Payne v. Bore Express Inc.

• Decision Date: 16 July 2021
• Docket Number: Civil Case No.: 1:21-cv-00048-JMC
• Parties: PAYNE, INC. et al Plaintiffs, v. BORE EXPRESS INC. et al, Defendants.
• Court: U.S. District Court — District of Maryland

PAYNE, INC. et al Plaintiffs, v. BORE EXPRESS INC. et al, Defendants.

Civil Case No.: 1:21-cv-00048-JMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

July 16, 2021

MEMORANDUM OPINION

Plaintiffs Payne, Inc. and David Rickell (together, "Plaintiffs") brought this action against Defendants Bore Express, Inc. and Faysal Ahmed Alas (together, "Defendants") in the Circuit Court for Baltimore City, Maryland, alleging a single count of negligence against each defendant. (ECF No. 3). Defendant Alas removed the case to this Court with Defendant Bore's consent. (ECF No. 1). The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c) and Local Rule 301.4 (D. Md. 2021). (ECF Nos. 25; 26).

Presently before the Court are the following motions: Defendants' Motion to Dismiss for Lack of Prosecution ("Motion to Dismiss") (ECF No. 15); Plaintiffs' Motion to Compel Discovery Responses ("Motion to Compel") (ECF No. 46); Plaintiffs' Motion to Quash 30(b)(6) Deposition Notice ("Motion to Quash") (ECF No. 47); and Plaintiffs' Motion to Remand to State Court for Lack of Subject Matter Jurisdiction ("Motion to Remand") (ECF No. 48). The issues have been fully briefed (ECF Nos. 27, 34, 51, 52, 53, 54, 60) and no hearing is necessary. See Local Rule 105.6. For the reasons more fully explained below: Defendants' Motion to Dismiss is DENIED; Plaintiffs' Motion to Compel is DENIED AS MOOT; Plaintiffs' Motion to Quash is DENIED WITHOUT PREJUDICE; and Plaintiffs' Motion to Remand is DENIED.

BACKGROUND

This case arises out of a multi-car motor vehicle accident on I-95 North in Baltimore City, Maryland, on December 16, 2016. The underlying facts of that accident are not relevant for purposes of this opinion. Thus, the Court will confine its description of the relevant background to the procedural events giving rise to the motions.¹

Plaintiffs filed suit against Defendants in the Circuit Court for Baltimore City (the "Circuit Court") on September 17, 2019. (ECF No. 3).

I. Defendant Alas

The Clerk of the Circuit Court issued a summons for Defendant Alas on September 19, 2019. (ECF No. 15-3). Plaintiffs filed an Affidavit of Process Server asserting that Defendant Alas was served on December 9, 2019, more than sixty days after the Clerk's issuance of the summons. (ECF Nos. 15-4; 27-4). Plaintiffs filed a Request for Order of Default against Defendant Alas on February 13, 2020. (ECF Nos. 15-5; 27-5). The Request for Order of Default was only mailed to Defendant Alas; Plaintiffs did not serve same on Defendant Bore. (ECF Nos. 15-5; 27-5). The Circuit Court entered an order granting the Request for Order of Default on March 13, 2020, and the Clerk of the Circuit Court issued a Notice of Default on March 24, 2020. (ECF No. 27-7). Plaintiffs then filed a Request for Default Judgment against Defendant Alas on May 19, 2020. (ECF No. 15-6; 27-8). The Circuit Court ordered judgment by default in the amount of $374,722.22 against Defendant Alas on June 10, 2020, and the Clerk of the Circuit Court entered same on June 15, 2020. (ECF No. 27-9).

On November 20, 2020, with Plaintiffs' consent, Defendant Alas moved to vacate the default judgment and strike Plaintiffs' purported service on Defendant Alas as improper. (ECF No. 1-17). On December 2, 2020, the Circuit Court granted Defendant Alas' Consent Motion to Vacate Default Judgment and ordered the service stricken. (ECF No. 15-7). Approximately one month later, on January 6, 2021, Counsel for Alas "accepted service on behalf of Defendant Alas." (ECF No. 15-1 at 4). On January 7, 2021, Defendant Alas filed an Answer in the Circuit Court, (ECF No. 1-19; 8), and filed his Notice of Removal in this Court. (ECF No. 1).

II. Defendant Bore

The Clerk of the Circuit Court issued summons for Defendant Bore on September 19, 2019. (ECF No. 15-3). Defendant Bore is a North Carolina corporation with its principal place of business located in Charlotte, North Carolina. (ECF No. 15-8). Defendant Bore's business entity registration identifies Abshir Bore as its registered agent. Id. Plaintiffs first attempted to serve Defendant Bore on October 11, 2019 at its principal place of business and contend that Defendant Bore's registered agent "refused to come out of his office when service was attempted." (ECF No. 27 at 4). Ultimately, Plaintiffs filed an Affidavit of Process Server asserting that Li Omar, "Manager" of Defendant Bore was served. (ECF Nos. 15-9; 27-11). Plaintiffs then requested an Order of Default against Defendant Bore on December 27, 2019. (ECF Nos. 15-1 at 4; 27 at 4). The request was denied for Plaintiffs' failure to attach a certificate of service to the filing. Id. Plaintiffs refiled their request for Order of Default on January 7, 2020. (ECF No. 15-10). Plaintiffs did not serve Defendant Alas with the second Request for Order of Default. Id. The Circuit Court denied this request by an Order indicating that Plaintiffs' Affidavit of Service failed to comply with Maryland Rule 2-124(d).² (ECF Nos. 15-11; 27-12 at 2).

Plaintiffs filed another Affidavit of Process Server which asserted that Defendant Bore's resident agent was served via substitute service on March 9, 2020. (ECF Nos. 15-12; 21-13 at 31). Plaintiffs again filed a Request for Order of Default against Defendant Bore on May 15, 2020. (ECF No. 15-13). The Circuit Court denied this third request for Order of Default for Plaintiffs' failure to comply, this time, with Maryland Rule 2-113.³ (ECF No. 15-14). This Request for Order of Default also was not served on Defendant Alas. Id.

On June 24, 2020, Plaintiffs requested, in writing, that the Clerk of the Circuit Court reissue summons for Defendant Bore, which it did. (ECF No. 15-15). Thereafter, Plaintiffs served Defendant Bore via substituted service on Defendant Bore's resident agent on September 9, 2020. (ECF Nos. 15-16; 27-14). On November 20, 2020, Defendant Bore filed an Answer in the Circuit Court. (ECF Nos. 1-16; 7).

DISCUSSION

I. Motion for Remand

The Court must first address Plaintiffs' motion for remand because "[t]he question of subject-matter jurisdiction necessarily precedes any inquiry into the merits of a case." Eccles v. Nat'l Semiconductor Corp., 10 F. Supp. 2d 514, 516 (D. Md. 1998) (citation omitted). Under 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants. . . ." The removing party bears the burden of establishing jurisdiction. Hurley v. CBS Corp., 648 Fed. App'x. 299, 303 (4th Cir. 2016). "[S]ignificant federalism concerns" require federal courts tostrictly construe removal jurisdiction. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc). If federal jurisdiction is "doubtful," remand is "necessary." Id.

28 U.S.C. § 1446 details the procedure that a party seeking removal must follow. The statute contains two temporal requirements. First, generally, notice of removal "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. . . ." 28 U.S.C. § 1446(b)(1). Second, a civil action where "the case stated by the initial pleading is not removable," may not be removed on the basis of diversity jurisdiction "more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." Id. §§ 1446(b)(3), (c)(1).

Plaintiffs argue that removal was improper because Defendants' Notice of Removal was not filed until more than one year after the commencement of the action in state court. (ECF No. 48-1 at 4-8). Defendants respond that "where a case is removable based on the initial pleading, the one-year time limitation contained in § 1446(c)(1) does not apply." (ECF No. 51 at 5). Accordingly, this Court must decide, as a threshold matter, whether the one-year time limitation on removal applies here.

This action commenced in the Circuit Court on September 17, 2021. (ECF No. 3). "[I]t is clear that this Court looks to the law of the State of Maryland to determine when the action 'commences' under 28 U.S.C. § 1446(b). It is well established that an action commences under Maryland law on the date that the initial complaint is filed." Lexington Market, Inc. v. Desman Assocs., 598 F. Supp. 2d 707, 710 (D. Md. 2009) (citation omitted); see Md. Rule 2-101(a) ("A civil action is commenced by filing a complaint with a court."). Maryland law does not requireservice of process upon a defendant for an action to "commence." Lexington Market, 598 F. Supp. 2d at 711 (citing Sledz v. Flintkote Co., 209 F. Supp. 2d 559, 562 (D. Md. 2002)).

Previous decisions of this Court have recognized that "[T]he United States Court of Appeals for the Fourth Circuit has not directly spoken on whether the one-year time limitation of § 1446(b) applies only to the cases which are the subject of paragraph two of the section, or whether it applies to all cases removed under § 1446." White v. Lexington Court Apartments, Civ. No. DKC-16-0427, 2016 WL 1558340, at *2 (D. Md. Apr. 18, 2016) (quoting LaPosta v. Lyle, Civ. No. 5:11CV117, 2012 WL 1752550, at *3 (N.D.W.Va. May 16, 2012)). That notwithstanding, the "weight of authority construes the one[-]year limitation to apply only to cases that were not originally removable." Id. Indeed,

courts of appeals that have directly addressed the issue have overwhelmingly held that the one-year limitation only applies to the cases addressed by the second paragraph, those not originally removable that only become so during the progression of the case. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316-17 (9th Cir. 1998); Brown v. Tokio Marine & Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002); Price v. Wyeth Holdings, Corp., 505 F.3d 624, 631

...