Flora v. Everest Wealth Management, Inc. et al
MEMORANDUM. Signed by Judge Ellen L. Hollander on 9/26/2017. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. ELH-17-1621
EVEREST WEALTH MANAGEMENT,
INC., et al
Sarah Flora, plaintiff, filed suit in the Circuit Court for Baltimore County on May 4, 2017
(ECF 2), which she subsequently amended. ECF 3. As amended, the suit contains multiple
claims against plaintiff‟s former employers, Everest Wealth Management, Inc. (“EWM”) and
Everest Investment Advisors, Inc. (“EIA”)1 (collectively, “Everest”), as well as several other
defendants: Philippe A. Rousseaux, Jr., Everest‟s founder and former President of EWM and
EIA; Lorena Rodriguez, Rousseaux‟s wife and an officer of EWM; and John G. Anthony, an
employee of Everest. ECF 3, ¶¶ 1-8. Flora alleges that defendants failed to pay all commissions
due to her in connection with her sale of insurance products for Everest (Id. ¶¶ 19-20), and that
Everest ultimately fired her to avoid paying plaintiff what she had earned. Id. ¶ 57.
In particular, plaintiff alleges a violation of the Maryland Wage Payment and Collection
Law, Md. Code (2016 Repl. Vol.), §§ 3-501 et seq. of the Labor and Employment Article
(“L.E.”) (Count I, id. ¶¶ 15-26); Violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (“FLSA”) (Count II, ¶¶ 27-33); Breach of Contract (Count III, ECF 3, ¶¶ 34-41); Fraudulent
Misrepresentation (Count IV, id. ¶¶ 42-49); Misrepresentation or Concealment (Count V, id.
EIA is now a defunct entity. ECF 3, ¶ 2.
¶¶ 50-55); Wrongful Discharge (Count VI, id. ¶¶ 56-64); Quantum Meruit (Count VII, id. ¶¶ 6568); and Unjust Enrichment (Count VIII, id. ¶¶ 69-70). Further, plaintiff seeks a declaratory
judgment nullifying her non-compete agreement with Everest (Count IX, id. ¶¶ 71-77).
On the basis of the FLSA claim, defendants timely removed the case to federal court on
June 14, 2017, pursuant to 28 U.S.C. §§ 1331, 1367, and 1441. ECF 1 (“Notice of Removal”),
¶¶ 8-9. On June 20, 2017, defendants answered the complaint and asserted five counterclaims.
ECF 14 (“Answer and Counterclaims”) at 17-21. The counterclaims present questions under
Maryland law. Id.
Now pending are plaintiff‟s Motion to Remand (ECF 18) and Motion for Leave to
Voluntarily Dismiss with Prejudice Count II (ECF 19, “Motion to Dismiss”). Defendant opposes
ECF 24 (“Opposition to Remand”); ECF 25 (“Opposition to Dismissal”).
Plaintiff has replied to the Opposition to Remand. ECF 26 (“Reply”). As discussed, infra, the
parties have also submitted exhibits.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons
that follow, I shall grant both motions.
Plaintiff was hired by Everest in December 2013 to sell insurance products. ECF 3, ¶¶ 5,
6, 16. As part of her employment, she was entitled to a commission from her sales. Id. ¶ 16.
According to plaintiff, Everest owes her more than $90,000 in unpaid commissions. Id. ¶ 20.
Plaintiff also asserts that over the course of her employment, Everest reduced her commission
percentage and her benefits, in contravention of Everest‟s original representations. Id. ¶¶ 46-48.
Based on the procedural posture of the case, I must assume the truth of any well pleaded
factual allegations in the complaint. See, e.g., E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011).
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On March 6, 2017, Everest fired plaintiff (id. ¶ 7), which plaintiff avers was “intentionally
calculated to circumvent the Wage Payment Law and deprive Ms. Flora of substantial
compensation.” Id. ¶ 61.
Plaintiff has moved voluntarily to dismiss, with prejudice, the FLSA claim in Count II.
ECF 19 at 2. She also seeks a remand to the Circuit Court for Baltimore County, on either of
two theories: (1) that her employment agreement with defendants contains a forum selection
clause providing for venue in the Circuit Court for Baltimore County (ECF 18-1 at 4); and (2) if
the FLSA claim is dismissed, this Court should exercise its discretion to remand the remaining
claims and counterclaims to State court, as there is no basis for federal jurisdiction. Id. at 5.
In response, defendants argue: (1) the agreement containing the forum selection clause
pertains only to plaintiff‟s non-compete agreement with defendants, and not other employment
matters (ECF 24 at 2); (2) the forum selection clause in the agreement should not be read to refer
exclusively to a state court geographically located in Baltimore County (id. at 6-7); (3) this
Court should not allow plaintiff to dismiss her federal claim and remand because doing so would
reward forum manipulation (ECF 25 at 2); (4) even if plaintiff‟s FLSA claim were dismissed,
this Court retains jurisdiction on the basis of diversity of citizenship (ECF 24 at 3-4); and (5)
under 28 U.S.C. § 1367(c), this Court may exercise supplemental jurisdiction as to the various
claims, notwithstanding the forum selection clause. Id. at 7-10.
At issue here is the forum selection clause, the right of the plaintiff to dismiss her federal
claim, the jurisdictional basis for the non-federal claims and counterclaims, and the discretion of
this Court to remand the case to the Circuit Court for Baltimore County. In brief, if the forum
selection clause applies, this case should be remanded (or, technically, dismissed, see discussion
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infra). If the forum selection clause does not apply and the plaintiff may not dismiss or abandon
her federal claim, jurisdiction remains proper in this Court. If the plaintiff may dismiss or
abandon her federal claim but diversity jurisdiction exists, jurisdiction remains proper in this
Court. But, if the plaintiff may dismiss or abandon her federal claim and there is no diversity of
citizenship, this Court may remand the remaining claims to the state court at its discretion.
Because the questions of dismissal and remand can be decided without regard to the
forum selection clause, I need not consider that contention.3
A. Voluntary Dismissal
Plaintiff styles her motion to dispose of her FLSA claim as a “motion to voluntarily
dismiss with prejudice.” 4 ECF 19 at 1. In effect, the motion is more accurately characterized as
a motion to amend the complaint by abandoning the FLSA claim under Fed. R. Civ. P. 15. See
Skinner v. First Am. Bank of Virginia, 64 F.3d 659 (Table), 1995 WL 507264, at *2 (4th Cir.
1995) (“Because Rule 41 provides for the dismissal of actions, rather than claims, Rule 15 is
technically the proper vehicle to accomplish a partial dismissal.” (citation omitted)); see also
Elat v. Ngoubene, 993 F. Supp. 2d 497, 519 (D. Md. 2014) (“The proper mechanism for a
Both sides submitted a copy of a document between plaintiff and “Everest Inc.”, dated
December 23, 2013, titled “Agreement.” See ECF 3-1; ECF 24-1. In one Whereas clause, the
Agreement states: “Employee desires to give, and Employer desires to receive from Employee, a
covenant not to engage . . . in competition with, or to solicit any customer . . . .” ECF 3-1 at 3.
Further, the Agreement states, in part, ECF 3-1 at 8: “The provisions of this Agreement shall be
interpreted and enforced in accordance with the laws of the State of Maryland, venue shall lie
exclusively in Baltimore County and Employee hereby submits to the personal jurisdiction of
The federal district court in Maryland has two locations: Greenbelt and Baltimore City,
not Baltimore County.
Plaintiff requests that Count II be dismissed “conditioned upon the case being remanded
to the Circuit Court for Baltimore County.” ECF 19 at 2. Plaintiff cites no authority for her right
to set such a condition. In submitting the motion to this Court, plaintiff took the risk that the
motion would be granted.
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plaintiff to withdraw some, but not all, claims is to file a motion to amend pursuant to Fed. R.
Civ. P. 15.”); 8 Moore’s Federal Practice - Civil § 41.21 (Matthew Bender 3d ed.) (“Rule 41(a)
may not be employed to dismiss fewer than all of the claims against any particular defendant.
This is because a voluntary dismissal under Rule 41(a)(1) or (2) terminates an action, which
means the totality of all component claims, i.e., legal causes of action, asserted against a single
defendant.” (footnotes and citations omitted) (emphasis in original)).
Rule 15(a)(2) allows a party to amend a pleading with the opposing party‟s written
consent or with leave of court. The Rule instructs courts to “freely give leave when justice so
requires.” But, “leave to amend is not to be granted automatically. Disposition of a motion to
amend is within the sound discretion of the district court.” Deasy v. Hill, 833 F.2d 38, 40 (4th
Cir. 1987) (citation omitted).
In considering whether to grant leave to amend, district courts must consider several
factors: “(i) undue prejudice to opposing party, (ii) undue delay, (iii) bad faith or dilatory
motive, and (iv) futility of amendment.” Shilling v. Nw. Mut. Life Ins. Co., 423 F. Supp. 2d 513,
518 (D. Md. 2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Fourth Circuit has
“interpreted Rule 15(a) to provide that „leave to amend a pleading should be denied only when
the amendment would be prejudicial to the opposing party, there has been bad faith on the part of
the moving party, or the amendment would have been futile.‟” Laber v. Harvey, 438 F.3d 404,
426 (4th Cir. 2006) (citations omitted).
Defendants protest plaintiff‟s proposed dismissal of her FLSA claim by calling it “blatant
forum shopping.” ECF 25 at 1. Defendants do not assert that they will suffer any undue
prejudice from the dismissal of the FLSA claim itself; rather, they seem to oppose the motion
only insofar as dismissal of the federal question might lead to remand to the State court. Id. at 2.
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Although the issue of remand is related to the existence of plaintiff‟s FLSA claim, the two are
not inextricably linked.
Plaintiff filed her Motion to Dismiss within one month after defendants removed the case.
Defendants have not suggested undue delay, and clearly there is none. See Shilling, 423 F. Supp.
2d. at 519 (“Plaintiff filed his motion less than a month after Defendants removed the case and,
therefore, has not caused undue delay.”). And, simply seeking a return to State court is not
evidence of “bad faith.” See id. (“Defendants have offered no evidence that Plaintiff‟s actions in
adding and later moving to dismiss his . . . claim were prompted by any ill motive toward
Defendants, such as a desire to force them to incur expenses in the removal and remand
process.”). Notably, defendants have not posited any prejudice as a result of the proposed
dismissal. Nor have defendants alleged futility.
The complaint of “forum shopping” is more properly discussed in the context of the
Motion to Remand. I note, however, that the Fourth Circuit has observed that “the mere prospect
of the transfer of litigation to state court was an insufficient basis for denying the motion for
voluntary dismissal. „Ordinarily the mere fact that a plaintiff prefers the state courts ought not to
prevent his discontinuing his suit; one court is as good as another.‟” Davis v. USX Corp., 819
F.2d 1270, 1275 (4th Cir. 1987) (quoting Young v. Southern Pacific Co., 25 F.2d 630, 632 (2d
Cir. 1928) (Learned Hand, J., concurring)).
For these reasons, I shall construe plaintiff‟s Motion to Dismiss her FLSA claim as a
motion to amend her complaint by abandoning Count II.
Therefore, Count II is stricken.
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And, I shall grant the Motion.
B. Motion to Remand
Plaintiff moves to remand this case to State court, citing the parties‟ forum selection
clause and her motion to dismiss her FLSA claim, which is the only federal claim in the case.
Defendants oppose the Motion to Remand, contending that, in addition to the inapplicability of
the forum selection clause, the case could have been removed on the basis of diversity, and so
this Court retains jurisdiction, even without the FLSA claim.
As noted, I need not reach the
issue of the effect of the forum selection clause.
1. Diversity Jurisdiction
Under 28 U.S.C. § 1332(a)(1), federal district courts have subject matter jurisdiction over
“civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States.”
With exceptions not
applicable here, diversity jurisdiction under § 1332 “requires complete diversity among parties,
meaning that the citizenship of every plaintiff must be different from the citizenship of every
defendant.” Cent. W. Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th
Of import here, in the context of actions removed from State court, the domicile of the
parties for jurisdictional purposes is determined at the time of removal. See, e.g., Dennison v.
Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th Cir. 2008) (“[F]ederal jurisdiction [is] fixed
at the time . . . [the] notice of removal is filed.”); Higgins v. E.I. DuPont de Nemours & Co., 863
F.2d 1162, 1166 (4th Cir. 1988) (“Diversity must be established at the time of removal.”). But
see Kanzelberger v. Kanzelberger, 782 F.2d 774, 776 (7th Cir. 1986) (“[T]he required diversity
must exist both when the suit is filed—as the statute itself makes clear, see 28 U.S.C.
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§ 1441(a)—and when it is removed . . . .” (citing 14A Wright, Miller & Cooper, Federal
Practice and Procedure § 3723, at 312-14 (2d ed. 1985))).
A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of
two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are
insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “„that the
jurisdictional allegations of the complaint [are] not true.‟” Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009) (citation omitted); see also Buchanan v. Consol. Stores Corp., 125 F. Supp.
2d 730, 736 (D. Md. 2001). In a facial challenge, “the facts alleged in the complaint are taken as
true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject
matter jurisdiction.” Kerns, 585 F.3d at 192; see also Ibarra v. United States, 120 F.3d 472, 474
(4th Cir. 1997). In a factual challenge, on the other hand, “the district court is entitled to decide
disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. In
that circumstance, the court “may regard the pleadings as mere evidence on the issue and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).
Although defendants have not moved to dismiss under Rule 12(b)(1), the same principles
are at play: Defendants have invoked diversity jurisdiction, which plaintiff challenges.
Plaintiff‟s challenge is essentially a factual one, attacking defendants‟ assertion of diversity.
ECF 26 at 2-3. As such, I may consider the evidence presented by the parties with their
memoranda. Velasco, 370 F.3d at 398.
The pleadings and the exhibits show that at the time of the filing of the suit, and at the
time of removal, defendants were not completely diverse from plaintiff. Plaintiff is domiciled in
Maryland. See ECF 3 at 1. Corporations, such as EWM, are domiciled both in their place of
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incorporation and their principal place of business. Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011). Defendants contend that EWM “no longer conducts any
business in Maryland” (ECF 24 at 3), but they have offered no evidence of this assertion.
However, plaintiff submitted several exhibits dated August 21, 2017, indicating that EWM
continues to operate principally in Maryland. ECF 26-1 (a Florida Division of Corporations
record showing that EWM has its “Principal Address” in Maryland); ECF 26-2 (a Maryland
Department of Assessments & Taxation record showing that EWM has its “Principal Office” in
Maryland); ECF 26-3 (EWM‟s website, stating that its “Corporate Headquarters” are in
Maryland); ECF 26-5 (photographs depicting EWM‟s occupied office in Maryland).
Even if EWM were diverse from plaintiff, defendant Anthony is not. This action was
removed to federal court on June 14, 2017, and, as noted, diversity is determined at the time of
removal. Dennison, 549 F.3d at 943. Defendants have submitted the Affidavit of Mr. Anthony,
in which he avers that “[o]n July 1, 2017, [John G. Anthony] moved [his] residence to
Huntington, West Virginia,” and “[a]s of July 1, 2017, [he is] no longer a legal resident of
Maryland.” ECF 24-2, ¶¶ 3, 6. Therefore, it is evident that at the time of removal Mr. Anthony
was domiciled in Maryland.
Because at least one defendant was not diverse from plaintiff at the time of removal,
there was no diversity jurisdiction at that time.5
Defendants suggest in their Opposition to Remand that they can remove the case again
if it is remanded. ECF 24 at 9. Section 1446(b) of Title 28 of the United States Code makes
clear that notice of removal must be filed within 30 days after receipt by the defendants of the
original or amended complaint. In their Notice of Removal, defendants state that their attorneys
“accepted service of the Summons and Amended Complaint on behalf of Defendants on May 26,
2017.” ECF 1, ¶ 3. Thus, it appears that defendants‟ 30 day window to remove based on
diversity of citizenship expired by the end of June, before Mr. Anthony moved to West Virginia
and while EWM appears to have been operating in Maryland.
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2. Discretion to Remand
Upon abandonment of the FLSA claim, this Court lacks federal question jurisdiction. All
parties agree (ECF 24 at 8, 9; ECF 26 at 4), and the law makes clear, that the decision to exercise
supplemental jurisdiction over the remaining Maryland law claims is within the court‟s
Section 1367 of Title 28 of the United States Code provides, in part:
The district courts may decline to exercise supplemental jurisdiction . . . if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
(4) in exceptional circumstances, there are other compelling reasons for declining
Plaintiff urges that, in the absence of the FLSA claim, this Court should exercise its
discretion to remand. ECF 18-1 at 5. In their Opposition to Remand, defendants depend largely
on their erroneous assertion of diversity jurisdiction, but also mention “the principles of fairness,
comity, and judicial economy” as grounds for this Court to retain the case. ECF 24 at 9. In their
Opposition to Dismissal, defendants also urge the Court to bar plaintiff‟s “blatant forum
shopping” and “manipulative” tactics. ECF 25 at 1-2.
In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988), the Supreme Court considered
“whether a district court has discretion to remand a removed case to state court when all federallaw claims have dropped out of the action and only pendent state-law claims remain.” Id. at 348.
In that case, the plaintiff had stated a single federal claim and a number of state law claims, and
the defendant removed the case on the basis of federal question jurisdiction. Id. at 350-51. Early
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in the litigation, the federal claim was eliminated and the district court opted to remand the
remaining claims to state court. Id. at 351.6
The Supreme Court upheld the remand. Id. at 357. In so doing, the Court set forth a
number of factors for a district court to consider in deciding whether to retain a case or remand.
These include the convenience and fairness to the parties, the existence of any underlying issues
of federal policy, comity, and considerations of judicial economy. Id. at 350 (citing United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)); see also Shanaghan v. Cahill, 58 F.3d 106,
110 (4th Cir. 1995).
As a general matter, the Fourth Circuit has indicated that in circumstances such as these,
“our precedents evince a strong preference that state law issues be left to state courts . . . .”
Arrington v. City of Raleigh, 369 F. App‟x 420, 423 (4th Cir. 2010). The Court said: “„[A]
federal court should consider and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity in order to decide whether to
exercise jurisdiction over a case brought in that court involving pendent state-law claims.‟” Id.
at 423-24 (quoting Cohill, 484 U.S. at 350) (emphasis in Arrington).
Accordingly, I shall evaluate whether to retain jurisdiction based on the considerations of
judicial economy, convenience, fairness, and comity.
Judicial economy does not weigh against remand. Plaintiff‟s only federal claim has been
abandoned. And, because defendants cannot establish diversity jurisdiction, it is not likely that
this case will return to federal court. C.f. Moffitt v. Residential Funding Co., LLC, 604 F.3d 156,
As noted in Cohill, the Supreme Court had already decided in United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 726 (1966), that the continued exercise of jurisdiction over pendent
claims was a matter “of discretion, not of plaintiff‟s right.” The question in Cohill was whether
the district court could remand the remaining state law claims, rather than dismiss them. Cohill,
484 U.S. at 350.
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160 (4th Cir. 2010) (judicial economy weighed against remand because “these cases would likely
end up in federal court regardless . . . .”). Likewise, comity does not weigh against remand. See,
e.g., Medina v. L & M Const., Inc., RWT-14-00329, 2014 WL 1658874, at *2 (D. Md. Apr. 23,
2014) ) (“Finally, as a matter of comity, this Court will remand [plantiff‟s] state law claims back
to state court, as „[n]eedless decisions of state law [by federal courts] should be avoided both as a
matter of comity and to promote justice between the parties, by procuring for them a surer-footed
reading of applicable law.‟” (quoting Gibbs, 383 U.S. at 726) (alteration in Medina)).
In considering the convenience of the parties, I note that no discovery has taken place and
no trial date is set. I recognize that defendants paid a filing fee to remove the case. Paraphrasing
Judge Legg‟s observation in Shilling, 423 F. Supp. 2d at 520, “[a]lthough Defendants have
incurred expenses in the removal and remand process, they have gained something as well.
Namely, Plaintiff has agreed to dismiss [her FLSA] claim with prejudice.” I am also mindful
that one of defendants‟ lawyers has paid for pro hac vice admission in this Court (ECF 25 at 2).
But, that cost is relatively nominal.
The only developments that occurred in federal court, prior to plaintiff‟s motions, were
defendants‟ answer and counterclaims. ECF 14. There is no reason why these filings should not
fare just as well in State court. Indeed, counterclaims can also be remanded, even if they were
first filed in federal court after removal. See, e.g., Cty. Of James City v. Rogers, 360 F. App‟x
439, 441 (4th Cir. 2010) (noting with approval the district court‟s remand of defendant‟s
counterclaims). Moreover, remand should not cause any logistical inconvenience to the parties,
who would still be litigating in the Baltimore metropolitan area. C.f. Shilling, 423 F. Supp. 2d at
520-21 (“[A]s the Circuit Court for Baltimore City and this Court are both located in Baltimore
City, it will not inconvenience the parties to litigate this action in state court.”)
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As for fairness, defendants allege no prejudice to the substance of their defense or
counterclaims. Instead, defendants allege procedural unfairness in plaintiff‟s “blatant forum
shopping.” ECF 25 at 1. This is a legitimate concern. “But there is no „categorical prohibition‟
on such manipulation.” Wood v. Crane Co., 764 F.3d 316, 322 (4th Cir. 2014) (quoting Cohill,
484 U.S. at 357). Instead, as the Supreme Court has instructed: “If the plaintiff has attempted to
manipulate the forum, the court should take this behavior into account in determining whether
the balance of factors to be considered under the pendent jurisdiction doctrine support a remand
in the case.” Cohill, 484 U.S. at 357.
Plaintiff acknowledges, more or less, that her object is to return the case to State court.
See ECF 18-1 at 5. Still, under similar circumstances, judges of this Court have found that the
balance of factors shifts in favor of remand. See, e.g., Green v. Baltimore City Police Dep’t,
WMN-10-3216, 2011 WL 335868, at *1 (D. Md. Jan. 31, 2011) (“Thus, while forum
manipulation is of serious concern to this Court, . . . the interests in comity, convenience and
judicial economy are more substantial.”); Berry v. PLC, Inc., RDB-06-0006, 2006 WL 1042373,
at *2 (D. Md. Apr. 20, 2006) (“Although forum manipulation is a significant concern, that factor
is outweighed in this case by the interests of judicial economy and comity.”); Shilling, 423 F.
Supp. 2d. at 520 (declining to exercise jurisdiction even though “Plaintiff dismissed his [federal]
claim in an effort to destroy federal jurisdiction”).
For these reasons, I decline to exercise jurisdiction over the remaining State law claims.
Disapproval of forum manipulation is an inadequate reason to retain an action composed entirely
of State law claims and counterclaims. “With all its federal questions gone, there may be the
authority to keep [this case] in federal court under 28 U.S.C. §§ 1367(a) and 1441(c) (2000), but
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there is no good reason to do so.” Waybright v. Frederick Cty., MD, 528 F.3d 199, 209 (4th Cir.
3. Attorneys’ Fees
In her Motion to Remand, plaintiff asks this Court to award “reasonable attorneys‟ fees
and costs incurred in connection with removal, including preparing and litigating the instant
Motion to Remand, pursuant to 28, [sic] U.S.C. § 1447(c).” ECF 18 at 3. Plaintiff requests these
fees on the basis that she “afforded Defendants an opportunity to agree to remand the case” and
they declined, necessitating litigation of the Motion to Remand. Id.
Section 1447(c) of Title 28 allows for the payment of costs and expenses incurred as a
result of removal if the case is thereafter remanded to the state court. But, “[a]bsent unusual
circumstances, courts may award attorney‟s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005) (citations omitted).
In my view, the request for legal fees reflects considerable audacity.
removal of the case was “objectively reasonable” and wholly proper. It is plaintiff who went to
great lengths to secure a remand, by abandoning her FLSA claim. Defendants had no obligation
to agree to the remand. I shall deny plaintiff‟s request for legal fees and costs.
For the reasons stated above, I shall GRANT plaintiff‟s Motion to Voluntarily Dismiss,
and I shall GRANT plaintiff‟s Motion to Remand. I shall, however, DENY plaintiff‟s request
for legal fees and costs.
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An Order follows, consistent with this Memorandum.
Date: September 26, 2017
Ellen Lipton Hollander
United States District Judge
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