Johnson v. Xerox Educ. Solutions LLC

• Decision Date: 20 October 2014
• Docket Number: Case No.: GJH-14-CV-1542
• Court: U.S. District Court — District of Maryland
• Parties: JOSEPH JOHNSON, JR. Plaintiff, v. XEROX EDUCATIONAL SOLUTIONS LLC, et al. Defendants.

JOSEPH JOHNSON, JR. Plaintiff, v. XEROX EDUCATIONAL SOLUTIONS LLC, et al. Defendants.

Case No.: GJH-14-CV-1542

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

October 20, 2014

MEMORANDUM OPINION

This Memorandum Opinion addresses Plaintiff's Motion to Remand, ECF No. 11, Defendants' Opposition and Cross Motion for Leave to File Amended Notice of Removal, ECF No. 18, and Plaintiff's Reply, ECF No. 20. The Court finds a hearing is unnecessary. See Local Rule 105.6. For the reasons articulated below, Plaintiff's motion is DENIED. Defendants' Motion to Amend their Notice of Removal is GRANTED.

I. BACKGROUND

Plaintiff Joseph Johnson, Jr. filed this lawsuit on February 11, 2014 in the District Court for Prince George's County, Maryland against Defendants Xerox Education Solutions, LLC, Xerox Business Services, LLC, and Xerox Corporation. ECF No. 1 at ¶ 1. After Defendants demanded a jury trial, on March 7, 2014, the case was removed to the Circuit Court for Prince George's County, Maryland. Id. at ¶ 3.

On April 11, 2014, Plaintiff filed an amended complaint, doubling the causes of action from six to twelve. Id. at ¶ 4. Defendants filed a motion to dismiss Plaintiff's original complainton April 14, 2014. ECF No. 21-2. Apparently belatedly realizing Plaintiff had tiled an amended complaint, on May 9, 2013, Defendants filed a notice of removal to this Court based on federal diversity jurisdiction. ECF No. 1. Plaintiff has filed the instant motion to remand. ECF No. 11.

II. DISCUSSION

Pursuant to 28 U.S.C. § 1332(a), federal district courts "have 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—(1) citizens of different 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 is proper over any action that a plaintiff could have filed in federal court. See id.

Plaintiff challenges Defendants' removal on various grounds. He argues that this Court lacks jurisdiction because Defendants did not properly allege diversity, the parties are not diverse, and the amount in controversy does not exceed $75,000. ECF No. 11 at 7-14. Plaintiff also contends that Defendants waived their right to remove the action to federal court by filing a motion to dismiss in state court. In addition, Plaintiff complains that Defendants did not attach all necessary documents to the notice of removal. Id. at 4-7. Plaintiff requests compensation for his time in preparing the motion for remand. Id. at 15-17.

1. Diversity

Plaintiff argues that Defendants were required but failed to allege that Plaintiff was a citizen of Maryland at the commencement of his lawsuit. ECF No. 11 at 8. Plaintiff also denies that he is a citizen of Maryland. Id. Defendants request that the Court permit them to amend their Notice of Removal to assert that Plaintiff was a citizen of Maryland at the commencement of hislawsuit, and Defendants assert that they have sufficiently shown Plaintiff's citizenship. ECF No. 18 at 4-5.

a. Leave to Amend

28 U.S.C. § 1332 governs federal jurisdiction based on diversity of citizenship. Where the basis of removal is diversity, diversity of citizenship must exist at the time the action was filed in state court and at the time of removal. Kessler v. Home Life Ins. Co., 965 F.Supp 11, 12 (D. Md. 1997). Here, Defendants alleged in their Notice of Removal that Plaintiff is a citizen of Maryland, ECF No. 1 at ¶ 6, however, Defendants did not state that Plaintiff was a citizen of Maryland at the time the action was filed. Defendants request leave to amend their notice to includes the allegation that Plaintiff was a citizen of Maryland at the commencement of his lawsuit. ECF No. 18 at 4-5.

Federal courts typically allow amendments to removal petitions to cure a technical defect but not to add a missing jurisdictional allegation. Molnar-Szilasi v. Sears Roebuck & Co., 429 F. Supp. 2d 728, 730 (D. Md. 2006). For example, on the one hand, courts have found that stating the residences of the parties instead of the domiciles or incorrectly stating a principle place of business are technical defects that can be corrected. Id. (citing Muhlenbeck v. KI, LLC, 304 F. Supp. 2d 797, 800 (E.D. Va. 2004)). On the other hand, courts have decided that failure to allege fraudulent joinder or failure to allege a particular basis for removal are mistakes that cannot be corrected. Id. (citing Iceland Seafood Corp. v. Nat. Consumer Cooperative Bank, 285 F.Supp. 2d 719, 726-27 (E.D. Va. 2003) (basis for removal), and Tincher v. Ins. Co., 268 F.Supp. 2d 666, 667 (E.D. Va. 2003) (fraudulent joinder)).

Here, given Defendants' allegation that Plaintiff is a citizen of Maryland, their failure to allege that Plaintiff was a citizen of Maryland when he filed his complaint is a technical defect. Thus, the Court grants Defendants' motion to amend the notice of removal.

b. Citizenship

Defendants assert that Plaintiff is a citizen of Maryland because Plaintiff previously established, before another federal district court, that he was a Maryland citizen. ECF No. 18 at 3-5. Further, Defendants also cite that Plaintiff is a current Maryland resident. Id. at 3. Plaintiff responds by stating that he is not a Maryland citizen. ECF No. 11 at 8.

The party seeking to invoke the jurisdiction of the federal court, in this case Defendants, has the burden of showing jurisdiction is proper. See Sligh v. Doe, 596 F.2d 1169, 1170 (4th Cir. 1979). "For purposes of [f]ederal diversity jurisdiction, a party is a citizen of the State of which he is domiciled." Deese v. Hundley, 232 F.Supp. 848, 849 (W.D. S.C. 1964). (citing Williamson v. Osenten, 232 U.S. 619, 624 (1914)). A domicile is created by ". . . physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). Courts presume that once an individual has established a domicile, he remains a citizen there until he satisfies the mental and physical requirements of domicile in a new state. Dyer v. Robinson, 853 F. Supp. 169, 172-73 (D. Md. 1994); McDougald v. Jenson, 786 F.2d 1465, 1483 (11th Cir. 1986). Thus, a party's previous domicile is presumed to continue unless and until it appears that the party was physically present in another state and he intended to remain in that state indefinitely. O'Brien v. Jansen, 903 F.Supp. 903, 904 (D. Md. 1995). Moreover, an individual's residence at the time a lawsuit is commenced provides prima facie evidence of his domicile. See District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) ("The place where a man lives is properly taken to be hisdomicile until facts adduced establish to the contrary."); Granite Trading Corp. v. Harris, 80 F.2d 174, 176 (4th Cir. 1935); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972).

In 2012, Plaintiff established that he was domiciled in Maryland before the United States Court of Appeals for the Fifth Circuit. Johnson v. Affiliated Computer Servs., Inc., 500 Fed. Appx. 265, 265-66 (5th Cir. 2012) (noting Plaintiff's address as Fort Washington, MD and stating that "[w]ith respect to diversity of citizenship, the supplemental materials provided by Defendant ACS Education Solutions, LLC demonstrate that at all times its members were completely diverse from Johnson"); see also ECF No. 18-4 at ¶ 4, Plaintiff's Amended Complaint in Johnson v. Affiliated Computer Servs., Inc., Civil Action No: 3:10-CV-2333 ("The Plaintiff was a citizen of and resident in Fort Washington, Maryland . . .").

The Court takes judicial notice of the facts presented in Plaintiff's prior litigation in another jurisdiction. See Colonial Penn Ins. Co v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.") (citation and internal quotation marks omitted). Thus, Plaintiff has previously established a domicile in Maryland, and he is presumed to remain a citizen in Maryland. See Dyer v. Robinson, 853 F. Supp. 169, 173 (D. Md. 1994). Plaintiff has not put forth any evidence to rebut this presumption. Indeed, Plaintiff notes that he still resides in Fort Washington, Maryland, ECF No. 4 at ¶ 2. which is a fact that also favors a finding that Plaintiff continues to be a citizen of Maryland. Plaintiff's blanket denial of Maryland citizenship in his brief to the Court, which is not evidence, is insufficient to rebut the presumption of continued Maryland citizenship. With the unrebutted presumption that Plaintiff is a current citizen of Maryland, Defendants have met their burden of showing that all Defendants, citizens of Texas and Connecticut, are diverse from Plaintiff, a citizen of Maryland.

2. Amount in Controversy

Plaintiff disputes that the amount in controversy is over $75,000. Plaintiff alleges twelve theories of recovery, several requesting at least $50,000 in damages and attorney's fees. ECF No. 4. Plaintiff attempts to minimize these amounts by stating that he is not entitled to attorney's fees because he is representing himself and by stating that he is only seeking one set of $50,000 damages based on separate theories of recovery. ECF No. 11 at 11-12. Plaintiff also asserts that Defendants, being the removing parties, are required to demonstrate to a legal certainty that Plaintiff's claims exceed $75,000. Id. at 11. Defendants assert that Plaintiff's damage requests exceed $75,000 because at least some of his counts are separate harms and not simply differing theories for the same harm. ECF No. 18 at 5-6.

Courts generally determine the amount in controversy by reference to the plaintiff's complaint. See Wiggins v. North...