Medish et al v. The Johns Hopkins Health System Corporation et al
MEMORANDUM. Signed by Judge James K. Bredar on 9/19/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VADIM A. MEDISH, et al.
THE JOHNS HOPKINS HEALTH
SYSTEM CORPORATION, et al.
CIVIL NO. JKB-17-1448
Plaintiffs Vadim A. Medish, Mark C. Medish and Sue Edwards brought this suit against
Defendants Johns Hopkins Health System Corporation, Johns Hopkins Hospital, and Subash
Chandra, M.D., in the Circuit Court for the City of Baltimore on May 23, 2017. (Compl., ECF
No. 2.) Defendant Dr. Chandra removed the case to this Court two days later, on the basis of
diversity of citizenship (Notice of Filing Removal, ECF No. 3), and he was voluntarily dismissed
by Plaintiffs on June 26, 2017. Before the Court is Plaintiffs‟ Motion to Remand (ECF No. 5)
and Defendants Motion for Leave to File a Surreply (ECF No. 16). No hearing is necessary to
resolve the matter. See Local Rule 105.6. For the reasons set forth in this Memorandum, by
accompanying order, Defendants‟ Motion for Leave to File a Surreply will be GRANTED and
Plaintiffs‟ Motion to Remand will be GRANTED.
Plaintiff Vadim Medish suffered a series of medical problems over the course of several
months in early 2013, including a cardiac arrest that resulted in “debilitating brain damage.”
(Compl. ¶¶ 20-48, ECF No. 2.) For roughly three months Vadim Medish was treated at Johns
Hopkins Hospital in Baltimore, Maryland. (See Compl. ¶¶ 22, 48.) Nearly four years later, on
May 23, 2017, Vadim Medish and his parents brought suit against the Johns Hopkins Health
System Corporation and the Johns Hopkins Hospital (collectively “JHH Defendants), and one of
Vadim Medish‟s treating physicians, Dr. Subash Chandra, alleging Medical Negligence.
(Compl. ¶¶ 7-19, 49; Mem. Mot. Remand 2, ECF No. 5-1.) Two days later, on the same day that
the Clerk of the Baltimore City Circuit Court issued Plaintiffs‟ summonses, and therefore before
the Plaintiff had any reasonable opportunity to serve any Defendant, Defendant Dr. Chandra
removed the case to this federal court. (Mem. Mot. Remand 2; Notice of Removal, ECF No. 3.).
For the purpose of determining diversity jurisdiction, the citizenship of the parties at the time of
removal was as follows: Plaintiffs were citizens of the District of Columbia, JHH Defendants
were citizens of Maryland, and Dr. Chandra was a citizen of both India and Iowa. (Compl. ¶¶ 79, 11; Aff. of Def. Subash Chandra, M.D., ECF No. 8-1.) In other words, out-of-state Plaintiffs
sued both in-state Defendants and an out-of-state Defendant. Prior to any party being served, the
out-of-state Defendant removed.
On June 2, 2017, eight days after Defendant Dr. Chandra removed, Plaintiffs filed a
motion to remand (ECF No. 5), contending that the “forum defendant” rule prohibited Dr.
On a motion to remand, “federal courts consider the facts disclosed on the record as a whole.” Capitol Cake Co. v.
Lloyd’s Underwriters, 453 F. Supp. 1156, 1160 n.5 (D. Md. 1978) (citing Charles Alan Wright & Arthur R. Miller,
14C Fed. Prac. & Proc. Juris §3734 (1976); see also Charles Alan Wright & Arthur R. Miller, 14C Fed. Prac. &
Proc. Juris §3734 (4th ed.) (“[I]n practice, the federal courts usually do not limit their inquiry to the face of the
plaintiff‟s complaint, but rather consider the facts disclosed in the record of the case as a whole, in determining the
propriety of removal.”).
Chandra from removing the case. (See Mem. Mot. Remand 3.) Defendant Dr. Chandra filed a
response in opposition to that motion on June 13 (ECF No. 8), and roughly two weeks later the
Plaintiffs voluntarily dismissed Defendant Dr. Chandra (ECF No. 11), leaving only forum
defendants in the case. A few days later, on June 27, JHH Defendants first made their voices
heard by filing a response in opposition to the Plaintiffs‟ motion to remand (ECF No. 13), in
which they simply adopted Dr. Chandra‟s argument. Plaintiffs replied that same day, reiterating
that the forum defendant rule barred Dr. Chandra‟s removal of the case, but also raising for the
first time the argument that remand was proper because Dr. Chandra had been dismissed as a
party, thus leaving the JHH Defendants, all citizens of the forum state, as the sole Defendants in
the case. (Rep. Mot. Remand, ECF No. 14.) Before the Court are Plaintiffs‟ Motion to Remand
(ECF No. 5) and Defendants‟ Motion for Leave to File a Surreply (ECF No. 16).
An action brought in a state court may be removed only if the district court would have
had original jurisdiction over the action. See 28 U.S.C. § 1441(a). “The burden of establishing
federal jurisdiction is placed upon the party seeking removal.” Mulcahey v. Columbia Organic
Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Federal courts “must strictly construe removal
jurisdiction,” because it “raises significant federalism concerns.” Id. Congress has the “clear
intention to restrict removal and to resolve all doubts about the propriety of removal in favor of
retained state court jurisdiction.” Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.
a. Motion for Leave to File Surreply
“Surreplies are highly disfavored in this District,” and may only be filed with the Court‟s
permission. Roach v. Navient Solutions, Inc., 165 F. Supp. 3d 343, 351 (D. Md. 2015) (citing
Local Rule 105.2(a)). Surreplies, however, “may be permitted when the moving party would be
unable to contest matters presented to the court for the first time in the opposing party‟s reply.”
Khoury v. Meserve, 268 F. Supp. 2d 600, 605 (D. Md. 2003).
Contrary to the Plaintiffs‟ contention that they “merely responded to Defendants‟ joint
opposition” in their reply (Pls. Opp‟n to Def.‟s Mot. for Leave to File Surreply 4, ECF No. 17),
Plaintiffs in fact raised, for the first time, the argument that this case should be remanded because
only forum defendants remain. (See Reply Pls. Mot. Remand 2.) Therefore, because Defendants
have not had an opportunity to address this argument, the Court will GRANT Defendants‟
Motion for Leave to File a Surreply. The Defendants attached their proposed surreply to their
motion (ECF No. 16-1), and the Court has read it in full and considered the arguments contained
therein. The Clerk will be directed to docket the surreply.
b. Motion to Remand
Plaintiffs make two primary arguments in support of their motion to remand. Plaintiffs
contend that the case should be remanded to state court because the only remaining Defendants
are citizens of Maryland, the forum state. Plaintiffs also contend that removal was initially
improper because removal in a case involving any forum state defendants violates the forum
defendant rule. The Court will address each argument in turn.
i. Dismissal of Defendant Dr. Chandra
Plaintiffs contend that remand should be granted because the only remaining Defendants
in this case are citizens of Maryland.
Plaintiffs‟ argument rests on “the policy goals
underpinning the American civil justice system.”
(Reply Pls. Mot. Remand 3.)
specifically, the policy goal that “defendants should be answerable for torts” in their home states.
(Id.) As a general proposition, the Plaintiffs are correct: defendants are generally not allowed to
escape jurisdiction in their home states by availing themselves of federal diversity jurisdiction.
See Part b.ii, infra (discussing the forum defendant rule). Plaintiffs here, however, fail to address
the specific posture of this case.
Jurisdiction “depends upon the state of things at the time . . . the action [is] brought.”
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v.
Torrance, 9 Wheat. 537, 539 (1824)). At the time this action was removed to federal court the
Court had jurisdiction. The requirements of the federal diversity statute were indisputably met.
Plaintiffs and Defendants were “citizens of different states” and the “matter in controversy
exceed[ed] the sum or value of $75,000.” 28 U.S.C. § 1332(a). In regard to jurisdiction, nothing
has changed to this moment, even with the dismissal of Dr. Chandra. The remaining parties are
still “citizens of different states,” and the “matter in controversy [still] exceeds the sum or value
of $75,000.” The Plaintiffs fail to cite any authority standing for the proposition that once a
federal court has subject matter jurisdiction, that court nonetheless must remand a case to state
court, for want of jurisdiction, if at any subsequent time all of the remaining defendants are
citizens of the forum state. As far as the Court can determine, there is none. Accordingly, the
Court has jurisdiction. See Devore v. Transport Technology Corp., 914 F. Supp. 355, 357 (W.D.
Mo. 1996) (“Nor should there be any argument that [the forum defendant rule] works
retroactively after removal.”).
What Plaintiffs are in fact challenging in their motion to remand is not the current
jurisdiction of the Court, but rather the propriety of this case‟s removal.
That this is the
gravamen of Plaintiffs‟ argument is clear from the authority they cite in their reply. The two
cases that Plaintiffs cite for the proposition that the Court should remand the case now, because
only forum defendants remain, each concerns only the question of whether forum defendants can
remove the case. (See Reply Mot. Remand 2-3 (citing Reimold v. Gokaslan, 110 F. Supp. 3d 641
(D. Md. 2015); Philips Construction, LLC v. Daniels Law Firm, PLLC, 93 F. Supp. 3d 544
The Court has jurisdiction now because removal in compliance with the forum defendant
rule is a procedural hurdle and not a jurisdictional bar. Neither the Supreme Court nor the Fourth
Circuit has provided guidance on this distinction, but the clear majority of circuits that have
addressed the issue has found that “removal by a forum defendant is a procedural defect.”
Almutairi v. Johns Hopkins Health System Corporation, Civ. No. ELH-15-2864, 2016 WL
97835 at *5 (D. Md. Jan. 8, 2016) (quoting Councell v. Homer Laughlin China Co., 823 F. Supp.
2d 370, 378 (N.D.W.Va. 2011) (citing cases)).
Legislative history suggests that this was
Congress‟s understanding. See Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir.
2006).2 Furthermore, treating the forum defendant rule as procedural is in line with its purpose.
See id. at 940. Plaintiffs are generally able to choose their preferred forum, and the forum
Prior to 1996, under the removal statute parties could not move to remand a case more than thirty days after the
filing of a notice of removal if remand was based on a “defect in removal procedure.” Lively, 456 F.3d at 939
(quoting Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, §1016(c)(1). In 1996,
Congress clarified that parties could not move to remand after thirty days “on the basis of any defect other than lack
of subject matter jurisdiction.” Id. (quoting Pub. L. No. 104-219, §1) (alteration in the original). This change
suggests that “Congress sought to ensure that even the „more substantive‟ removal defects, such as [forum defendant
rule violations] were subject to the 30-day time limit,” and, by inference, not a defect in subject matter jurisdiction.
Id. (citing Snapper, Inc. v. Redan, 171 F.3d 1249, 1257-58 (11th Cir. 1999).
defendant rule serves to prevent an in-state defendant, who does not face regional discrimination
from their state courts, from stymieing a plaintiff‟s choice of a state court forum.
procedural bar, the forum defendant rule is waivable, which leaves the choice of forum in the
out-of-state plaintiff‟s hands. If a plaintiff wishes that the suit remain in state court he can move
to remand within thirty days. See 28 U.S.C. § 1447(c) (motion to remand “on the basis of any
defect other than lack of subject matter jurisdiction must be made within 30 days after the filing
of the notice of removal”). If a plaintiff is content to proceed in federal court, he simply chooses
not to oppose the removal.
The forum defendant rule is procedural and not jurisdictional, and thus the presence of
solely forum defendants in this case does not defeat jurisdiction. Jurisdiction was proper when
the case was filed in federal court and it remains so. Still, violation of the forum defendant rule
may be grounds for remand if the plaintiff has not waived his objection. Well within the thirty
days required by the statute, Plaintiffs challenged procedural removal defects, and thus the Court
turns to a consideration of whether the case should be remanded on the ground that then
Defendant Dr. Chandra improperly removed the case in violation of the forum defendant rule.
ii. The forum defendant rule and pre-service removal
The forum defendant rule is a logical addendum to the diversity jurisdiction statute given
the purpose of diversity jurisdiction. The basic purpose of diversity jurisdiction is to “give a
citizen of [a foreign] state access to an unbiased court to protect him from parochialism.” Ziady
v. Curley, 396 F.2d 873, 875 (4th Cir. 1968). When the defendant is a citizen of the state in
which the action is brought, i.e. a forum defendant, “there is no need to protect [them] from local
prejudice.” Reimold, 110 F. Supp. 3d at 642. The forum defendant rule therefore aims to prevent
a forum defendant from removing a case to federal court. See id. at 642-43.
The statutory language somewhat complicates this picture of the forum defendant rule.
The relevant part of the statute states, in full:
A civil action otherwise removable solely on the basis of the jurisdiction
under section 1332(a) of this title may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of the State in which
such action is brought.
28. U.S.C. § 1441(b)(2) (emphasis added). Defendants contend that because none of the parties
were “properly . . . served” at the time Defendant Dr. Chandra removed, the forum defendant
rule, by its plain language, does not apply here.
The purpose of the “properly joined and served” language is to prevent gamesmanship by
Plaintiffs. See Reimold, 110 F. Supp. 3d at 643. The language is designed “to prevent a plaintiff
from blocking removal by joining as a defendant a resident party against whom [the plaintiff]
does not intend to proceed, and whom [the plaintiff] does not even serve.” Goodwin v. Reynolds,
757 F.3d 1216, 1221 (11th Cir. 2014) (quoting Sullivan v. Novartis Pharm. Corp., 575 F. Supp.
2d 640, 644 (D.N.J. 2008)) (alteration in the original).
Here, there is nothing to indicate that the Plaintiffs were engaged in such gamesmanship.
First, the JHH Defendants -- the forum defendants -- were not inconsequential parties that
Plaintiffs joined simply to defeat removal. The complaint makes clear that the Plaintiffs see the
JHH Defendants as major players in this matter. Further, if the Plaintiffs included the JHH
Defendants only to ensure that Dr. Chandra would be required to litigate in state court then they
presumably would not have voluntarily dismissed Dr. Chandra, only to continue litigation and
seek to remand this case to state court, with the JHH Defendants as the sole defendants. Second,
there is no evidence that Plaintiffs sat on their hands when it came to serving any party. In
several other cases dealing with the question of pre-service removal, much time had elapsed,
during which service reasonably could have occurred, before defendants removed. See, e.g.,
Caillouet v. Annapolis Yacht Company, LLC, Civ. No. ELH-16-1698, 2016 WL 8737484 at *1
(D. Md. Aug. 5, 2016) (defendant filed pre-service notice of removal forty-two days after
Plaintiff filed their complaint in state court); Robertson v. Iuliano, Civ. No. RDB-10-1319, 2011
WL 453618 at *1 (D. Md. Feb. 4, 2011) (defendant filed pre-service notice of removal fifty-two
days after Plaintiff had filed their complaint in state court). Here, Defendant Dr. Chandra
removed the case just two days after the lawsuit was filed and on the very day that the state court
issued the Plaintiffs‟ summonses. Plaintiffs probably could not have served either party prior to
the case being removed. See Reimold, 110 F. Supp. 3d 642-43 (holding that pre-service removal
was improper when forum defendant removed case four days prior to the plaintiff receiving their
Plaintiffs‟ inability to serve either Dr. Chandra or the JHH Defendants prior to removal
is, in fact, at the crux of this case, because it is demonstrative of the gamesmanship that matters
here – Defendant Dr. Chandra‟s gamesmanship. And the question that is posed is whether the
JHH defendants should benefit from the former codefendant‟s gamesmanship.
There is no doubt that if Plaintiffs had received their summonses and served the forum
Defendants, the case could not thereafter have been removed under Section 1441(b)(2). But
because Defendant Dr. Chandra filed a notice of removal so quickly, before Plaintiffs had a
reasonable chance to serve process, the JHH Defendants implicitly suggest that they should be
permitted to take advantage of a loophole in the forum defendant rule and thereby avoid their
own state‟s forum. Such a result, if not remedied would incentivize “docket trolling,” see
Calliouet, 2016 WL 8737484 at *7, would cut against the proposition that plaintiffs are generally
There appears to be some further delay in service in this case. It appears that the JHH Defendants have still not
been served. However, given that Defendant Dr. Chandra removed the case before Plaintiffs had any reasonable
opportunity to serve process on any party, Plaintiffs may reasonably be waiting to settle the question of proper
jurisdiction and forum before serving process. Presumably, the only summonses they hold are those issued by the
state court, a court currently lacking jurisdiction in the matter.
permitted to choose their preferred forum, and would start to move these proceedings into the
zone of “absurdity.” See Oxendine v. Merck. & Co., 236 F. Supp. 2d 517, 526 (D. Md. 2002)
(“[R]emovability can not [sic] rationally turn on the timing or sequence of service of process.”).4
Admittedly, the judges of this Court do not speak with one voice on this difficult question
relating to pre-service removal. Compare Caillouet, 2016 WL 8737484 (granting remand when
forum defendant was joined and case was removed prior to service); Reimold, 110 F. Supp. 3d
641 (same); Oxendine v. Merck and Co., Inc., 236 F. Supp. 2d 517 (2002) (same) with Al-Ameri
v. The Johns Hopkins Hospital, Civ. No. GLR-15-1163 (D. Md. June 24, 2015) (ECF No. 23)
(denying remand when forum defendant was joined and case was removed prior to service);
Robertson, 2011 WL 453618 (same); Clawson v. FedEx Ground Package System, Inc., 451 F.
Supp. 2d 731 (2006) (stating that a non-resident defendant can remove even if a resident
defendant is joined, so long as the non-resident defendant removes prior to service). The
undersigned today sides with those decisions reading Section 1441(b)(2) more functionally and it
does so for essentially the same reasons Judge Hollander identified in Caillouet v. Annapolis
Yacht Company: this provision was designed to prevent gamesmanship, and a contrary reading
would incentivize it. See 2016 WL 8737484 at *6-7 (discussing Goodwin, 757 F.3d 1216).
Furthermore, because Plaintiff could not, practically speaking, have served any Defendant prior
to removal, finding for the Defendants in this case would mean that, so long as defendants stay
on top of the docket, the forum defendant rule would have no effect in practice. Out-of-state
Defendants argue that the Court must retain jurisdiction or else violate the Fourth Circuit‟s “plain meaning rule”
which holds that courts must follow the plain meaning of a statute unless the result is absurd or contrary to clear
legislative intent. (See Def. Dr. Chandra‟s Opp‟n to Pls.‟ Mot. Remand 7-8, ECF No. 8, adopted by Def. JHH
Opp‟n to Pls.‟ Mot. to Remand ¶ 3, ECF No. 13, (citing Hillman v. IRS, 263 F.3d 338, 342 (4th Cir. 2001)).) The
Court does take the plain statutory language seriously, see Hawkins v. Kilberg, 165 F. Supp. 3d 386, 390 (D. Md.
2016), but finds that a literal reading here would cause a result that both tends toward absurdity and conflicts with
what Congress intended by their inclusion of the “properly joined and served” language in the forum defendant
provision. Accordingly, on these extreme facts, a deviation from the most literal meaning of the statute is
plaintiffs could effectively be precluded from suing defendants in the defendants‟ home state
courts. The propriety of retaining a case in federal court jurisdiction cannot hinge on something
as irrelevant to the purpose of the forum defendant rule as winning a race. See Sullivan v.
Novartis Pharmaceuticals Corp., 575 F. Supp. 2d 640, 646 (D.N.J. 2008).
To the extent that this case is distinguishable from other cases that have held to the
contrary, it is so in that the gamesmanship of the removing defendant in the instant matter left the
plaintiff powerless to keep the matter in state court. In Robertson v. Iuliano, the Court was
presented with a set of facts very similar to those at bar. An out-of-state defendant physician
removed a case prior to being served even though an in-state defendant hospital had been joined
(but also not served). Robertson, 2011 WL 453618 at *1. The out-of-state defendant physician,
however, filed a notice of removal fifty-two days after Plaintiff filed his action in state court. Id.
Here, only two days passed before the out-of-state Defendant removed, the exact amount of time
it took the state court to issue summonses. Defendants note that this case is more like Robertson
than Reimold, another case in this District that held against pre-service removal, because, unlike
in Reimold, the Defendants at the time of pre-service removal were not all citizens of Maryland.
But “this is a distinction without a difference. . . . There is no indication that plaintiff . . . added a
resident defendant for the sole purpose of frustrating removal.” Caillouet, 2016 WL 8737484 at
*5 (responding to the same argument).
Finally, two more points are instructive: Congress‟s desire that courts lean in favor of
retained state court jurisdiction, and the stringent standard of review for motions to remand set
down in the Fourth Circuit. See Mulcahey, 29 F.3d at 151; Marshall, 6 F.3d at 232. The Court
strictly construes the removal statutes in favor of state court jurisdiction, and “[s]ince the
removal statutes are strictly construed, the better view would seem to be that local defendants
should not be able to avoid the statutory bar against such removal in diversity actions by
volunteering an appearance before formal service.” James M. Wagstaffe, Federal Civil Procedure
Before Trial Ch. 2D, § 2:2322.4 (Nat‟l Ed. 2017).5
In sum, the purpose of the forum defendant rule is to prevent forum defendants from
avoiding the jurisdiction of their own state courts, and the purpose of the “properly joined and
served” language in Section 1441(b)(2) is to prevent gamesmanship. The Court‟s holding today,
in which it affirmatively pulls back from a strict, plain reading of the relevant provision, properly
accomplishes both of these purposes.
Plaintiffs presented new arguments in their Reply in Support of their Motion to Remand
and therefore Defendants‟ Motion for Leave to File a Surreply will be granted. This case was
removed in violation of the procedural removal requirement of 28 U.S.C. § 1441(b)(2) and the
case should be remanded. Therefore, Plaintiffs‟ Motion for Remand will be granted. A separate
order granting these Motions will be entered.
DATED this 19th day of September, 2017.
BY THE COURT:
James K. Bredar
United States District Judge
The Court appreciates that here the “local defendants”, i.e. the JHH Defendants, did not, themselves, “avoid the
statutory bar . . . by volunteering an appearance before formal service.” But the local defendants are attempting to
avoid state court jurisdiction on the premise that a defendant “volunteer[ed] an appearance before formal service.”
Ultimately, under the law, there is no difference. See Caillouet, 2016 WL 8737484 at *5.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?