Wallace v. Trost et al

Filing 32

MEMORANDUM OPINION (c/m to Plaintiff 3/26/13 sat). Signed by Chief Judge Deborah K. Chasanow on 3/26/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANDREW SCOTT WALLACE
:
v.

:

Civil Action No. DKC 13-0101

:
JEFFREY THOMAS TROST, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
remand filed by Plaintiff Andrew Scott Wallace (ECF No. 24) and
motions

to

Stephen

G.

dismiss

filed

Diamantoni,

by
and

Defendants

William

Diamantoni

&

Vollmar,

Associates

II,

Family

Practice, P.C. (collectively, “the Diamantoni defendants”) (ECF
No. 12), and Jeffrey Thomas Trost (ECF No. 14).

The relevant

issues have been briefed and the court now rules pursuant to
Local Rule 105.6, no hearing being deemed necessary.

For the

reasons that follow, the motion to remand will be denied and the
motions to dismiss will be granted.1

1

Plaintiff also filed a motion to strike (ECF No. 25), in
which he appears to argue that, because the case was untimely
removed, Trost’s motion to dismiss should be stricken. (ECF No.
25).
In light of the ruling on his motion to remand, this
motion will be denied as moot. On March 18, Plaintiff filed a
motion for entry of default against Trost, citing that
defendant’s failure to answer the complaint.
(ECF No. 31).
Entry of default is only available, however, where a defendant
has “failed to plead or otherwise defend,” Fed.R.Civ.P. 55(a),
and Trost timely filed a motion to dismiss.
Thus, Plaintiff’s
motion for entry of default will be denied.

I.

Background
Plaintiff,

proceeding

pro

se,

commenced

this

action

on

November 2, 2012, by filing a complaint in the Circuit Court for
Calvert County, Maryland.

The case was later transferred to the

Circuit Court for Prince George’s County, and, on January 9,
2013, the Diamantoni defendants removed to this court on the
basis

of

diversity

of

citizenship.

The

notice

of

removal

recites that “Plaintiff is a citizen of Maryland while [all
defendants] are citizens of the Commonwealth of Pennsylvania”;
that

the

amount

in

controversy

exceeds

the

jurisdictional

minimum of $75,000; that the Diamantoni defendants received the
complaint on December 11, 2012 (although they do not concede
proper

service);

and

consented to removal.
On

January

16,

that

Trost,

the

remaining

defendant,

(ECF No. 1 ¶¶ 12, 13, 15, 19).2
2013,

the

Diamantoni

defendants

filed

a

motion to dismiss for lack of personal jurisdiction or, in the
alternative, for failure to state a claim.

(ECF No. 12).

On

the same date, Trost separately moved to dismiss, adopting the
arguments advanced by the Diamantoni defendants in their motion
papers.

(ECF No. 14).

On February 19, Plaintiff filed papers

2

The Diamantoni defendants separately filed several
exhibits, including an email from Trost, dated January 9, 2013,
stating, “I give consent to removal in regards to the Wallace
case.” (ECF No. 6). On January 24, in response to the court’s
standing order concerning removal, Trost confirmed that he
“expressly consented to the removal” on January 9. (ECF No. 18
¶ 5).
2

opposing Defendants’ motions (ECF No. 23), as well as his motion
to remand (ECF No. 24).
II.

Motion to Remand
Plaintiff

challenges

the

sufficiency

of

the

notice

of

removal in several respects.

He argues that insofar as the

removal

Defendants

notice

Pennsylvania,

reflects

it

is

that

insufficient

to

are

“residents”

establish

that

they

of
are

citizens of that state, and, therefore, that Defendants have not
satisfied

the

requirements

for

diversity

jurisdiction.

He

further contends that Trost’s original consent to removal was
neither sufficiently formal, nor timely.
On a motion to remand, the court must “strictly construe
the removal statute and resolve all doubts in favor of remanding
the case to state court,” reflecting the reluctance of federal
courts

“to

court.”

interfere

with

matters

properly

before

a

state

Richardson v. Phillip Morris Inc., 950 F.Supp. 700,

701-02 (D.Md. 1997) (internal quotation omitted).

“The federal

removal statute allows a defendant to remove to federal district
court ‘any civil action brought in a State court of which the
district

courts

jurisdiction.’”

of

the

United

States

have

original

Davis v. North Carolina Dep’t of Corrections,

48 F.3d 134, 138 (4th Cir. 1995) (quoting 28 U.S.C. § 1441(a)).
Pursuant to 28 U.S.C. § 1332(a)(1), “[t]he district courts shall
have original jurisdiction of all civil actions where the matter
3

in controversy exceeds the sum or value of $75,000, exclusive of
interests and costs, and is between . . . citizens of different
States[.]”
Defendants removing a case from state court are required to
file a signed notice of removal “containing a short and plain
statement of the grounds for removal, together with a copy of
all process, pleadings, and orders served upon such defendant or
defendants in such action.”
contained

in

requirements

§

1446(a)

for

notice

28 U.S.C. § 1446(a).
is

“deliberately

pleading

Federal Rules of Civil Procedure.”

found

in

The language

parallel
Rule

to

8(a)

the

of

the

Ellenburg v. Spartan Motors

Chassis, Inc., 519 F.3d 192, 199 (4th Cir. 2008).
[J]ust
as
a
plaintiff’s
complaint
sufficiently
establishes
diversity
jurisdiction if it alleges that the parties
are of diverse citizenship and that the
matter in controversy exceeds, exclusive of
interest and costs, the sum specified by 28
U.S.C. § 1332, so too does a removing
party’s
notice
of
removal
sufficiently
establish jurisdictional grounds for removal
by making jurisdictional allegations in the
same manner.
Ellenburg,

519

removed).

Thus,

pleading

F.3d

standard

a

at

200

notice

“than

(internal

of

the

removal

one

drafting an initial complaint.”

marks
is

imposed

and

held
on

a

to

citations
no

higher

plaintiff

in

Joyner v. A.C. & R. Insulation

Co., Civ. No. CCB-12-2294, 2013 WL 877125, at *5 (D.Md. Mar. 7,
2013) (quoting Ellenburg, 519 F.3d at 200).
4

The representations contained in Defendants’ removal papers
are

sufficient

diversity

of

asserts,

that

to

demonstrate

citizenship.

jurisdiction

“state
depends

citizenship

and

federal

While

citizenship
not

domicile,”

on

it
for

jurisdiction
is

on

true,

as

Plaintiff

purposes

of

diversity

on

national

residence,

Axel

based

but

Johnson,

Inc.

v.

Carroll

Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998), Defendants’
notice of removal explicitly recites that Defendants “are all
citizens of the Commonwealth of Pennsylvania” (ECF No. 1 ¶ 12).
When combined with the more specific assertions that each of the
“individual natural person” defendants reside in Pennsylvania
and are “deemed . . . citizen[s]” of that state, and that the
corporate defendant is organized under the laws of Pennsylvania
with a principal place of business there, the removal notice
sufficiently demonstrates Defendants’ citizenship.
¶¶ 7-10).3
Plaintiff
controversy

(ECF No. 1

Because the notice of removal further reflects that
is

a

Maryland

exceeds

the

citizen

and

jurisdictional

that

the

minimum,

amount
it

in

contains

sufficient allegations to establish diversity jurisdiction in
this court.

See 28 U.S.C. § 1332(a).

3

Indeed, the complaint lists Pennsylvania addresses for all
defendants; recites that Trost, the principal tortfeasor,
“practiced out of the medical offices of Defendant Diamantoni &
Associates, of Lancaster, Pennsylvania” (ECF No. 2 ¶ 1); and
alleges tortious conduct occurring in that state.
5

The
removal.

notice

also

sufficiently

shows

Trost’s

consent

to

Pursuant to 28 U.S.C. § 1446(b)(2), “all defendants

who have been properly joined and served must join in or consent
to the removal of the action.”

Here, the notice itself reflects

that the Diamantoni defendants “obtained consent from Dr. Trost
to remove this case” (ECF No. 1 ¶ 18), as does an attached email
purportedly drafted by Trost on the date of removal (ECF No. 6).
As Judge Motz explained in Mayo v. Board of Educ. of Prince
George’s County, 797 F.Supp.2d 685, 688 (D.Md. 2011),
Nothing in 28 U.S.C. § 1441 or § 1446
imposes a requirement that a defendant
submit a writing to the court reflecting
consent to removal.
All that the removal
statute requires is that a defendant consent
to removal. . . . [I]t may be assumed that
generally attorneys will act professionally
and will not represent in a notice of
removal that another defendant has consented
to the removal unless that defendant has, in
fact,
consented,
either
orally
or
in
writing.
Thus,

regardless

of

the

effect

of

Trost’s

email,

the

mere

assertion by the Diamantoni defendants, through counsel, that
Trost consented to removal was sufficient.
Plaintiff’s challenge to the timeliness of removal appears
to be contingent on the success of his argument that the notice
of

removal

Plaintiff
until

was

insufficient

contends

January

24,

to

that

Trost’s

2013,

when

establish
consent

his

6

Trost’s

was

counsel

not

consent.

established

responded

to

the

court’s standing order concerning removal more than thirty days
after he was served with the complaint.

See 28 U.S.C. § 1446(b)

(requiring that a notice of removal be filed within thirty days
after receipt of the initial pleading by the defendant).

As

noted, however, the removal notice was sufficient to establish
Trost’s

consent

to

removal.

The

record

reflects

that

the

complaint was served on Trost on December 11, 2012, and received
by the Diamantoni defendants on December 12, 2012.

Therefore,

the notice of removal, filed on January 9, 2013, was timely.
See

28 U.S.C. § 1446(b)(2)(C) (“If defendants are served at

different times, and a later-served defendant files a notice of
removal,
even

any

though

earlier-served
that

defendant

earlier-served

may

defendant

consent
did

not

to

removal

previously

initiate or consent to removal”).
In

sum,

Defendants’

notice

of

removal

alleged

all

requirements for establishing federal diversity jurisdiction; it
effectively established Dr. Trost’s consent to removal; and the
action was timely removed.

Accordingly, Plaintiff’s motion to

remand will be denied.
III. Motions to Dismiss
Defendants

move

to

dismiss

for

lack

of

personal

jurisdiction or, in the alternative, for failure to state a
claim.

Because the court will find that personal jurisdiction

7

is lacking, it does not reach Defendants’ alternative ground for
dismissal.4
When a court’s power to exercise personal jurisdiction is
challenged by a motion under Federal Rule of Civil Procedure
12(b)(2), “the jurisdictional question is to be resolved by the
judge, with the burden on the plaintiff ultimately to prove
grounds for jurisdiction by a preponderance of the evidence.”
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334

4

It bears mention, however, that the complaint appears to
be time-barred.
Although the legal basis is difficult to
discern, Plaintiff seeks damages resulting from an alleged
adulterous affair between Trost and Plaintiff’s ex-wife during
the course of her marriage to Plaintiff. The complaint does not
reflect the dates of this conduct, but declarations submitted by
Trost and Plaintiff’s ex-wife indicate that the affair ended in
February 2004.
The court may not consider outside evidence in
connection with a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), see Kress v. Food Employers Labor Relations Ass’n, 217
F.Supp.2d 682, 684 (D.Md. 2002), but it may take judicial notice
of publically available records, see Waugh Chapel South, LLC v.
United Food & Commercial Workers Union Local 27, 855 F.Supp.2d
476, 486 (D.Md. 2012). Court records reflect that Annette Renee
Wallace divorced Andrew Scott Wallace by a judgment of absolute
divorce entered by the Circuit Court for Calvert County,
Maryland, on March 9, 2006.
Even assuming that a sexual
relationship between Trost and Ms. Wallace extended beyond that
date, as Plaintiff suggests, it was no longer an adulterous
relationship.
Thus, Plaintiff’s complaint, filed approximately
six years and eight months after the divorce, is likely barred
by the applicable statute of limitations.
Curiously, the
complaint alleges that, on December 25, 2012 – i.e. nearly two
months after the complaint was filed – that Trost, during a
telephone conversation with Ms. Wallace, made an “implied
threat” regarding a “mysterious fire” at Plaintiff’s home two
days earlier. (ECF No. 2, at 7). Insofar as the same “threat”
was referenced in a letter from Plaintiff’s counsel in the
divorce proceeding, dated October 24, 2007, the date indicated
in the complaint appears to be inaccurate. (ECF No. 23-1).
8

F.3d 390, 396 (4th Cir. 2003) (internal citation omitted).

If

jurisdiction turns on disputed facts, the court may resolve the
challenge after a separate evidentiary hearing, or may defer
ruling pending receipt at trial of evidence relevant to the
Combs v. Bakker, 886 F.2d 673, 676 (4th

jurisdictional question.
Cir. 1989).

If the court chooses to rule without conducting an

evidentiary

hearing,

relying

solely

on

the

basis

of

the

complaint, affidavits, and discovery materials, “the plaintiff
need only make a prima facie showing of personal jurisdiction.”
Carefirst,
plaintiff

334
has

F.3d
met

at

its

396.

In

burden,

all

determining

whether

jurisdictional

the

allegations

must be construed in the light most favorable to the plaintiff,
and

the

most

favorable

inferences

existence of jurisdiction.

must

be

drawn

for

the

See New Wellington Fin. Corp. v.

Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005).
Where
court

may

a

defendant

exercise

is

a

nonresident,

personal

a

jurisdiction

federal
only

if

district
“(1)

an

applicable state long-arm statute confers jurisdiction and (2)
the

assertion

of

that

jurisdiction

constitutional due process.”

Code

Ann.,

Cts.

&

Jud.

consistent

with

Nichols v. G.D. Searle & Co., 991

F.2d 1195, 1199 (4th Cir. 1993).
Md.

is

The Maryland long-arm statute,
Proc.

§

6-103,

authorizes

the

exercise of personal jurisdiction to the limits permitted by the
Due Process Clause of the Fourteenth Amendment.
9

See ALS Scan,

Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th
Cir. 2002) (citing Androutsos v. Fairfax Hosp., 323 Md. 634, 637
(1991)).

This broad reach does not suggest that analysis under

the long-arm statute is irrelevant; rather, it reflects that,
“to the extent that a defendant’s activities are covered by the
statutory language, the reach of the statute extends to the
outermost

boundaries

of

the

due

process

clause.”

Dring

v.

Sullivan, 423 F.Supp.2d 540, 545 (D.Md. 2006) (quoting Joseph M.
Coleman & Assocs., Ltd. v. Colonial Metals, 887 F.Supp. 116,
118-19 n. 2 (D.Md. 1995)); see also Mackey v. Compass Mktg.,
Inc.,

391

Md.

117,

141

n.

6

(2006)

(although

the

“long-arm

statute is coextensive with the limits of personal jurisdiction
set by the due process clause,” it is not “permissible to simply
dispense with analysis under the long-arm statute”).
the

long-arm

specifically

prong
identify

of
a

the

analysis,

statutory

a

provision

To satisfy

plaintiff
that

must

authorizes

jurisdiction, either in his complaint or in opposition to a Rule
12(b)(2) motion.

See Ottenheimer Publishers, Inc. v. Playmore,

Inc., 158 F.Supp.2d 649, 652 (D.Md. 2001); Johansson Corp. v.
Bowness Constr. Co., 304 F.Supp.2d 701, 704 n. 1 (D.Md. 2004).5

5

The Maryland long-arm statute provides, in relevant part:
(a) If jurisdiction over a person is based
solely upon this section, he may be sued
only on a cause of action arising from any
act enumerated in this section.
10

Plaintiff

has

failed

to

make

the

requisite

personal jurisdiction for any of the defendants.

showing

of

According to

the complaint, the corporate defendant is a medical practice
based in Lancaster, Pennsylvania, and the individual defendants

(b)
A
court
may
exercise
personal
jurisdiction over a person, who directly or
by an agent:
(1) Transacts any business or performs any
character of work or service in the State;
(2) Contracts to supply goods, food,
services, or manufactured products in the
State;
(3) Causes tortious injury in the State by
an act or omission in the State;
(4) Causes tortious injury in the State or
outside the State by an act or omission
outside the State if he regularly does or
solicits business, engages in any other
persistent course of conduct in the State
or derives substantial revenue from goods,
food, services, or manufactured products
used or consumed in the State;
(5) Has an interest in, uses, or possesses
real property in the State; or
(6) Contracts to insure or act as surety
for, or on, any person, risk, contract,
obligation,
or
agreement
located,
executed, or to be performed within the
State at the time the contract is made,
unless the parties otherwise provide in
writing.
Md. Code Ann., Cts. & Jud. Proc. § 6-103.

11

– doctors associated with that practice – are domiciled in that
state.

There

is

no

indication

whatsoever

of

between any defendant and the State of Maryland.

any

contacts

The complaint,

which relates largely to adulterous conduct between Trost and
Plaintiff’s wife during her marriage to Plaintiff, does allege
that at least some of this conduct occurred in Ms. Wallace’s
home.

In his opposition papers, Plaintiff suggests that, at the

relevant time, Ms. Wallace resided in Maryland.
7).

In

reply,

however,

Trost

explains

(ECF No. 23, at
that

Plaintiff’s

contention is based on a misreading of a deposition transcript
in the divorce proceeding, during which Trost testified that he
visited Ms. Wallace at her home in Pennsylvania and that she
later told him, in an e-mail after the relationship ended, that
she had moved to Maryland.
and

Ms.

“[e]very

Wallace
physical

have

(ECF No. 28, at 5).

provided

meeting

declarations

and

interaction”

Indeed, Trost
affirming

that

between

them

“occurred in Pennsylvania” and that none occurred in Maryland.
(ECF Nos. 28-1, 28-2).

According to the complaint, the tortious

conduct allegedly committed by the other defendants occurred at
the medical office in Pennsylvania, and Plaintiff does not argue
otherwise in his motion papers.

Because Plaintiff does not cite

any provision of the Maryland long-arm statute, nor does any
appear to be applicable, he has failed to establish personal

12

jurisdiction

over

the

defendants.

Accordingly,

Defendants’

motions to dismiss will be granted.
IV.

Conclusion
For

will

be

granted.

the

foregoing

denied

and

reasons,

Defendants’

Plaintiff’s
motions

to

motion
dismiss

to

remand

will

A separate order will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

13

be