Payne Inc. et al v. Bore Express, Inc. et al
MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 7/16/2021. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PAYNE, INC. et al
BORE EXPRESS INC. et al,
Civil Case No.: 1:21-cv-00048-JMC
Plaintiffs Payne, Inc. and David Rickell (together, “Plaintiffs”) brought this action against
Defendants Bore Express, Inc. and Faysal Ahmed Alas (together, “Defendants”) in the Circuit
Court for Baltimore City, Maryland, alleging a single count of negligence against each defendant.
(ECF No. 3). Defendant Alas removed the case to this Court with Defendant Bore’s consent.
(ECF No. 1). The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. §
636(c) and Local Rule 301.4 (D. Md. 2021). (ECF Nos. 25; 26).
Presently before the Court are the following motions: Defendants’ Motion to Dismiss for
Lack of Prosecution (“Motion to Dismiss”) (ECF No. 15); Plaintiffs’ Motion to Compel Discovery
Responses (“Motion to Compel”) (ECF No. 46); Plaintiffs’ Motion to Quash 30(b)(6) Deposition
Notice (“Motion to Quash”) (ECF No. 47); and Plaintiffs’ Motion to Remand to State Court for
Lack of Subject Matter Jurisdiction (“Motion to Remand”) (ECF No. 48). The issues have been
fully briefed (ECF Nos. 27, 34, 51, 52, 53, 54, 60) and no hearing is necessary. See Local Rule
105.6. For the reasons more fully explained below: Defendants’ Motion to Dismiss is DENIED;
Plaintiffs’ Motion to Compel is DENIED AS MOOT; Plaintiffs’ Motion to Quash is DENIED
WITHOUT PREJUDICE; and Plaintiffs’ Motion to Remand is DENIED.
This case arises out of a multi-car motor vehicle accident on I-95 North in Baltimore City,
Maryland, on December 16, 2016. The underlying facts of that accident are not relevant for
purposes of this opinion. Thus, the Court will confine its description of the relevant background
to the procedural events giving rise to the motions.1
Plaintiffs filed suit against Defendants in the Circuit Court for Baltimore City (the “Circuit
Court”) on September 17, 2019. (ECF No. 3).
The Clerk of the Circuit Court issued a summons for Defendant Alas on September 19,
2019. (ECF No. 15-3). Plaintiffs filed an Affidavit of Process Server asserting that Defendant
Alas was served on December 9, 2019, more than sixty days after the Clerk’s issuance of the
summons. (ECF Nos. 15-4; 27-4). Plaintiffs filed a Request for Order of Default against
Defendant Alas on February 13, 2020. (ECF Nos. 15-5; 27-5). The Request for Order of Default
was only mailed to Defendant Alas; Plaintiffs did not serve same on Defendant Bore. (ECF Nos.
15-5; 27-5). The Circuit Court entered an order granting the Request for Order of Default on
March 13, 2020, and the Clerk of the Circuit Court issued a Notice of Default on March 24, 2020.
(ECF No. 27-7). Plaintiffs then filed a Request for Default Judgment against Defendant Alas on
May 19, 2020. (ECF No. 15-6; 27-8). The Circuit Court ordered judgment by default in the
amount of $374,722.22 against Defendant Alas on June 10, 2020, and the Clerk of the Circuit
Court entered same on June 15, 2020. (ECF No. 27-9).
The Court notes that several dates in both parties’ recitations of the procedural history are inconsistent with the
exhibits attached to Defendants’ Motion to Dismiss and Plaintiffs’ response thereto. The inconsistencies are
immaterial; however, for preciseness, the Court includes only those dates that may fairly be supported by the exhibits.
On November 20, 2020, with Plaintiffs’ consent, Defendant Alas moved to vacate the
default judgment and strike Plaintiffs’ purported service on Defendant Alas as improper. (ECF
No. 1-17). On December 2, 2020, the Circuit Court granted Defendant Alas’ Consent Motion to
Vacate Default Judgment and ordered the service stricken. (ECF No. 15-7). Approximately one
month later, on January 6, 2021, Counsel for Alas “accepted service on behalf of Defendant Alas.”
(ECF No. 15-1 at 4). On January 7, 2021, Defendant Alas filed an Answer in the Circuit Court,
(ECF No. 1-19; 8), and filed his Notice of Removal in this Court. (ECF No. 1).
The Clerk of the Circuit Court issued summons for Defendant Bore on September 19, 2019.
(ECF No. 15-3). Defendant Bore is a North Carolina corporation with its principal place of
business located in Charlotte, North Carolina. (ECF No. 15-8). Defendant Bore’s business entity
registration identifies Abshir Bore as its registered agent. Id. Plaintiffs first attempted to serve
Defendant Bore on October 11, 2019 at its principal place of business and contend that Defendant
Bore’s registered agent “refused to come out of his office when service was attempted.” (ECF No.
27 at 4). Ultimately, Plaintiffs filed an Affidavit of Process Server asserting that Li Omar,
“Manager” of Defendant Bore was served. (ECF Nos. 15-9; 27-11). Plaintiffs then requested an
Order of Default against Defendant Bore on December 27, 2019. (ECF Nos. 15-1 at 4; 27 at 4).
The request was denied for Plaintiffs’ failure to attach a certificate of service to the filing. Id.
Plaintiffs refiled their request for Order of Default on January 7, 2020. (ECF No. 15-10). Plaintiffs
did not serve Defendant Alas with the second Request for Order of Default. Id. The Circuit Court
denied this request by an Order indicating that Plaintiffs’ Affidavit of Service failed to comply
with Maryland Rule 2-124(d).2 (ECF Nos. 15-11; 27-12 at 2).
The rule provides that “[s]ervice is made upon a corporation, incorporated association, or joint stock company by
serving its resident agent, president, secretary, or treasurer. If the corporation, incorporated association, or joint stock
Plaintiffs filed another Affidavit of Process Server which asserted that Defendant Bore’s
resident agent was served via substitute service on March 9, 2020. (ECF Nos. 15-12; 21-13 at 31).
Plaintiffs again filed a Request for Order of Default against Defendant Bore on May 15, 2020.
(ECF No. 15-13). The Circuit Court denied this third request for Order of Default for Plaintiffs’
failure to comply, this time, with Maryland Rule 2-113.3 (ECF No. 15-14). This Request for Order
of Default also was not served on Defendant Alas. Id.
On June 24, 2020, Plaintiffs requested, in writing, that the Clerk of the Circuit Court reissue
summons for Defendant Bore, which it did. (ECF No. 15-15). Thereafter, Plaintiffs served
Defendant Bore via substituted service on Defendant Bore’s resident agent on September 9, 2020.
(ECF Nos. 15-16; 27-14). On November 20, 2020, Defendant Bore filed an Answer in the Circuit
Court. (ECF Nos. 1-16; 7).
Motion for Remand
The Court must first address Plaintiffs’ motion for remand because “[t]he question of
subject-matter jurisdiction necessarily precedes any inquiry into the merits of a case.” Eccles v.
Nat’l Semiconductor Corp., 10 F. Supp. 2d 514, 516 (D. Md. 1998) (citation omitted). Under 28
U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the defendants. . . .”
The removing party bears the burden of establishing jurisdiction. Hurley v. CBS Corp., 648 Fed.
App’x. 299, 303 (4th Cir. 2016). “[S]ignificant federalism concerns” require federal courts to
company has no resident agent or if a good faith attempt to serve the resident agent, president, secretary, or treasurer
has failed, service may be made by serving the manager, any director, vice president, assistant secretary, assistant
treasurer, or other person expressly or impliedly authorized to receive service of process.” Md. R. 2-124(d).
The rule provides that “[a] summons is effective for service only if served within 60 days after the date it is issued.
A summons not served within that time shall be dormant, renewable only on written request of the plaintiff.” Md. R.
strictly construe removal jurisdiction. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.
2004) (en banc). If federal jurisdiction is “doubtful,” remand is “necessary.” Id.
28 U.S.C. § 1446 details the procedure that a party seeking removal must follow. The
statute contains two temporal requirements. First, generally, notice of removal “shall be filed
within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or proceeding is
based. . . .” 28 U.S.C. § 1446(b)(1). Second, a civil action where “the case stated by the initial
pleading is not removable,” may not be removed on the basis of diversity jurisdiction “more than
1 year after commencement of the action, unless the district court finds that the plaintiff has acted
in bad faith in order to prevent a defendant from removing the action.” Id. §§ 1446(b)(3), (c)(1).
Plaintiffs argue that removal was improper because Defendants’ Notice of Removal was
not filed until more than one year after the commencement of the action in state court. (ECF No.
48-1 at 4–8). Defendants respond that “where a case is removable based on the initial pleading,
the one-year time limitation contained in § 1446(c)(1) does not apply.” (ECF No. 51 at 5).
Accordingly, this Court must decide, as a threshold matter, whether the one-year time limitation
on removal applies here.
This action commenced in the Circuit Court on September 17, 2021. (ECF No. 3). “[I]t is
clear that this Court looks to the law of the State of Maryland to determine when the action
‘commences’ under 28 U.S.C. § 1446(b). It is well established that an action commences under
Maryland law on the date that the initial complaint is filed.” Lexington Market, Inc. v. Desman
Assocs., 598 F. Supp. 2d 707, 710 (D. Md. 2009) (citation omitted); see Md. Rule 2-101(a) (“A
civil action is commenced by filing a complaint with a court.”). Maryland law does not require
service of process upon a defendant for an action to “commence.” Lexington Market, 598 F. Supp.
2d at 711 (citing Sledz v. Flintkote Co., 209 F. Supp. 2d 559, 562 (D. Md. 2002)).
Previous decisions of this Court have recognized that “[T]he United States Court of
Appeals for the Fourth Circuit has not directly spoken on whether the one-year time limitation of
§ 1446(b) applies only to the cases which are the subject of paragraph two of the section, or
whether it applies to all cases removed under § 1446.” White v. Lexington Court Apartments, Civ.
No. DKC-16-0427, 2016 WL 1558340, at *2 (D. Md. Apr. 18, 2016) (quoting LaPosta v. Lyle,
Civ. No. 5:11CV117, 2012 WL 1752550, at *3 (N.D.W.Va. May 16, 2012)).
notwithstanding, the “weight of authority construes the one[-]year limitation to apply only to cases
that were not originally removable.” Id. Indeed,
courts of appeals that have directly addressed the issue have overwhelmingly held
that the one-year limitation only applies to the cases addressed by the second
paragraph, those not originally removable that only become so during the
progression of the case. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316–17
(9th Cir. 1998); Brown v. Tokio Marine & Fire Ins. Co., 284 F.3d 871, 873 (8th
Cir. 2002); Price v. Wyeth Holdings, Corp., 505 F.3d 624, 631 n.6 (7th Cir. 2007)
(noting that all circuits deciding the issue have found that the one-year rule only
applies to cases not initially removable); Brierly v. N.Y. Life Ins. Co. v. Deshotel,
142 F.3d 873 (5th Cir. 1998).
White, 2016 WL 1558340, at *2 (D. Md. Apr. 18, 2016) (quoting LaPosta, 2012 WL 1752550, at
*3 (N.D.W.Va. May 16, 2012)). “After analysis of the language and construction of the statute,
the legislative history and recent amendments, as well as the reasoning of courts outside of the
Fourth Circuit,” the LaPosta Court concluded “that no reasonable interpretation of the statute
could lead to a conclusion that the one-year limitation applies to cases which were removable from
the time of their filing.” Id. (quoting LaPosta, 2012 WL 1752550, at *3 (N.D.W.Va. May 16,
2012)). Just as those courts before it, so too does this Court conclude that the one-year limitation
is applicable only to cases not originally removable.
Naturally, then, the question becomes whether Plaintiffs’ complaint, as originally filed in
the Circuit Court, was removable. The Court may “rely on the face of the initial pleading and on
the documents exchanged in the case by the parties to determine when defendant had notice of
grounds for removal, requiring that those grounds be apparent within the four corners of the initial
pleading or other subsequent paper.” Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir.
1997). Defendants, relying on their Notice of Removal, argue that the case was originally
removable under 28 U.S.C. § 1332. (ECF No. 51 at 10–11). More specifically, Defendants assert
that there existed complete diversity of citizenship among all parties and the amount in controversy
exceeded § 1332’s threshold requirement of more than $75,000. Id.
Plaintiffs’ initial complaint was instituted by Plaintiff Payne, Inc. (a Virginia corporation)
and Plaintiff Rickell (a Maryland resident). Id. at 10; (ECF No. 1 at 1–2). The complaint named
Defendant Alas (an Ohio resident) and Defendant Bore Express, Inc. (a North Carolina
corporation). Id. at 10; (ECF No. 1 at 1–2). Plaintiffs’ state court complaint sought damages in
the amount of $229,089.29. (ECF Nos. 1 at 3; 3 at 5); see Wiggins v. N. Am. Equitable Life
Assurance Co., 644 F.2d 1014, 1016 (4th Cir. 1981) (citation omitted) (“Ordinarily the
jurisdictional amount is determined by the amount of the plaintiff’s original claim, provided that
the claim is made in good faith.”). On these facts, it is clear that Plaintiffs’ initial state court
complaint was removable on the basis of 28 U.S.C. § 1332 pursuant to 28 U.S.C. § 1446.
Having determined the one-year limitation is inapplicable here, the only remaining matters
for the Court concern the propriety of Defendant Alas’ notice of removal (i.e., whether it was
timely filed) and whether there still exists subject matter jurisdiction. See 28 U.S.C. § 1446(b)(1);
§ 1447(c). For Plaintiffs to challenge removal on procedural grounds, the Motion for Remand
must have been sought within thirty days after filing of the notice of removal. See 28 U.S.C.
§ 1447(c) (“[a] motion to remand the case 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 under
section 1446(a).”) (emphasis supplied); see also Burns v. Washington Metro. Area Transit Auth.,
488 F. Supp. 3d 210, 215 (D. Md. 2020) (rejecting remand where Plaintiff failed to timely file a
motion for remand on procedural grounds); Charles Alan Wright et al., 14C Federal Practice and
Procedure § 3731 (4th ed. 2009) (“The two 30-day time limitations in Section 1446 are mandatory,
even though several courts have ruled that they are not jurisdictional limitations and may be
waived.”). Here, Plaintiffs filed their Motion for Remand 120 days after Defendant Alas’ notice
of removal. See Docket. As such, Plaintiffs’ arguments that the notice of removal is procedurally
“defective and insufficient,” (ECF No. 48-1 at 11), are untimely and, therefore rejected. Instead,
consistent with § 1447(c), the Court’s review at this juncture is limited to the existence (or lack
thereof) of subject matter jurisdiction.
After removal, Plaintiffs filed an operative Amended Complaint in this Court. (ECF No.
45). The parties to the Amended Complaint remain the same: Plaintiffs Payne and Rickell assert
claims against Defendants Bore Express and Alas. Id. Thus, as explained above, there remains
complete diversity of citizenship. The only substantive difference between Plaintiffs’ Amended
Complaint and Plaintiffs’ initial state court complaint is the amount in controversy. In this Court,
Plaintiffs assert damages exceeding five million dollars, as opposed to the $229,089.29 sought in
state court. Id. at 5. It is plain that this Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332. There is complete diversity of citizenship among the parties and the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332(a)(1). Accordingly, Plaintiffs’ Motion to Remand is
Rule 41(b) Motion to Dismiss
Next, the Court turns its attention to Defendants’ dispositive motion—styled as a motion
to dismiss—pursuant to Federal Rule of Civil Procedure (“FRCP”) 41(b). (ECF No. 15). Under
that Rule, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b).
Dismissal under Rule 41(b) is but one tool in the courts’ “comprehensive arsenal of Federal Rules
and statutes to protect themselves from abuse.” Diamond v. Bon Secours Hosp., Civ. No. WMN09-865, 2010 WL 2696632, at *6 (D. Md. July 6, 2010) (quoting Chambers v. NASCO, Inc., 501
U.S. 32, 62 (1991)).
The Fourth Circuit recently reiterated that “a court has the ‘inherent power’ to dismiss an
action for want of prosecution.” Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019) (citing
Link v. Wabash R. Co., 370 U.S. 626, 630 (1962)). A court’s power to involuntarily dismiss a case
“derives from ‘the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.’” Id. (quoting Link, 370 U.S. at 630–31).
“[R]ecognizing the severity of dismissal as a sanction” pursuant to Rule 41(b), trial courts must
consider the following four factors: “(1) the plaintiff’s degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately
proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.”
Attkisson, 925 F.3d at 625 (quoting Hillig v. IRS, 916 F.2d 171, 174 (4th Cir. 1990)); see also
Diamond, 2010 WL 2696632, at *6–7 (D. Md. July 6, 2010).
These criteria, however, do not create a “rigid four-prong test.” Attkisson, 925 F.3d at 625
(quoting Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)). Instead, the court must analyze “the
facts of each case” in exercising its discretion to determine whether involuntary dismissal is an
appropriate sanction. Attkisson, 925 F.3d at 625 (quoting Reizakis v. Loy, 490 F.2d 1132, 1135
(4th Cir. 1974)). Not surprisingly, “[a] dismissal with prejudice [under Rule 41(b)] is a harsh
sanction which should not be invoked lightly in view of ‘the sound public policy of deciding cases
on their merits.’” Stratagene v. Invitrogen Corp., 206 F.R.D. 121, 122 (D. Md. 2002) (quoting
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 2002)). It follows, then, that “[w]hile the power to
dismiss clearly lies with the district courts, it is appropriately exercised only with restraint.” Dove
v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978).
The gravamen of Defendants’ Motion to Dismiss hinges on Plaintiffs’ failures to
sufficiently effect service of process upon Defendants in the state court action and the delay caused
therefrom, prior to Defendants’ removal to this Court. (ECF No. 15-1 at 4–6; 7–16). Defendants’
chief complaints are that: (1) Plaintiffs’ failed to serve Defendant Alas with valid, enforceable
summons (i.e., within sixty days of the issuance of same) and the complaint, pursuant to Maryland
Rule 2-113; and (2) Plaintiffs failed to properly serve Defendant Bore, a corporation, with valid,
enforceable summons and the complaint by service on its registered agent.
As a result,
approximately a year elapsed from the filing of the complaint in the Circuit Court and service on
“State law governs the sufficiency and service of process before removal to federal court.”
Sharp v. Am. Honda Motor Co., Inc., Civ. No. 09-cv-2622, 2009 WL 4061761, at *1 (D. Md. Nov.
19, 2009) (citing Eccles, 10 F. Supp. 2d at 519); see also Jefferson v. Nat’l R. Passenger Corp.,
Civ. No. DKC-15-2275, 2015 WL 6437364, at *1 (D. Md. Oct. 21, 2015). Pursuant to Maryland
Rule 2-113, “[a] summons is effective for service only if served within 60 days after the date it is
issued. A summons not served within that time shall be dormant, renewable only on written
request of the plaintiff.” Moreover, in pertinent part, “[s]ervice is made upon a corporation . . . by
serving its resident agent, president, secretary, or treasurer.” Md. R. 2-124(d).
Here, summons directed at Defendant Alas was not served within the sixty days following
issuance. Defendant Alas’ summons was issued by the Clerk of the Circuit Court on September
19, 2019 and purportedly served on December 9, 2019, eighty-one days later. Accordingly,
because the summons became dormant after sixty days, the Circuit Court struck this improper
service pursuant to Maryland Rule 2-113. Summons directed at Defendant Bore was issued on
September 19, 2019. Plaintiffs’ process server attempted to serve the summons within sixty days,
but on Defendant Bore’s “Manager,” not resident agent. This failed to comply with Maryland
Rule 2-124(d). On June 24, 2020, Plaintiffs requested in writing that the summons be reissued.4
(ECF No. 15-15). Only on September 9, 2020, did Plaintiffs purportedly effectuate substituted
service on Defendant Bore’s registered agent.5 (ECF No. 15-16).
Plaintiffs do not—rightfully so—argue that the summons were effective. Instead, Plaintiffs
argue that Defendants waived any issues with service when Counsel for Defendants (1) entered an
appearance in the state court; and (2) filed Answers on behalf of Defendants without raising the
defense of insufficient service of process. (ECF No. 27 at 9). Thus, this Court must square
Maryland Rule 2-507—which permits a trial court to dismiss an action, and upon which
Defendants rely—with Maryland Rule 2-322, which enumerates particular defenses (namely the
The record is not clear as to when the Clerk of the Circuit Court issued the renewed summons. The Court is only
aware of when the Plaintiffs requested same.
The Court cannot determine, without knowing the day on which the Clerk of the Circuit Court reissued summons
directed at Defendant Bore, whether or not service occurred within sixty days, or if that summons also became dormant
by September 9, 2020. Neither party addresses this issue. However, as discussed, infra, it is immaterial.
defenses of “insufficiency of process” and “insufficiency of service of process”) that a defendant
must raise before filing an Answer.
Defendants rely on Maryland Rule 2-507(b), which provides that “[a]n action against any
defendant who has not been served or over whom the court has not otherwise acquired jurisdiction
is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of
original process directed to that defendant.” (ECF No. 15-1 at 8). Plaintiffs misread Defendants’
argument and contend (correctly) that a defendant is not permitted to bring a motion to dismiss
premised on Maryland Rule 2-507(c), which governs lack of prosecution. (Emphasis supplied);
see (ECF No. 27 at 9); Thomas v. Ramsburg, 99 Md. App. 395, 399 (1994) (“The plain language
of Rule 2–507 does not directly anticipate parties to an action filing motions to dismiss for lack of
prosecution; only that the clerk of the court should initiate such dismissal proceedings.”); Reed v.
Cagan, 128 Md. App. 641, 650 (1999). Maryland law is clear, however, that Maryland Rule 2507(b), which governs lack of jurisdiction, may properly provide the basis for a motion to dismiss.
See Conwell Law LLC v. Tung, 221 Md. App. 481, 509–11 (2015) (distinguishing between
subsections (b) and (c) of Maryland Rule 2-507 and noting that the former may be raised with the
court directly, whereas, the latter must be initiated by the clerk of the court). Thus, Defendants
could have crafted an argument under Maryland Rule 2-507(b) that Plaintiffs failed to acquire
jurisdiction over them; however, that opportunity has now passed.
“The filing of an answer by a defendant causes personal jurisdiction to attach in the court
where the answer is filed.” Trademark Remodeling, Inc. v. Rhines, 853 F. Supp. 2d 532, 537 (D.
Md. 2012) (citation omitted). Indeed, by filing an answer, a defendant forecloses the opportunity
to challenge a complaint based on insufficient service, insufficient process, improper venue, or
lack of personal jurisdiction. Id.; Md. R. 2-322(a) (“The following defenses shall be made by
motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the
person, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of
process. If not so made and the answer is filed, these defenses are waived.”). In the Circuit Court,
Defendant Bore filed an answer on November 20, 2020. (ECF Nos. 1-16; 7). Defendant Alas
filed an answer on January 7, 2021, before removing to this Court. (ECF Nos. 1-19; 8). The
docket does not reflect a motion to dismiss filed by either Defendant in the Circuit Court. See
Docket. Therefore, the Court concludes Defendants’ arguments grounded in the insufficiency of
service of process are waived, and turns to Defendants’ delay argument in light of the four factors
for consideration under Rule 41(b).
Applying those factors here, the Court concludes that Plaintiffs’ conduct falls short of the
level to justify the sanction of involuntary dismissal with prejudice. This is not such an extreme
case where dismissal is warranted pursuant to Rule 41(b). To the first and third factors, the record
does not bear out personal responsibility on behalf of Plaintiffs. The delay relating to service of
process that occurred while this matter was pending in the Circuit Court (which, as detailed above,
is waived) is attributable to counsel. Even so, any delay here does not demonstrate “a pattern of
intentional delay” or “obstructionist behavior,” that might otherwise justify involuntary dismissal.
See Snead v. Automation Indus., Inc., 102 F.R.D. 823, 827 (1984). Instead, the record reveals
Plaintiffs many, albeit defective, attempts to serve and obtain jurisdiction over Defendants. The
nearly year-long saga hardly demonstrates a “failure to prosecute” within the meaning of Rule
With regard to the second factor—prejudice—the Court appreciates Defendants argument
that prejudice customarily occurs with the passage of time after an accident. Certainly, to some
degree, “witnesses become difficult to locate; memories fade, making testimony less reliable; and
documentary evidence spoils.” O’Briant v. Nestlè Dreyer’s Ice Cream, Civ. No. ELH-18-1048,
2020 WL 3791958, at *8 (D. Md. July 6, 2020). Still, the prejudice Defendants articulate must be
balanced with the realities of this case, the young age of the matter in this Court, and the prejudice
to Plaintiffs in dismissing same before discovery begins in earnest. Less than five years have
elapsed since the significant motor vehicle accident giving rise to these claims. Defendants ascribe
some blame on Plaintiffs part for waiting to file the action until near the end of the statute of
limitations. However, Plaintiffs did timely file this case within the statute of limitations; there is
no argument to the contrary. Moreover, the Court agrees with Plaintiffs that Defendants’ claims
of prejudice are, at this pre-discovery stage, speculative. As such, the “sound public policy of
deciding cases on their merits” cautions against dismissal. Stratagene, 206 F.R.D. at 122.
Finally, this Court is persuaded that there exist other sanctions short of dismissal that could
effectively deter any future delays in this matter. Since Defendants’ removal to this Court, the
Court has not needed to induce Plaintiffs’ compliance with the Federal Rules of Civil Procedure
or local rules, save the discussion, infra. Indeed, as Defendants suggest in their response to
Plaintiffs’ Motion to Remand, Plaintiffs are actively litigating this matter now that the case is in
federal court. See (ECF No. 51 at 12). There is no indication that Plaintiffs are uninterested in
participating in the judicial process. Thus, a variety of less drastic sanctions, to the extent they
may be necessary in the future, are likely to be effective. This factor weighs against involuntary
In sum, only “the most flagrant case, where the party’s noncompliance represents bad faith
and callous disregard for the authority of the district court and the Rules, [should] result in the
extreme sanction of dismissal or judgment by default.” Mut. Fed. Sav. & Loan Ass’n v. Richards
& Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989). This Court declines to make a finding of bad
faith and callous disregard here, and as such, concludes that dismissal is not warranted.
Defendants’ Motion to Dismiss is, accordingly, DENIED.
Motion to Quash Rule 30(b)(6) Deposition Notice
The Court now turns to Plaintiffs’ Motion to Quash Defendants’ Rule 30(b)(6) Deposition
Notice. (ECF No. 47). Rule 30(b)(6) permits a party to serve an entity with a notice of deposition
outlining, “with reasonable particularity,” the matter for examination. Once notice is received by
the entity it must “produce such number of persons as will satisfy the request [and] more
importantly, prepare them so that they may give complete, knowledgeable and binding answers on
behalf of the” entity. Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md. 2000)
(internal quotation omitted). The Rule 30(b)(6) procedure is meant to “curb the ‘bandying’” of
organizations where a series of organizational employees are “deposed in turn but each disclaims
knowledge of facts that are clearly known to the persons in the organization and thereby to it.”
Fed. R. Civ. P. 30(b)(6) Advisory Committee Notes. Simply put, Rule 30(b)(6) depositions exist
to pin down an entity’s testimony. See Coryn Group II, LLC v. O.C. Seacrets, Inc., 265 F.R.D.
235, 238 (D. Md. 2010).
The Court will deny Plaintiffs’ Motion to Quash without prejudice for two, related reasons.
First, it is clear that Plaintiffs failed to abide by the governing Federal Rules of Civil Procedure,
the Local Rules of this Court, and this Court’s Memorandum Concerning Discovery, (ECF No.
24), before filing the Motion. Rule 26, upon which Plaintiffs reply, requires that a party moving
for a protective order “must include a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve the dispute without court
action.” Fed. R. Civ. P. 26(c)(1) (emphasis supplied). Moreover, the Local Rules of this Court
impose a similar requirement before the filing of formal discovery motions. Local Rule 104.7
provides, in full:
Counsel shall confer with one another concerning a discovery dispute and make
sincere attempts to resolve the differences between them. The Court will not
consider any discovery motion unless the moving party has filed a certificate
reciting (a) the date, time, and place of the discovery conference, and the names of
all persons participating therein, or (b) counsel’s attempts to hold such a
conference without success; and (c) an itemization of the issues requiring resolution
by the Court.
(D. Md. 2021) (emphasis supplied).6 In addition, this Court further issued a Memorandum
Concerning Discovery soon after the matter was referred from U.S. District Judge George Russell.
(ECF No. 24). That Memorandum plainly states, “[i]n the event of a disagreement involving
discovery, prior to requesting Court intervention, Counsel are to confer with each other and
attempt to resolve or narrow the dispute. Id. at 1 (Emphasis in original). If issues remain, the
Memorandum articulates a procedure by which the parties are to raise disputes with the Court,
including the filing of a joint letter, and succinct position letters to follow not more than 24 hours
later. Id. at 1–2.
Here, Plaintiffs filed their Motion on May 6, 2021. (ECF No. 47). The Motion was not
accompanied by any certification that Plaintiffs attempted in good faith to confer, narrow, or
resolve the dispute. See Docket. Exhibits attached to Plaintiffs’ motion give a degree of
understanding as to the events preceding the Plaintiffs’ Motion. Defendants served Plaintiffs with
a Notice of Rule 30(b)(6) Deposition on March 26, 2021. (ECF No. 47-2). Plaintiffs served
objections to the Notice on April 26, 2021. (ECF No. 47-3). Counsel for both parties then engaged
in an email conversation, which touched upon many topics including Plaintiffs’ objections to
Defendants’ Notice of the Rule 30(b)(6) deposition, Plaintiffs’ unilateral cancellation of a
This Court’s local rules have recently been amended, effective July 1, 2021. Nevertheless, this provision was in
effect under the prior version of the local rules applicable at the time the scheduling order issued.
scheduled deposition involving Defendant Bore’s corporate designee, Plaintiffs’ then-proposed
motion to amend, and other logistical items. (ECF No. 47-4). On April 26, 2021, Plaintiffs
concluded a four-paragraph email to Defendants by stating, “[a]dditionally, we have not received
a response to our objections to your 30(b)(6) deposition notice for Payne’s corporate
representative. We hope to discuss this matter, hopefully agree upon the scope of the deposition,
and avoid a Motion to Quash.” Id. at 1. It appears no other communications occurred between
the parties from April 26, 2021 to May 6, 2021. After “Defendants did not provide a response,”
to the April 26 email, Plaintiffs’ Motion to Quash followed.
Perhaps indicative of the failure to confer in good faith before filing the Motion to Quash,
Defendants filed a consent motion to extend the time allowed for Defendants’ response so that the
parties could “attempt to resolve, or at least narrow, the issues raised in Plaintiffs’ Motions without
Court involvement.” (ECF No. 49). The Court granted the motion, but the parties were unable to
resolve the dispute raised in the Motion to Quash. (ECF No. 50). Nevertheless, Defendants’
response and Plaintiffs’ reply exhibits give even more context to this dispute. The very day
following the filing of the Motion—May 7, 2021—the parties conducted a telephone conference
to discuss the dispute. (ECF Nos. 53 at 7; 60 at 2). Indeed, the call appears to have been, at least
in part, helpful in narrowing the dispute; Defendants represent that “Plaintiffs’ counsel agreed to
withdraw the majority of the asserted objections.” (ECF No. 53 at 7). Plaintiffs purport to agree:
“the parties were seeming able to resolve several of the issues with the deposition notice,” after
the May 7 conference. (ECF No. 60at 2). Indeed, after the call, Plaintiffs provided Defendants
with a red-lined copy of the original deposition notice “in an attempt to memorialize what Plaintiffs
understood to be the parties’ resolution of several of the topics, and to propose resolutions to the
topics where there remained disagreement.” (ECF No. 60 at 2; 53-7). Defendants suggest the
revisions were inconsistent with the substance of the call. (ECF No. 53 at 7). Nevertheless, in the
ensuing days after the filing of the Motion to Quash, the parties began to hash out their respective
positions concerning various deposition topics.
(ECF Nos. 53-5 at 1; 60-2 at 1).
conversations were ongoing up until the day preceding the noticed deposition. (ECF No. 60-2).
A review of the parties’ submissions demonstrates the very reason the meet and confer requirement
is imposed by the Court: “to secure the just, speedy, and inexpensive determination of every action
and proceeding.” Fed. R. Civ. P. 1. Where, as here, there is a lack of good faith attempt to confer
and resolve disputes before court intervention, the purpose of the federal rules is easily frustrated
at the expense of precious judicial resources.
Second, the failure to confer in good faith before filing the Motion and the parties’
subsequent briefing has generated confusion as to which deposition topics actually remain in
dispute. Plaintiffs’ original motion moved for a protective order incorporating their previously
lodged objections to Topics 1, 6, 10, 11, 13, 14, 17, 18, 19, and 20, (ECF No. 47-1 at 3) (citing
ECF No. 47-3), and arguing that: (1) Topics 3, 5, 7, 8, 15, 16, 21, 22, 23, 24, and 25 “should be
struck as overbroad and failing to describe with reasonable particularity the matters for
examination;” (2) Topics 3, 5, 16, and 22 “restate requests for information that are made in the
Defendants’ Interrogatories and Requests for Production of Documents; and (3) Topics (b)1
through (b)25” constitute requests for production of documents which is not authorized or
permitted under Rule 30(b)(6). (ECF No. 47-1 at 4).
However, the parties’ email correspondences dated May 9, 2021, see (ECF Nos. 53-5; 602), only meaningfully discuss the propriety of Topics 10, 11, 12, 13, 18, 19, and 20. Neither
Plaintiffs’ nor Defendants’ subsequent filings identify which objections were withdrawn, and
which deposition Topics remain at issue for the Court to decide. Thus, the Court will deny
Plaintiffs’ Motion to Quash without prejudice to the right of Plaintiffs to raise the issue by
following this Court’s stated discovery procedures. See (ECF No. 24). Counsel are directed to
confer by telephone, videoconference, or in-person meeting to attempt to resolve or narrow the
remaining area of dispute. If disagreement still remains on particular deposition Topics, the Court
expects that the parties will abide by the Federal Rules, Local Rules, and this Court’s
Memorandum Concerning Discovery to bring it to the Court’s attention.
Both parties seek an award of fees for, on one hand, the filing of the Motion to Quash, and
on the other, responding to same. (ECF Nos. 53 at 16; 60 at 13). Defendants argue they are entitled
to fees for Plaintiffs filing of the Motion to Quash without following the procedures stated above.
Plaintiffs contend that fees are inappropriate because, under Rule 37(d)(2), failing to attend a
deposition is “excused” where the party failing to act has a pending motion for a protective order
under Rule 26(c).” Cognizant that “Rule 37(d) . . . gives the district court wide discretion to
impose sanctions for a party’s failure to comply with its discovery orders,” this Court will not
impose costs or award fees to either party. Instead, the parties are reminded of their obligation to
cooperate in conducting discovery, as well as to limit the cost of discovery so that it is proportional
to what is at issue in the case.
Motion to Compel
As a final matter, Plaintiffs filed a motion to compel Defendants’ responses to Plaintiffs’
first sets of interrogatories and requests for production of documents. (ECF No. 46 at 1). After
discussion between counsel, Defendants advised the Court that the matter was moot and that no
substantive response was required. (ECF No. 54 at 1). Ultimately, Plaintiffs withdrew their
Motion to Compel. (ECF No. 55 at 1). Therefore, the Court will deny same as moot.
For these reasons:
1. Defendants’ Motion to Dismiss for Lack of Prosecution (ECF No. 20) is DENIED;
2. Plaintiffs’ Motion to Compel (ECF No. 46) is DENIED AS MOOT;
3. Plaintiffs’ Motion to Quash 30(b)(6) Deposition Notice (ECF No. 47) is DENIED
WITHOUT PREJUDICE; and
4. Plaintiffs’ Motion to Remand to State Court for Lack of Subject Matter Jurisdiction (ECF
No. 48) is DENIED.
A separate order follows.
Date: July 16, 2021
J. Mark Coulson
United States Magistrate Judge
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