Williams v. Home Properties, L.P. et al
Filing
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MEMORANDUM AND ORDER denying 6 Motion to Remand to State Court; granting 11 Motion to Dismiss for Lack of Prosecution; granting in part 12 MOTION to Dismiss Count IV and any Claims for Punitive Damages. Signed by Judge Marvin J. Garbis on 12/30/2013. (aos, Deputy Clerk) Modified on 12/31/2013 (aos, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNISNICOLE WILLIAMS
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Plaintiff
vs.
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HOME PROPERTIES, L.P. et al.
Defendants
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CIVIL ACTION NO. MJG-13-2947
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MEMORANDUM AND ORDER RE: REMAND AND DISMISSAL
The Court has before it Plaintiff's Motion to Remand
[Document 6], Defendants' Motion to Dismiss Defendant LaChance
for Fraudulent Joinder [Document 11], and Defendant Home
Properties, L.P.'s Motion to Dismiss Count IV and Any Claim for
Punitive Damages [Document 12].
The Court finds that a hearing
is unnecessary.
I.
BACKGROUND
Plaintiff Annisnicole Williams ("Williams") has sued
Defendants Home Properties, L.P. ("Home Properties"), a New York
Corporation, and Melissa LaChance ("LaChance"), a Maryland
citizen.
Williams asserts claims in four Counts:
Count I – Negligence
Count II – Violations of the Maryland Consumer Protection Act
Count III – Fraudulent Concealment
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Count IV – Battery
The suit was filed in the Circuit Court for Frederick
County, Maryland.
Home Properties removed the case to this
Court, asserting that diversity jurisdiction exists because of
the fraudulent joinder of Defendant LaChance.
motion, Williams seeks remand.
By her instant
Defendants seek dismissal of all
claims against Defendant LaChance, dismissal of the battery
claim in Count IV against Defendant Home Properties, and
dismissal of all claims for punitive damages.
II.
JURISDICTION
The removal statute, 28 U.S.C. § 1441(a), provides that:
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,
to the district court of the United States
for the district and division embracing the
place where such action is pending.
The diversity statute provides, in pertinent part:
The district courts shall 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 . . . .
28 U.S.C. § 1332(a)(1).
When a district court's jurisdiction is based on diversity
of citizenship, there must be complete diversity between the
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parties.
See Caterpillar Inc. v. Lewis, 519 U.S. 61, 67-68
(1996).
That is, none "of the parties in interest properly
joined and served as defendants [may be] a citizen of the State
in which such action is brought."
28 U.S.C. § 1441(b)(2).
Williams seeks remand on the ground that the presence of
LaChance, a Maryland citizen, as a Defendant destroys diversity.
Home Properties asserts that this Court should retain
jurisdiction because Williams has fraudulently joined LaChance
and that such "fraudulent joinder" cannot defeat the right of
removal.
To establish fraudulent joinder of a nondiverse defendant,
"the removing party must establish either: [t]hat there is no
possibility that the plaintiff would be able to establish a
cause of action against the in-state defendant in state court,
or [t]hat there has been outright fraud in plaintiff's pleading
of jurisdictional facts."
See Mayes v. Rapoport, 198 F.3d 457,
464 (4th Cir. 1999) (alteration in original) (quoting Marshall
v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
A defendant claiming fraudulent joinder carries a heavy
burden.
"'[T]he defendant must show that the plaintiff cannot
establish a claim against the nondiverse defendant even after
resolving all issues of fact and law in the plaintiff's favor.'"
Id. (quoting Marshall, 6 F.3d at 232-33).
Moreover, "a claim
need not ultimately succeed to defeat removal; only a
possibility of a right to relief need be asserted."
Marshall, 6
F.3d at 233 (citing 14A Charles Alan Wright & Arthur F. Miller,
Federal Practice & Procedure § 3723 (1985)).
In evaluating a
claim of fraudulent joinder, the court may consider the entire
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record and use any means available to determine the basis of
such joinder.
Mayes, 198 F.3d at 464.
Home Properties does not allege "fraud" in the sense of
dishonesty in Williams's pleadings.
Instead, Home Properties
contends that Williams has no bona fide claim against LaChance
and added her as a party solely to defeat federal diversity
jurisdiction.
III. DISCUSSION
A.
"Facts" Alleged by Plaintiff1
On December 9, 2012, Williams signed a lease with Home
Properties for an apartment at Hunter's Glen in Frederick
County, Maryland ("the Apartment").
She had been induced to
sign the lease in reliance upon a "Pledge" from Home Properties
that the "apartment will be prepared to your satisfaction when
you move in."
Compl. at ¶ 4.
However, when Williams moved into the Apartment on December
15, 2012, it was infested with bed bugs.
On December 23, 2012,
Williams realized that she was being bitten by bed bugs and
reported the bed bug infestation to LaChance.
B.
Negligence
On her alleged facts, Williams would have a claim against
Home Properties for failure to comply with its obligation to
provide an uninfested apartment.
Whether this claim would be a
tort claim, in addition to a breach of contractual/statutory
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The "facts" herein are as alleged by Plaintiff and are not
necessarily agreed upon by Defendant.
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duty, need not now be determined.
However, on the alleged
facts, there is no realistic possibility of a successful
negligence claim against LaChance.
Williams alleges no specific negligence on the part of
LaChance that would be a cause of the infestation.
The mere
fact that LaChance was the property manager would not render her
personally responsible for every failure of other employees or
of independent contractors of Home Properties to sanitize the
Apartment.
There is no allegation of any connection between
LaChance and the failure to disinfest the Apartment.
Williams claims that she needs the deposition of LaChance
in order to oppose the instant motion.
She will, of course,
have ample opportunity for discovery, including a deposition of
LaChance.
However, the instant motion is based upon what was
alleged in the Complaint and not upon what might be alleged in
some amended complaint that may be filed in the future.
Should
Plaintiff, through discovery, be able to present a plausible
claim against LaChance, she can file a motion seeking leave to
add LaChance as a party Defendant.
Any such motion would be
resolved in due course under the circumstances presented at the
time of filing.
C.
Consumer Protection Act and Fraudulent Concealment
Williams has not alleged facts that would support a
plausible claim against LaChance under the Maryland Consumer
Protection Act or for fraudulent concealment.
There is no
allegation that LaChance had any role in providing the "Pledge"
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to Williams or otherwise made any representation to Williams or
had any participation in regard to the lease that would have
affected Williams's decision to sign the lease for the
Apartment.
D.
Battery
Williams has not alleged facts that present any possibility
of a successful claim against either Home Properties or LaChance
for battery.
Under Maryland law, the tort of battery is an unpermitted
intentional touching that is harmful or offensive.
See
Janelsins v. Button, 648 A.2d 1039, 1042, 102 Md. App. 30, 35
(Md. Ct. Spec. App. 1994).
There is no allegation – and no realistic possibility on
the alleged facts – that either Home Properties or LaChance
intended to cause the bed bugs to bite Williams.
E.
Punitive Damages
The Court does not find – assuming that all of Williams's
allegations are true – that Williams definitely would have no
plausible claim for punitive damages should she prevail on any
of her claims against Home Properties.
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IV.
CONCLUSION
For the foregoing reasons:
1.
Plaintiff's Motion to Remand [Document 6] is
DENIED.
2.
Defendants' Motion to Dismiss Defendant LaChance
for Fraudulent Joinder [Document 11] is GRANTED.
3.
All claims against the fraudulently joined
defendant LaChance are dismissed.
4.
Defendant's Motion to Dismiss Count IV and Any
Claim for Punitive Damages [Document 12] is
GRANTED IN PART.
a.
b.
5.
Count IV (battery) against Defendant Home
Properties is DISMISSED.
Plaintiff's claims for punitive damages on
Counts other than Count IV remain pending.
Plaintiff shall arrange a telephone conference to
be held by January 31, 2014 to discuss the
Scheduling Order to be issued thereafter.
SO ORDERED, this Monday, December 30, 2013.
/s/__________
Marvin J. Garbis
United States District Judge
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