Bowie & Jensen, LLC v. Tidal Logistics, LLC et al
MEMORANDUM AND ORDER denying 38 Motion to Remand to State Court; and directing the United States to promptly arrange a case planning conference with all parties. Signed by Judge Marvin J. Garbis on 6/23/2017. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BOWIE & JENSEN, LLC
* CIVIL ACTION NO. MJG-17-22
TIDAL LOGISTICS, LLC, et al.
MEMORANDUM AND ORDER RE: REMAND
The Court has before it Defendant, Shearer Logistics, LLC’s
Motion to Remand [ECF No. 38].
The Court finds that a hearing
On July 18, 2016, Plaintiff Bowie & Jensen, LLC, a
Baltimore-based law firm, filed the Complaint [ECF Nos. 2 & 18]
in the Circuit Court for Howard County, Maryland as Case No.
Plaintiff, acting as escrow agent for the parties
to a real estate transaction, sought to pay to the Clerk of the
State Court the sum of $84,521.82 and to have the Court
determine all claims, including those of the Internal Revenue
Service and the Maryland Comptroller1 that may be asserted with
regard to these funds.
The Complaint erroneously named the
party asserting the federal tax claims at issue as “the Internal
As stated in the Comptroller of Maryland’s Response [ECF
No. 39], the Comptroller now makes no claim against the funds at
Revenue Service” rather than correctly as “the United States of
The Complaint was not served on the United States and may
not have been served properly on the Internal Revenue Service.
Neither the United States nor the Internal Revenue Service filed
any response to the Complaint in the State Court.
December 28, 2016, the State Court Ordered [ECF No. 10-4] that
Shearer (and not the Internal Revenue Service) was entitled to
the funds at issue.
On January 5, 2017, the United States filed the Notice of
Removal [ECF No. 1] stating therein that it would promptly file
a copy of the Notice of Removal in the state court. On February
7, 2017, Defendant Shearer Logistics filed the instant motion
seeking remand of the case to state court. Shearer contends that
the federal tax lien does not reach the funds at issue and that
the Notice of Removal is ineffective.
The United States
contends that there is an existing federal tax lien that does
give it the ability to collect the funds at issue.
Procedurally, the United States contends that the Notice of
Removal was effective when filed because it was not filed more
than thirty days after it was served with the Complaint since it
never has been properly served.
There is no doubt that Plaintiff erroneously named the
Internal Revenue Service rather than the United States as the
defendant who would be asserting rights under the federal tax
lien at issue.
Moco Investments, Inc. v. United States, 362 F.
App’x 305, 307 n.2 (3d Cir. 2010) (noting that in a suit
disputing the validity of a federal tax lien, “the United States
alone is the proper defendant,” not the Internal Revenue
In cases in which a plaintiff has sued the Internal
Revenue Service rather than the United States, the United States
commonly is substituted as the correct defendant.
instant case, the United States was not served with the
Complaint prior to the state court’s December 28, 2015 decision.
By January 5, 2017, the United States was aware of the existence
of the instant case and sought, by the Notice of Removal, to
effectively substitute itself for the Internal Revenue Service
as the proper defendant and remove the case to federal district
Neither side has presented, and the Court has not found, an
authority directly addressing the issue here presented: that is,
whether the United States – without its being named as a
defendant by a plaintiff or substituted for the Internal Revenue
Service by Court order - may act as a party and remove the case
to federal district court. Put simply, the question presented is
whether the United States can substitute itself for the Internal
Revenue Service as a defendant and act as a defendant without
the court presiding over the case formally approving its status
as a party. The Government has, however, provided citations to
authorities as samples of cases in which “Courts have routinely
allowed the United States, as the real party in interest, to
remove state court suits erroneously naming only a federal
agency or an employee of an agency as a defendant.”
Br. [ECF No. 51-1] at 2.
The Court – by virtue of the absence of precedent
addressing the issue presented - must predict what the United
States Court of Appeals for the Fourth Circuit will hold if and
when presented with the issue. See Progressive Se. Ins. Co. v.
McLeod, 489 F. App’x 669, 671 (4th Cir. 2012)(noting that in the
absence of controlling precedent, a federal court’s role is to
predict how the highest state court would rule and issue a
decision consistent with that prediction); Mays v. BNSF Ry. Co.,
974 F. Supp. 2d 1166, 1173 (N.D. Ill. 2013)(predicting what the
Seventh Circuit would reasonably rule if presented with the
The Court predicts that, if presented with the issue, the
Fourth Circuit will decide that the United States properly
removed the instant case to the District of Maryland.
the Notice of Removal in this Court as in the state court, the
United States substituted itself as the proper defendant
improperly named by Plaintiff as “Internal Revenue Service.”
Even if Plaintiff has not yet properly served the Internal
Revenue Service or the United States, it has identified as a
defendant the party who would seek to assert federal tax lien
These rights could properly be asserted by the United
States and not by the Internal Revenue Service.
Complaint plainly erroneously named the Internal Revenue Service
rather than the United States as the party defendant.
Certainly, the United States could have proceeded to have
the state court issue an Order effecting its replacement of the
Internal Revenue Service as a defendant.
However, the Court
predicts that the Fourth Circuit will not – in the instant case
– require that procedure to remand the case for further
proceedings in the state court.
Rather, the Court predicts that
if presented with the issue, the appellate court will accept the
United States’ filing of the Notice of Removal to constitute a
valid action substituting the United States as a party defendant
and will accept the Notice of Removal as the valid action of the
United States as a defendant removing the case to federal court.
For the foregoing reasons:
Defendant, Shearer Logistics, LLC’s Motion to
Remand [ECF No. 38] is DENIED.
The United States shall promptly arrange a case
planning conference with all parties.
SO ORDERED, this Friday, June 23, 2017.
Marvin J. Garbis
United States District Judge
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