Salamanca v. Gardner et al
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/19/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ELSY N. SALAMANCA
Civil Action No. DKC 12-2287
JUSTIN TYLER GARDNER, et al.
Presently pending and ready for review in this wrongful
Salamanca, (ECF No. 85), and (2) Dennis G. Salamanca Romero,
Ernestina Salamanaca, as mother and next friend of Juan Carlos
hearing being deemed necessary.
Local Rule 105.6.
following reasons, the motions to intervene will be granted and
Gilberto Salamanca (“Gilberto”), who died on November 6, 2010
while driving his vehicle on the Baltimore-Washington Parkway in
Prince George’s County.
On June 14, 2012, Elsy, individually
and as personal representative of Gilberto’s estate, filed a
wrongful death claim against Defendants Justin Tyler Gardner,
Wilbur Lee Starks, and UPS Ground Freight, Inc. in the Circuit
accuses Gardner of operating a motor vehicle at “an excessive
Defendant Gardner’s vehicle, causing him serious injuries which
resulted in his death.”
(Id. ¶ 5).
Plaintiff made a similar
negligence claim against Defendant Starks, who also operated a
motor vehicle which struck Gilberto’s vehicle.
(Id. ¶¶ 12-17).
These actions were brought under Maryland’s Wrongful Death Law,
Md. Code Cts. & Jud. Proc. § 3-904, and sought three million
solatium, and support damages.1
On August 2, 2012, Defendants filed a notice of removal
Sections 1331 and 1441 of title 28 of the United States Code.
(ECF No. 1).
Elsy is a resident of Maryland, while Defendants
Plaintiff, on behalf of the estate, also brought a
survival action against Defendant UPS Freight.
(ECF No. 2, ¶¶
Starks, Gardner, and UPS Freight are all residents of Virginia.
The court issued a scheduling order on November 2, 2012,
deadline for dispositive pretrial motions as April 16, 2013.
(ECF No. 23).
These deadlines were subsequently extended to
June 3, 2013 and July 1, 2013, respectively.
(ECF No. 49).
Importantly for this case, it is undisputed that
Movant Dennis Salamanca Romero resides in Virginia.
filed their own wrongful death lawsuit against Defendants in the
Circuit Court for Prince George’s County on November 26, 2012.
(ECF No. 74, ¶ 7).
On August 2, 2013 and September 11, 2013, Movants filed
their motions to intervene pursuant to Rule 24 of the Federal
Rules of Civil Procedure.
(ECF Nos. 74, 85).2
their opposition on August 15, 2013, (ECF No. 77), and Movants
replied on September 3, 2013.
(ECF No. 83).
Maryland’s wrongful death statute provides that an action
Cristina Salamanca filed her motion to intervene separate
from the other Movants on September 11, 2013.
(ECF No. 85).
Defendants have not yet responded to that motion, but for the
reasons that follow, the issue is ready for resolution.
husband, parent, and child of the deceased person.”
Cts. & Jud. Proc. § 3-904(a)(1).
“Damages are awarded to the
Generally, “an action
under this subtitle shall be filed within three years after the
death of the injured person.”
Id. § 3-904(g)(1).
on November 6, 2010, putting the end of the limitations period
at November 5, 2013.
Importantly for this case, the statute mandates that “only
one action [for wrongful death] lies in respect to the death of
Id. § 3-904(f).
This rule is “designed to protect a
defendant from being vexed by several suits instituted by or on
behalf of different equitable plaintiffs for the same injury,
when all the parties could be joined in one proceeding.”
of Maryland Medical Sys. Corp. v. Muti, 426 Md. 358, 374 (2012)
(quoting Walker v. Essex, 318 Md. 516, 523 (1990) (quotation
Furthermore, Maryland Rule 15-1001(b) provides
that “[a]ll persons who are or may be entitled by law to claim
plaintiffs whether or not they join in the action.
‘to the use of’ shall precede the name of any person named as a
plaintiff who does not join in the action.”
Such “use plaintiffs” are required to be served with a copy of
the complaint and notice that they may intervene.
Md. Rule 15-
A “use plaintiff” desiring to intervene must do so
within the three-year statute of limitations.
Md. Rule 15-
Elsy’s complaint never listed the Movants as plaintiffs or
Movants contend that they were never provided
the notice required by Rule 15-1001(d), although they admit that
they became aware of Elsy’s lawsuit in August 2012.
¶¶ 4, 7).
Movants state that they did not seek to join Elsy’s
destroying diversity jurisdiction.
(ECF No. 74
(Id. ¶ 7).
allowed them to file their own lawsuit in state court without
Consequently, “they informed [Elsy] that they intended to file a
separate action in state court and invited [Elsy] to join in
(ECF No. 74, ¶ 7).
They argue that they only
Defendants’ pending motion for summary judgment in Elsy’s case
may impair or impede their ability to protect their interests
due to the principle of res judicata and the one cause of action
limit for wrongful death claims in respect of a decedent.
apprised of its progress and yet still chose to file a separate
suit in state court.
Defendants posit that Movants’ strategy
produced in the federal court action while hoping that they
could use a favorable outcome in Elsy’s lawsuit to their benefit
in state court.
Only when Defendants filed a meritorious motion
for summary judgment in Elsy’s case did Movants realize their
strategy might backfire and brought this motion to intervene.
Defendants argue that Movants’ motion should be denied because
it is untimely and would result in prejudice given the federal
case’s advanced stage and resources already expended.
77, at 6-11).
They contend that Defendants waited until July 2013
summary judgment was pending in Elsy’s case, a motion they felt
confident would be granted which they could turn around and use
against Movants in their state case.
(ECF No. 83 ¶ 6).3
Maryland law is clear that a wrongful death action must
include all known beneficiaries either as joined plaintiffs or
The Court of Appeals of Maryland has written
If Defendants knew of Dennis Salamanca Romero and his
state of citizenship prior to removal, one might question the
decision to remove in the first instance.
bringing the action.”
Waddell v. Kirkpatrick, 331 Md. 52, 64
Indeed, a “judgment should not [be] entered in the
circuit court unless it include[s] the interests of all of the
Walker, 318 Md. at 524.
one of a decedent’s beneficiaries is absent from a wrongful
death lawsuit, Maryland law requires that a judgment rendered in
favor of the beneficiary or beneficiaries who did prosecute the
suit be vacated.”
Johnson v. Price, 191 F.Supp.2d 626, 629
(D.Md. 2001) (citing Walker, 318 Md. at 523-24).
As in Johnson, to side with the Defendants and omit Movants
from this case would result in an incomplete judgment which
would eventually be vacated.
Because of the “one case” rule,
plaintiff or a ‘use plaintiff’ in a wrongful death action . . .
can be analogized to the failure to join a necessary party in an
Md.App. 438, 455 (2010), aff’d sub nom. Ace Am. Ins. Co. v.
Williams, 418 Md. 400 (2011).
Movants may intervene as of right pursuant to Rule 24, but that
misses the point.
It is not a matter of whether Movants must be
allowed to intervene if they so choose, but instead, whether
Movants must be joined as part of the action regardless of their
For that latter question, the court is to examine
whether joinder of the Plaintiffs under Rule 19 is appropriate.
(2008) (“A court with proper jurisdiction may also consider sua
sponte the absence of a required person and dismiss for failure
Plaintiff’s side because in their absence, “the court cannot
accord complete relief among existing parties.”
But joining Movants as plaintiffs would destroy
diversity, as Dennis Salamanca Romero is a resident of Virginia.
See, e.g., Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
373 (1978) (requiring complete diversity of citizenship between
each defendant and each plaintiff in order to support diversity
Consequently, the question becomes whether under
Rule 19(b) the case could and should proceed without Dennis
Salamanca Romero as a plaintiff.
Under Rule 19(b), this case cannot go forward without all
Movants being joined as plaintiffs.
Any judgment rendered in
this case in their absence would be prejudicial to the parties
that only one cause of action be brought for the death of a
Walker, 318 Md. at 524.
Elsy has an adequate remedy if the
Movants are joined: the case is remanded to the state court.
Finally, there is no way to shape the relief in this case to
Maryland requirement that only one wrongful death action lies
for the death of a person.”
Johnson, 191 F.Supp.2d at 630.
Similar to the Plaintiffs in Johnson, all known beneficiaries
are indispensable parties in a Maryland wrongful death action.
Regardless of the resources already expended in this case, it
would be more wasteful to ignore the facts and refuse to allow
Movants to join this case as any judgment eventually rendered by
the court would be vacated for not resolving the claims of all
beneficiaries, who “shall be named as plaintiffs.”
Md. Rule 15-
action among the existing parties.
Fed.R.Civ.Pro. 19(b); see
also Ward v. Walker, 725 F.Supp.2d 506, 511-12 (D.Md. 2010)
(dismissing action where joined plaintiff destroys diversity);
complaint must be remanded to state court.
28 U.S.C. § 1447(c)
district court lacks subject matter jurisdiction, the case shall
Even if Movants were passive actors who should have been
For the foregoing reasons, the motions to intervene filed
Salamanca Romero, Veronica E. Salamanca Romero, and Ernestina
Salamanaca, as mother and next friend of Juan Carlos Salamanca,
a minor, will be granted and the case shall be remanded to the
Circuit Court for Prince George’s County.
A separate order will
DEBORAH K. CHASANOW
United States District Judge
named merely as “use plaintiffs,” remand to the state court
would have been proper. See Williams, 192 Md.App. at 455.
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