Kasdon v. GW Zierden Landscaping, Inc., Civ. No. K-80-149
Decision Date | 02 April 1981 |
Docket Number | HM-80-1062.,Civ. No. K-80-149 |
Parties | Lawrence I. KASDON v. G. W. ZIERDEN LANDSCAPING, INC., et al. PRINCE GEORGE'S COUNTY, MARYLAND, etc. v. POTOMAC IRON WORKS, INC., etc., et al. |
Court | U.S. District Court — District of Maryland |
Y. Hillel Abrams, Silver Spring, Md., for plaintiff in Civ. No. K-80-149.
Garland C. Tanks and S. Martin Teel, Jr., Trial Attys., U. S. Dept. of Justice, Washington, D. C., for defendant, United States.
Carl A. Harris, Deputy County Atty., and Michael P. DeGeorge and Michael H. Bereston, Associate County Attys., Upper Marlboro, Md., for Prince George's County, Maryland, defendant in Civ. No. K-80-149 and plaintiff in Civ. No. HM-80-1062.
FRANK A. KAUFMAN and HERBERT
In each of these two cases, the plaintiff therein purchased certain real property located in Prince George's County, Maryland (the County), at a tax sale held by the County on May 8, 1978. Thereafter, each plaintiff instituted an equity action in the Circuit Court for Prince George's County, naming as defendants all persons shown by the applicable records of the County to have any interest in the land in question and seeking foreclosure of such interests, if any, and such rights of redemption, if any, which defendants may have, pursuant to Md.Ann. Code Art. 81, § 70 et seq. One of the defendants in each of the two state court actions is the United States. The latter removed both of those actions to this Court, pursuant to 28 U.S.C. § 1441(a) and/or § 1444. Subsequently, in both removal cases, each plaintiff has filed a motion to remand.
Title 28 U.S.C. § 1444 provides that "any action brought under section 2410 of this title against the United States or in any State court may be removed by the United States to the district court of the United States for the district and division in which the action is pending." Section 2410(a) provides, in part:
Section 2410(a) thereby constitutes, to the extent of its coverage, a waiver of governmental immunity of the United States. The United States contends that section 2410(a)(1) is not applicable herein because no quiet title quest is involved and that section 2410(a)(2) is not applicable because no judicial sale is involved.1 However, the United States also asserts that whether any part of section 2410(a) is or is not applicable poses an issue which the United States has a right to remove to this Court for decision, under 28 U.S.C. § 1444. Plaintiffs do not agree, arguing that such removal by the United States is not permitted where, as plaintiffs claim is true in these cases, original jurisdiction does not exist under 28 U.S.C. § 1340.
The two leading treatises in the field of federal jurisdiction unequivocally reject the reasoning underlying the motions to remand, and cite an impressive body of case law to support the Government's position. Thus, Professors Wright and Miller write:
* * * Unlike the practice under Section 1441, the general removal statute, removal under Section 1444 does not depend on a showing that the action could have been brought originally in a federal court. As a result, even if the state suit includes parties who could not have been joined in an original federal action, the United States may remove the entire suit. It has been held that the waiver of sovereign immunity by the United States contained in Section 2410 is conditioned on the ability of the government to remove under Section 1444 and that because the waiver is conditional, a suit removed under the latter section may not be remanded without the consent of the federal government.
Wright, Miller & Cooper, 14 Federal Practice and Procedure § 3729 at 705-06 (footnotes omitted).
The Moore treatise comments:
1A Moore, Federal Practice ¶ 0.166 (footnotes omitted; emphasis in original).
Neither the Supreme Court of the United States nor the Fourth Circuit has dealt with the issue. In City of Miami Beach v. Smith, 551 F.2d 1370, 1373-74 n.5 (5th Cir. 1977), the Fifth Circuit explicitly stated its agreement with Professor Moore and implicitly its disagreement with the George view. In so doing, Judge Gee wrote:
The United States was properly a defendant under 28 U.S.C. § 2410 (1970); removal was therefore proper under 28 U.S.C. § 1444 (1970). We note some controversy concerning whether § 1444 independently confers federal removal jurisdiction in cases in which the federal district court would not have had original jurisdiction of the cause. See, e. g., George v. United States, 181 F.Supp. 522, 524 (S.D.Tex.1960); 1A Moore's Federal Practice ¶ 0.166 at 360-64 (2d ed. 1974). We find ourselves in agreement with Professor Moore, id. at 361, that § 1444 confers a substantive right to remove, independent of any other jurisdictional limitations. This outcome has apparently been assumed, although not faced headon, in prior decisions of this circuit involving removal under § 1444. See General Electric Credit Corp. v. Grubbs, 447 F.2d 286 (5th Cir. 1971), rev'd on other grounds, 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972); Connecticut Mutual Life Ins. Co. v. Carter, 446 F.2d 136, 138 n.3 (5th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30...
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Kasdon v. GW ZIERDEN LANDSCAPING
...in two of these cases, this Court held that those removals were appropriately and properly accomplished. Kasdon v. G. W. Zierden Landscaping, Inc., 512 F.Supp. 172 (D.Md.1981). After said prior opinion was filed, these cases were consolidated for all purposes pursuant to Federal Civil Rule ......
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