1, Notice of Removal. Defendants asserted that they are citizens of Maryland and that plaintiffs are citizens of Kuwait, id. at 4 ¶¶ 4-5, and that "the Complaint seeks unspecified damages that will exceed $75,000." Id. at 4 ¶ 6. Plaintiffs served defendants with the suit on September 23, 2015, and September 24, 2015. ECF 10 at 1 ¶ 1, Statement Concerning Removal on Behalf of All Defendants.²

On October 26, 2015, thirty-four days after the case was removed to this Court, plaintiffs filed a Motion For Remand, accompanied by a Memorandum of Law (filed jointly as ECF 11) (collectively "Motion"). Defendants oppose the Motion. ECF 13, Opposition. Plaintiffs have not filed a reply and the time to do so has expired.

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will DENY the Motion.

I. Discussion

Section 1332(a) of Title 28 of the United States Code grants federal district courts "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs," and is between "citizens of a State and citizens or subjects of a foreign state . . . ." Id. § 1332 (a)(2). Plaintiffs do not dispute defendants' assertion on removal that the amount in controversy exceeds the jurisdictional threshold of $75,000, and that this case involves a dispute between "citizens of a State and citizens or subjects of a foreign state." In particular, plaintiffs agree "that each defendant is a citizen of Maryland." ECF 11 at 6 n.4. In addition, the Motion identifies plaintiffs as "foreign nationals," id. at 3, and plaintiffs do not dispute the assertion in ECF 1 that they are citizens of Kuwait. Thus, there is no dispute that the suit could have been brought in federal court based on diversity.³

In the Motion, plaintiffs assert: "In 2012, Azari Almutairi, then a Kuwaiti Bank vice-president, traveled to Maryland for the sole purpose of undergoing complex surgery . . . ." ECF 11 at 3. They add: "Johns Hopkins Hospital actively solicits patients from across the world to travel to Baltimore, Maryland for treatment." Id. at 3 n.1.

Plaintiffs claim in their Motion that defendants' removal violates the so-called "forum defendant rule" under 28 U.S.C. § 1441(b)(2). See ECF 11 at 5, Motion. Section 1441(b)(2) provides: "A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."

"Removal based on diversity jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court." Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006) (citation omitted), cert. denied, 549 U.S. 1207 (2007). But, "[t]he need for such protection is absent . . . in cases where the defendant is a citizen of the state in which the case is brought." Id. According to plaintiffs, given that all defendants are citizens of Maryland, remand is warranted. ECF 11 at 6; ECF 11 at 6 n.4; ECF 1 at 4 ¶ 5. In particular, plaintiffs argue that a literal application of § 1441(b)(2)'s "properly joined and served" provision would be contrary to congressional intent (see ECF 11 at 6) and encourage defendants to become "docket trolls," who opportunistically remove before service. Id. at 18.

Defendants counter that § 1441(b)(2)'s plain meaning applies the "forum defendant rule" only to forum defendants who have been "properly joined and served" before removal. See ECF 13 at 9-18, Opposition. Because the defendants were not served before removal, they contend that the rule is inapplicable.⁴

Defendants, however, argue, that the Court need not consider the application of the "forum defendant rule" because the Motion is untimely. See id. at 2-9. Title 28 U.S.C. § 1447(c) provides, in pertinent part: "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."⁵

In their Opposition, defendants assert, ECF 13 at 1 (emphasis in original):

Plaintiffs in this diversity case have waived their objection to proceeding in this Court by letting the 30-day deadline for seeking remand pass without filing any objection. Although parties can challenge this Court's subject matter jurisdiction at any time, the controlling federal removal statute requires plaintiffs to raise - or waive - whatever procedural objections to removal that they may have within 30 days after the removal notice is filed. Here, Plaintiffs failed to do so. Instead, they waited 34 days - four days past their statutory deadline - to file their motion for remand, which raises a merely procedural objection. As a matter of law, their objection is waived.

In Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196-97 (4th Cir. 2008), the Fourth Circuit said: "In the case where remand is based on a lack of subject matter jurisdiction, the remand order may be entered at any time, for jurisdiction goes to the very power of the court to act. . . . But in the case where remand would be justified by a defect in removal other than a lack of subject matter jurisdiction, the defect must be asserted by a party's motion to remand filed within 30 days." (Citations omitted); see Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006) ("Failure of all defendants to join in the removal petition does not implicate the court's subject matter jurisdiction. Rather, it is merely an error in the removal process. As a result, a plaintiff who fails to make a timely objection waives the objection. See 28 U.S.C.A. § 1447 (c) . . . ."); Cades v. H & R Block, Inc., 43 F.3d 869, 873 (4th Cir. 1994) ("A motion to remand the case because of a defect in removal procedure must be made within 30 days after filing the notice of removal. 28 U.S.C. § 1447(c). An untimely removal is a defect in removal procedure."), cert. denied, 515 U.S. 1103 (1995); 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and Procedure § 3739, at 804-815 (4th ed. 2009 & Supp. 2015) (hereinafter "Wright & Miller") ("After the expiration of the 30-day period following the filing of the removal notice, the right to object to nonjurisdictional defects in the removal process is considered waived. The expiration of this time period bars both a motion to remand (for nonjurisdictional defects) by any of the parties and a sua sponte remand on such grounds by the district court.").

The Fourth Circuit has said: "Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction." Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). "Federal courts strictly observe the thirty-day deadline for filing motions to remand." Alter v. Bell Helicopter Textron, Inc., 944 F. Supp. 531, 535 (S.D. Tex. 1996). See, e.g., Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 566 (5th Cir. 1995) (concluding that a motion to remand based on procedural defects, filed 34 days after notice of removal had been filed, was untimely and stating: "[A] district court has no discretion to remand to state court when a motion to do so is grounded on improper removal procedures and that motion is not made within thirty days following filing: Under such circumstances, the objection to remove jurisdiction resulting from a defect in the removal procedure is waived.")(emphasis in original); Bell v. Arvin Meritor, Inc., No. 12-00131-SC, 2012 WL 1110001, at *1 (N.D. Cal. Apr. 2, 2012) ("Defendants filed the Notice of Removal on January 6, 2012, but Plaintiffs did not move to remand until thirty-four days later, on February 9, 2012. Accordingly, Plaintiffs['] Motion to Remand is untimely."); Park v. McGowan, No. 11-CV-3454 JG CLP, 2011 WL 4963759, at *6 (E.D.N.Y. Oct. 19, 2011) (concluding that plaintiff "has waived his...