Candy et al v. People for the Ethical Treatment of Animals, Inc. et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paula Xinis on 9/7/2018. (heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROBERT CANDY et al.,
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Plaintiff
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v.
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PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS, INC., et al.,
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Civil Action No. 8:18-cv-1549-PX
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Defendants
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MEMORANDUM OPINION
Pending before the Court is Plaintiffs’ motion to remand this action to the Circuit Court
for Allegany County, Maryland. ECF No. 11. The motion is fully briefed and the Court rules
under Local Rule 105.6 because no hearing is necessary. For the reasons that follow, the Court
grants the motion and remands this case to Allegany County Circuit Court for all further
proceedings.
I.
BACKGROUND
Plaintiffs Robert Candy, Animal Park, Care & Rescue, Inc. and Tri-State Zoological Park
of Western Maryland, Inc. operate a small zoo in Cumberland, Maryland. ECF No. 2 ¶ 12.
According to Plaintiffs, People for the Ethical Treatment of Animals, Inc. (“PETA”) began
targeting the zoo in 2014 for the zoo’s alleged mistreatment of the animals. Id. ¶¶ 11, 14. PETA
has sent agents to the zoo to photograph and record surreptitiously the animals and their habitats.
Id. ¶ 15. To gain entry to the zoo, certain PETA agents affirmatively denied their affiliation with
PETA to zoo personnel. Others, including named Defendants Holly Brown and Casey Brown
(“the Brown sisters”), entered the zoo without first identifying themselves as PETA affiliates, in
violation of the zoo’s requirements as posted at the zoo’s entrance. ECF No. 11 ¶¶ 13-14. PETA
subsequently published at least one photograph of the zoo’s conditions that the Brown sisters had
taken. ECF No. 2 ¶ 30. Additionally, PETA has alleged mistreatment of the zoo animals on its
website, social media platforms, and email lists, documenting the conditions in part by its
unauthorized entry onto zoo grounds. ¶¶ 35, 37. PETA also filed complaints in the Department
of Agriculture and before this Court. Id. ¶ 27; People for the Ethical Treatment of Animals, Inc.
v. Tri-State Zoological Park of Western Md., Inc. et al., No. PX-17-2148, 2018 WL 434229 (D.
Md. Jan. 16, 2018).
On May 23, 2018, Plaintiffs filed this lawsuit in the Allegany County Circuit Court
against PETA and its agents for defamation, false light, tortious interference with business
relations/prospective advantage, civil conspiracy, trespass, and fraud. ECF No. 2 ¶¶ 47–69.
Plaintiffs claimed damages of $74,500 for each count. Id. The Defendants thereafter removed
the action to this Court, alleging diversity jurisdiction under 28 U.S.C. §1332(a). ECF No. 1
¶ 12.
On June 20, 2018, Plaintiffs moved to remand this action to the Allegany County Circuit
Court and requested attorneys’ fees for their efforts. ECF No. 11. Plaintiffs noted that the
parties are not completely diverse because Plaintiffs and at least two named Defendants, the
Brown sisters, are all citizens of Maryland. Id. ¶ 2. PETA does not contest that Plaintiffs and
the Brown sisters are Maryland citizens, but rather contends that the Brown sisters were “added
solely as a means to defeat diversity jurisdiction.” Id. ¶ 28. It is undisputed that all remaining
Defendants are citizens of states other than Maryland. ECF No. 1 ¶¶ 20–25. Accordingly, if the
Court agrees that the Brown sisters have been fraudulently joined, and if the amount in
controversy is met, then the action must not be remanded. For the following reasons, the Court
GRANTS the motion to remand.
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II.
STANDARD OF REVIEW
This Court is one of limited jurisdiction, authorized to hear civil cases giving rise to a
federal question or brought pursuant to the Court’s diversity jurisdiction. Exxon Mobile Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Diversity jurisdiction is proper where the
amount in controversy exceeds $75,000 and complete diversity exists such that no plaintiff is a
citizen of the same state as any defendant. 28 U.S.C. § 1332(a); Johnson v. Am. Towers, LLC,
781 F.3d 693, 704 (2015). Where diversity jurisdiction is proper, a defendant may remove the
case to federal court pursuant to 28 U.S.C. § 1441. Caterpillar, Inc. v. Williams, 482 U.S. 386,
392 (1987); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
“Because removal jurisdiction raises significant federalism concerns, [courts] must
strictly construe removal jurisdiction.” Mulcahey, 29 F.3d at 151; see also Cohn v. Charles, 857
F. Supp. 2d 544, 547 (D. Md. 2012) (“Doubts about the propriety of removal are to be resolved
in favor of remanding the case to state court.”). The defendant, as removing party, bears the
burden of “demonstrating the court’s jurisdiction over the matter.” See Md. Stadium Auth. v.
Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir. 2005); Strawn v. AT&T Mobility, LLC, 530 F.3d
293, 296 (4th Cir. 2008).
III.
ANALYSIS
Defendants principally contend that diversity jurisdiction exists because Plaintiffs have
fraudulently joined the Brown sisters for the sole purpose of defeating diversity. ECF No. 11
¶ 28. Where defendants are joined fraudulently, district courts “can disregard, for jurisdictional
purposes, the citizenship of certain nondiverse defendants.” Weidman v. Exxon Mobile Corp.,
776 F.3d 214, 218 (4th Cir. 2015) (internal quotation marks omitted) (quoting Mayes v.
Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). The party seeking to establish fraudulent joinder
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must demonstrate “either that the plaintiff committed outright fraud in pleading jurisdictional
facts, or that there is no possibility that the plaintiff would be able to establish a cause of action
against the in-state defendant in state court.” Weidman, 776 F.3d at 218 (internal quotation
marks omitted) (quoting Mayes, 198 F.3d at 464).
Importantly, the lens through which the Court considers the question of fraudulent
joinder “is even more favorable to the plaintiff than the standard for ruling on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).” Hartley v. CSX Transp., Inc., 187 F.3d
422, 424 (4th Cir. 1999). The plaintiff “must show only a ‘glimmer of hope’” of success on
claims brought against non-diverse defendants. Johnson, 781 F.3d at 704 (quoting Mayes, 198
F.3d at 466). Moreover, the Court may consider the entire record, with all factual and legal
disputes resolved in the plaintiff’s favor. Mayes, 198 F.3d at 464; see also Johnson, 781 F.3d at
704.
PETA asserts, as it must, that Plaintiffs could never establish the Brown sisters’ liability
on any of the claims. ECF No. 12 at 2. PETA’s argument is unavailing as to the trespass claims
against the Brown sisters. Id. at 6. A civil trespass is “an intentional or negligent intrusion upon
or to the possessory interest in property of another.” Litz v. Md. Dep’t of Env’t, 446 Md. 254,
276–77 (2016) (quoting Schuman v. Greenbelt Homes, Inc., 212 Md. App. 451, 475 (2013).
Based on the Complaint, the Plaintiffs have plausibly averred a trespass claim as to the Brown
sisters. See ECF No. 2 ¶ 27.
PETA contends, however, that the zoo’s “consent” to entry is a complete defense to
trespass and so defeats the claim as a matter of law. ECF No. 12 at 6. PETA is correct only if
the Brown sisters’ entry did not exceed the scope of the zoo’s consent. See Mitchell v. Balt. Sun
Co., 164 Md. App. 497, 508 (2005). Put plainly, where a business invites individuals onto its
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premises for the purpose of providing goods or services, it cannot then claim such individuals
have trespassed. See Wells v. Polland, 120 Md. App. 699, 710 (1998) (premises liability); see
also Balt. Gas & Elec. Co. v. Flippo, 348 Md. 680, 690 n.3 (1998) (noting the analytical
similarities between premises liability and trespass actions).
However, Plaintiffs allege that the Brown sisters gained access to the zoo in
contravention of the zoo’s posted requirement that PETA affiliates identify themselves prior to
entering the zoo. ECF No. 2 ¶ 13; ECF No. 11 ¶ 13. Under a favorable reading to Plaintiffs, the
sign conditioned Plaintiffs’ consent to entry upon the Brown sisters disclosing their affiliation
with PETA. See City of Annapolis v. Waterman, 357 Md. 484, 522 (2000) (describing “no
trespassing” signs as a “way[] to deny access to the public”); Monroe v. State, 51 Md. App. 661,
665 (1982) (holding, in the context of criminal trespass, that “[t]he use of the precise wording,
‘No trespassing’ or ‘Trespassers forbidden’ is not mandated”). Moreover, the “determination of
whether consent was given is a question of fact” properly decided by a jury. Royal Inv. Grp.,
LLC v. Wang, 183 Md. App. 406, 445 (2008); see also I & G Inv’rs, LLC v. Dunn, No. JKS 121109, 2013 WL 5655703, at *3 (D. Md. Oct. 16, 2013). Without expressing an opinion on the
likelihood of success, Plaintiffs have put forward sufficient facts to sustain “a glimmer of hope”
that Maryland courts would find that the Brown sisters violated the terms of Plaintiffs’ consent.
Johnson, 781 F.3d at 704 (quoting Mayes, 198 F.3d at 466). Because the trespass claim remains
heavily fact-driven, and Plaintiffs in the end may succeed against the Brown sisters on this claim,
these Defendants are not fraudulently joined, and the parties are not completely diverse. This
Court, therefore, lacks jurisdiction to hear the case and it must be remanded. 1
The Court declines to award attorneys’ fees to Plaintiffs because PETA did not act in an
1
Because the Court finds that complete diversity is lacking, the Court need not reach whether the amount in
controversy is met.
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objectively unreasonable manner by removing the case. See Martin v. Franklin Capital Corp.,
546 U.S. 132, 141 (2005).
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to remand is granted. A separate Order
follows.
September 7, 2018______________
Date
____/S/____________________
Paula Xinis
United States District Judge
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