Moffit v. Baltimore American Mortg., Civil No. JFM-09-2029.
| Decision Date | 09 October 2009 |
| Docket Number | Civil NoJFM-09-2028.,Civil NoJFM-09-2056.,Civil No. JFM-09-2029. |
| Citation | 665 F.Supp.2d 515 |
| Parties | Judith J. MOFFIT, v. BALTIMORE AMERICAN MORTGAGE, et al., and Edwin K. Ruble, v. The Mortgage Consultants, Inc., et al., and Lynn A. Fulmore, v. Premier Financial Corporation, et al. |
| Court | U.S. District Court — District of Maryland |
E. David Hoskins, The Law Offices of E. David Hoskins LLC, Baltimore, MD, Daniel Oakes Myers, Richardson Patrick Westbrook and Brickman LLC, Mt. Pleasant, SC, for Plaintiff.
Philip M. Andrews, Katrina J. Dennis, Kramon and Graham PA, James Edward Crossan, Gerard J. Gaeng, Rosenberg Martin Funk and Greenberg LLP, Baltimore, MD, Alexandria C. Samuel, John Michael McIntyre, Reed Smith LLP, Pittsburgh, PA, for Defendants.
Each of these cases was removed to this court from the Circuit Court of Maryland for Baltimore City. In all the cases plaintiffs have filed a motion to remand. The motions will be denied.
The material facts are the same in the three cases. Plaintiffs originally filed individual complaints alleging various violations of the Maryland Secondary Mortgage Loan Law. They amended their claim once in state court but added no class allegations in the amended complaint. The trial court dismissed plaintiffs' claims on the ground that they were barred by Maryland's three-year limitations statute. On appeal, the Maryland Court of Appeals reversed, finding that Maryland's twelve-year limitations statute, rather than the three year limitations statute, applied.
After the Maryland Court of Appeals opinion was issued, plaintiffs' counsel sent to defendants' counsel a draft Second Amended and Class Action Complaint ("Second Amended Class Action Complaint") and a covering letter stating that the Second Amended Class Action Complaint would be filed in the near future unless a settlement were reached. Believing that the allegations in the proposed Second Amended Class Action Complaint met the requirements for the exercise of federal jurisdiction under the Class Action Fairness Act ("CAFA") and reasonably believing that the draft Second Amended Class Action Complaint and covering letter could be deemed to be "other paper[s]" within the meaning of 28 U.S.C. § 1446(b) triggering the thirty day period for removal, defendants filed notices of removal. Shortly thereafter, plaintiffs filed their Second Amended Class Action Complaints in this court. Subsequently, plaintiffs filed motions to remand.1
As a general proposition "[a] party that engages in affirmative activity in federal court typically waives the right to seek a remand." Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir.1996). I find that this case falls well within the ambit of this principle. Nothing could more clearly constitute "affirmative activity" than the filing of a Second Amended Class Action Complaint alleging, as plaintiffs have done here, facts that clearly give rise to federal jurisdiction. Further, considerations of sound policy dictate that plaintiffs must be deemed to have waived their right to seek a remand. If they had waited for this court to rule upon their motions to remand and, in the event that those motions were granted, filed their Second Amended Class Action Complaints in state court after remand, defendants could then have filed renewed notices of removal, eliminating the "other paper" issue upon which plaintiff's current motions to remand are based. Thus, by holding that plaintiffs had not waived their right to seek remand by filing their Second Amended Class Action Complaints in this court, I would be permitting them to manipulate the litigation process to deprive this court of jurisdiction it otherwise would have.2
King v. Marriott Int'l, Inc., 337 F.3d 421, 425 (4th Cir.2003) is clearly distinguishable. There, the defendant had filed a notice of removal on the ground that plaintiff's state law claims were preempted by ERISA. Plaintiff disagreed but, after (in ruling on a motion to remand) the district court held that ERISA did preempt plaintiff's state law claims, she amended her complaint to assert a claim under ERISA. On appeal, the Fourth Circuit held that plaintiff's state law claims were not preempted by ERISA and that her filing of an amended complaint after the district court had denied her motion to remand did not constitute a waiver of her...
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...moving to file a supplemental complaint in the federal court and participating in oral argument on the motion); Moffit v. Balt. Am. Mortgage, 665 F.Supp.2d 515, 517 (D.Md.2009) (holding that the plaintiffs waived any right to seek remand by filing a second amended complaint in federal court......
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Cent. W. Va. Reg'l Airport Auth., Inc. v. Triad Eng'g, Inc., Civil Action No. 2:15-cv-11818
...in our circuit. Zodiac points to two district courts in the Fourth Circuit that have adopted the rule. See Moffit v. Baltimore Am. Mortgage, 665 F. Supp. 2d 515, 517 (D. Md. 2009) aff'd sub nom. Moffitt v. Residential Funding Co., LLC, 604 F.3d 156 (4th Cir. 2010)(district court holding tha......
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...v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir.1996); Ficken v. Golden, 696 F.Supp.2d 21, 26–27 (D.D.C.2010); Moffit v. Balt. Am. Mort., 665 F.Supp.2d 515, 517 (D.Md.2009). Here, the plaintiff has litigated her claim in this court for well over a year. The plaintiff has filed several mo......
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Tucker v. Thomas, Civil Action No. 5:10CV31
...party that engages in affirmative activity in federal court typically waives the right to seek a remand." Moffit v. Baltimore Am. Mortg., 665 F. Supp. 2d 515, 517 (D. Md. 2009) (quoting Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir. 1996)). The plaintiffs argue that this Court ......