Johnson v. Citibank, N.A.

• Decision Date: 05 December 2014
• Docket Number: Case No. PWG–14–3024.
• Citation: 63 F.Supp.3d 545
• Parties: Joe JOHNSON, Plaintiff, v. CITIBANK, N.A., Defendant.
• Court: U.S. District Court — District of Maryland

63 F.Supp.3d 545

Joe JOHNSON, Plaintiff

v.CITIBANK, N.A., Defendant.

Case No. PWG–14–3024.

United States District Court, D. Maryland, Southern Division.

Signed Dec. 5, 2014.

Joe Johnson, Fort Washington, MD, pro se.

Sarah E. Meyer, Treanor Pope and Hughes PA, Towson, MD, for Defendant.

MEMORANDUM OPINION¹

PAUL W. GRIMM, District Judge.

After initially filing this case pro se in Maryland district court, Plaintiff prayed a jury trial and it was transferred to Maryland circuit court, where the complaint was amended several times. After Plaintiff filed his jury demand, Defendant sought to remove to this Court by filing a notice of removal and providing notice to Plaintiff and the state district court—but not to the circuit court. Plaintiff has moved, inter alia, to remand this case to state court on the grounds that there was no case pending in district court to remove after the jury demand was filed. I disagree, and find that although jurisdiction transferred from state district court to circuit court with the filing of the jury demand, the case remained pending and was removable to this court. However, because Defendant did not provide notice to the circuit court (in which the case was pending) until after Plaintiff amended his complaint to remove all of his federal claims, there was no basis for federal jurisdiction at the time that removal was effected. Accordingly, this case must be remanded to state court.

I. BACKGROUND

For purposes of the pending motion, the relevant facts are undisputed and, for the most part, are reflected in court dockets that are judicially noticeable. See Fed.R.Evid. 201, 803(8)(A)(i), 902(5).

Plaintiff Joe Johnson initially filed his pro se complaint in the District Court for Prince George's County on August 21, 2014, Compl., ECF No. 2, setting forth two counts arising out of alleged billing errors on his credit cards—(I) violation of the Fair Credit Billing Act (“FCBA”), 15 U.S.C. § 1666,² and (II) defamation—and seeking $2,500 in damages, plus interest, id. Defendant Citibank, N.A. (“Citibank”) was served with process on September 2, 2014. Notice of Removal ¶ 2, ECF No. 1. Shortly thereafter on September 4, 2014, Johnson filed a nine-count amended complaint (“1st Am. Compl.”) setting forth claims not only for (I) FCBA violations and (II) defamation, but also for (III) libel, (IV) “Invasion of Privacy by Intrusion upon Seclusion,” (V) “Breach of Statutory Duty,” (VI) breach of fiduciary duty, (VII) “Breach of Agreement,” (VIII) negligence, and (IX) intentional infliction of emotional distress. 1st Am. Compl., ECF No. 6. Johnson also increased the damages he sought to $11,000 plus interest and demanded a jury trial. 1st Am. Compl. 13. The district court rejected the jury demand because Johnson's claim did not meet the threshold under Md.Code Ann., Cts. & Jud. Proc. § 4–402(e)(1) (“In a civil action in which the amount in controversy does not exceed $15,000, ... a party may not demand a jury trial pursuant to the Maryland Rules.”), or Article 5 of the Maryland Declaration of Rights. See Dist. Ct. Docket, Johnson v. Citibank, N.A., No. 050200198202014 (Md.Dist.Ct.P.G.Cnty. filed Aug. 22, 2014), available at http://casesearch.courts.state.md. us/inquiry/inquiryDetail. jis?caseId=050200198202014&detailLoc=DSCIVIL (last visited Dec. 5, 2014).

On September 16, 2014, Johnson then filed a Second Amended Complaint in Prince George's County district court that consisted only of a Civil Cover Sheet incorporating the First Amended Complaint by reference and sought to “increas[e] and/or correct[ ] AD DAMNUM,” to $30,000 “and DEMAND[ ] JURY TRIAL.” 2d Am. Compl., ECF No. 7.³ The District Court Docket reflects that the case was sent to the Circuit Court for Prince George's County on September 17, 2014 and the circuit court accepted jurisdiction over it the next day, September 18, 2014. Cir. Ct. Docket, Johnson v. Citibank N.A., No. CAL14–25579 (Cir.Ct.P.G.Cnty. filed Sept. 18, 2014), available at http:// casesearch.courts.state.md.us/inquiry/inquiryDetail.jis?caseId=CAL 1425579&detailLoc=PGV (last visited Dec. 5, 2014). However, Citibank has claimed in its briefs (though not in an affidavit, declaration, or other sworn statement under 28 U.S.C. § 1746 ) that its counsel contacted the clerk of the circuit court on September 23, 2014 and “was advised that the file remained with the District Court,” following which Citibank's counsel was able to obtain some case documents from the clerk of the district court. Def.'s Remand Opp'n 2.

On September 25, 2014, Citibank filed a Notice of Removal in this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446, on the grounds that Johnson's FCBA claim presented a federal question under 28 USC § 1331. Notice of Removal. Citibank served a copy of the Notice of Removal on Johnson as required by 28 U.S.C. § 1446(d), Notice of Removal 4, and filed a copy of the Notice of Removal in the District Court for Prince George's County on September 25, 2014, which was accepted by the clerk of that court, Notice of Removal to the U.S. D. Ct. for D. Md., S. Division Under 28 U.S.C. §§ 1331, 1441, and 1446, at 1, Def.'s Remand Opp'n Ex. 2, ECF No. 19–2. However, Citibank never filed a copy of the Notice of Removal in the Circuit Court for Prince George's County.⁴ On September 30, 2014, the clerk of the Circuit Court for Prince George's County sent out the letter required by Md. Rule 2–326(a) advising Citibank that the case had been transferred to the circuit court as of September 18, 2014. Letter from Marilynn M. Bland, Clerk of the Circuit Court to Citibank (Sept. 30, 2014), Pl.'s Mot. to Remand Ex. B, ECF No. 16–3; see also Cir. Ct. Docket.

On September 30, 2014, Johnson filed a third amended complaint⁵ in circuit court, setting forth ten counts for: (I) “Breach of Agreement”; (II) defamation; (III) libel; (IV) “Invasion of Privacy by Intrusion upon Seclusion”; (V) “Breach of Statutory Duty”; (VI) breach of duty of care; (VII) “Breach of Agreement”; (VIII) negligence; (IX) “Unfair and Deceptive Trade Practice”; and (X) intentional infliction of emotional distress.3d Am. Compl., Pl.'s Mot. to Remand Ex. C, ECF No. 16–4.

Conspicuously missing from the Third Amended Complaint are any claims arising under federal law.

On October 2, 2014, Citibank filed a Motion to Dismiss Plaintiff's Second Amended Complaint (“Def.'s Mot. to Dismiss”), ECF No. 13, in this Court pursuant to Fed.R.Civ.P. 12(b)(6). Johnson responded on October 6, 2014 with a Motion to Strike Defendant's Notice of Removal, or in the Alternative, to Remand Case (“Pl.'s Mot. to Remand”), ECF No. 16, and supporting Memorandum (“Pl.'s Remand Mem.”), ECF No. 16–1, and a Motion for Enlargement of Time (“Pl.'s Mot. to Extend”), ECF No. 15, seeking to delay his response to the motion to dismiss until his motion to remand is resolved. That same day, he filed a Fourth Amended Complaint in the circuit court, which added a claim for “Violation of Maryland Equal Credit Opportunity Act” but otherwise appears similar to the Third Amended Complaint. 4th Am. Compl., Def.'s Remand Opp'n Ex. 3, ECF No. 19–3.⁶ Johnson amended his complaint a fifth time (captioned “Fourth Amended Complaint”) on October 10, 2014, with a complaint that sets forth the same counts as the Fourth Amended Complaint and seeks $50,000 in monetary damages. 5th Am. Compl., Pl.'s Remand Reply Ex. 1, ECF No. 21–1. The Circuit Court Docket reflects that on October 28, 2014, Citibank filed a Motion to Stay Proceedings and Extend Time Within Which Citibank Must File a Response to Plaintiff's Fourth Amended Complaint in Light of Notice of Removal Filed September 25, 2014 (“Def.'s Mot. to Stay State Proceedings”) in the circuit court. Cir. Ct. Docket. The circuit court granted the motion over Johnson's opposition on November 24, 2014. Id.

Citibank has filed an opposition to the Motion to Remand (“Def.'s Remand Opp'n”), ECF No. 18, and Johnson has replied (“Pl.'s Remand Reply”), ECF No. 21. Citibank also has filed a response to the Motion to Extend consenting to an extension in principle but seeking more stringent conditions than Johnson had requested. Def.'s Extend Resp., ECF No. 18. Both motions are ripe and now are before me. Having reviewed the filings, a hearing is not required. Loc. R. 105.6.

II. STANDARD OF REVIEW

A motion to remand raises both jurisdictional and procedural issues. Pursuant to 28 U.S.C. § 1331, federal “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” When a plaintiff files such an action in state court, the action “may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Removal to federal court does not provide an independent basis for jurisdiction, but merely is a means to bring before a federal court a case within its original jurisdiction. 14B Charles Alan Wright, et al., Federal Practice & Procedure: Jurisdiction & Related Matters § 3721.

Title 28 U.S.C. § 1446, which outlines the procedures for the removal of civil actions, provides in relevant part:

(a) Generally. —A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; generally. —(1) The 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 upon which such action or proceeding is based, or

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