Liberty Marina Limited Partnership et al v. Hanover Insurance Company

Filing 44

MEMORANDUM AND ORDER denying Plaintiff's 15 Motion to Remand. Signed by Judge Ellen L. Hollander on 6/4/2015. (dass, Deputy Clerk)

United States District Court
District Of Maryland
Chambers of
Ellen Lipton Hollander
District Court Judge

101 West Lombard Street
Baltimore, Maryland 21201
410-962-0742

June 4, 2015
MEMORANDUM TO COUNSEL
Re:

Liberty Marina Limited Partnership et al. v. Hanover Insurance Company
Civil Action No. ELH-14-2595

Dear Counsel:
As you know, plaintiffs Liberty Marina Limited Partnership (“Liberty Marina”) and
Liberty Yacht Club, Inc. (“Liberty Yacht Club”) filed suit in the Circuit Court for Anne Arundel
County against defendant Hanover Insurance Company (“Hanover”), see ECF 2 (“Complaint”),
to recover for damages to a marina in Edgewater, Maryland, pursuant to an insurance policy
issued by Hanover. Id. ¶ 1. In particular, the Complaint includes three counts: Breach of
Contract (Count I); Lack of Good Faith (Count II); and “Declaratory Judgment Appraisal”
(Count III). Id. ¶¶ 25-51.
Defendant removed the case to this Court based on diversity of citizenship. See 28
U.S.C. § 1332(a); ECF 1. Defendant also filed a “Motion to Dismiss” (ECF 12, “Motion to
Dismiss”), supported by a memorandum of law (ECF 12-1, “Def. Memo.”) and three exhibits
(ECF 12-2 through ECF 12-4). In particular, defendant represented that ECF 12-2, the “Marine
Schedule of Coverages”, and ECF 12-3, the “Commercial Marina Conditions”, are part of the
insurance policy at issue in this case (ECF 12-2 and ECF 12-3, collectively, “First Policy”).1 See
ECF 12-1 ¶¶ 3, 7, Def. Memo.
In the Motion to Dismiss, defendant argued, inter alia, that this Court lacks subject
matter jurisdiction over the claims in plaintiffs’ Complaint because the claims are not ripe. ECF
12-1 at 4, Def. Memo. Defendant contended that coverage plaintiffs seek under the operative
insurance policy is “conditioned upon complete repair or replacement of the covered property.”
Id. at 8. In defendant’s view, because plaintiffs admit that repairs to the damaged property have
not been completed, see id. at 7, plaintiffs’ claims are “not ripe for judicial determination.” Id. at
4.
Plaintiffs opposed the Motion to Dismiss (ECF 14, “Opposition”), supported by ten
exhibits. See ECF 14-1 through ECF 14-10.
Defendant replied (ECF 17, “Reply”). Defendant attached to its Reply a new, allegedly
1

The third exhibit submitted by defendant is a letter from James W. Wood, Executive
General Adjuster for Hanover, dated June 20, 2014. See ECF 12-4.

complete and operative insurance policy (ECF 17-1, “Second Policy”), 176 pages in length.
Notably, with respect to several of the schedules at issue in this case, there appeared to be
material differences between the First Policy and the Second Policy submitted by defendant. See
ECF 17-1; ECF 12-2; ECF 12-3. Moreover, defendant argued that the Second Policy controls.
ECF 17 at 1, Reply. In a surreply (ECF 28, “Surreply”), filed with leave of court (ECF 27),
plaintiffs disputed the authenticity of the Second Policy (ECF 28 at 3, Surreply), and insisted the
First Policy governs. Id. at 5.
In a Memorandum to Counsel dated March 2, 2015 (ECF 35), I denied defendant’s
Motion to Dismiss. There, I explained that a disposition as to defendant’s Motion to Dismiss
would be premature because the parties did not agree on the threshold question of which of the
two policies submitted by defendant should govern. ECF 35 at 2. In view of this dispute and the
uncertainty as to which policy applies here, I denied defendant’s Motion to Dismiss (ECF 12),
without prejudice, and permitted the parties to engage in discovery. ECF 35 at 4.
Currently pending is plaintiff’s “Motion to Remand” (ECF 15, “Motion to Remand”, or
“Motion”), supported by a memorandum of law (ECF 15-1, “Remand Memo.”). The Motion to
Remand was filed on September 3, 2014, before the Motion to Dismiss was fully briefed. In the
Motion to Remand, plaintiffs ask that in the event the Court finds “that there is a lack of subject
matter jurisdiction in accordance with the [Motion to Dismiss] filed by Hanover Insurance
Company,” the Court should remand the case to the Circuit Court for Anne Arundel County.
ECF 15 at 1, Motion to Remand. In plaintiff’s view, defendant “represented to this Court [in its
Notice of Removal] that [the Court] had subject matter jurisdiction,” but defendant “now takes
the inconsistent position that the action is not ripe and that this court lacks subject matter
jurisdiction.” ECF 15-1 at 1, Remand Memo. In other words, plaintiff argues defendant should
not be able to remove the case and then argue in its Motion to Dismiss that the Court lacks
subject matter jurisdiction.
Defendant opposes the Motion to Remand and insists that it did not take inconsistent
positions. ECF 16. On the one hand, it maintains that the Court has original jurisdiction over the
case on the basis of diversity, rendering removal proper. Id. at 2-3. Nonetheless, according to
defendant, “[u]pon effectuating removal, Hanover is now entitled to assert any merits-based
defense by motion pursuant to Rule 12(b).” Id. at 3. In its view, removing the case on the basis
of diversity did not foreclose subsequent argument that the case is not ripe for disposition. Id.
No hearing is necessary to resolve the Motion. See Local Rule 105.6.
The Court has not yet determined which insurance policy applies here. Nonetheless,
even if, as defendant suggests, the governing policy conditions all coverage “upon complete
repair or replacement of the covered property,” and that plaintiff’s claim is not ripe for
disposition, so as to warrant dismissal, this ruling would not support a remand. ECF 12-1 at 8,
Def. Memo.
As noted, defendant removed the case to federal court on the basis of diversity.
“Congress . . . has granted district courts original jurisdiction in civil actions between citizens of
different States, between U.S. citizens and foreign citizens, or by foreign states against U.S.

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citizens,” so long as the amount in controversy exceeds $75,000. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552; see 28 U.S.C. § 1332. This so-called diversity
jurisdiction “requires complete diversity among parties, meaning that the citizenship of every
plaintiff must be different from the citizenship of every defendant.” Cent. W. Virginia Energy
Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011); see Strawbridge v.
Curtiss, 7 U.S. 267 (1806).
Here, plaintiff does not challenge the existence of diversity jurisdiction. Moreover, if the
suit is not ripe in federal court for the reasons stated, it would not be ripe in state court, either.
Accordingly, the Motion to Remand (ECF 15) is denied, without prejudice.
Despite the informal nature of this Memorandum, it is an Order of the Court and the
Clerk is directed to docket it as such.
Very truly yours,
/s/
Ellen Lipton Hollander
United States District Judge

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