Mua v. California Casualty Indemnity Exchange et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/28/2016. (cc/m 9/29/2016) (jbps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOSEPHAT MUA
Plaintiff,
v.

Civil Action No. ELH-16-3267

CALIFORNIA CASUALTY INDEMNITY
EXCHANGE, et. al.
Defendants.
MEMORANDUM
On April 28, 2016, Josephat Mua, the self-represented plaintiff, filed suit in the Circuit
Court for Montgomery County against a host of defendants: California Casualty Indemnity
Exchange; Marsden & Seledee; O’Neal Firm, LLP; Thatcher Law Firm; Mitchell I. Batt; Bryan
Chapman; Raouf Abdullah; Robert E. Cappell; C. Sukari Hardnett; Bradford Associates; Pessin
Katz Law, P.A.; Maryland State Education Association; Association of Supervisory &
Administrative School; Shani K. Whisonant, Esq.; O’Malley, Miles, Nylen & Gilmore, P.A.;
and the Maryland State Department of Education. ECF 2-1 (Second Amended Complaint); see
also ECF 1 (Notice of Removal) at 7, ¶ 9.

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He alleges, inter alia, “wrongful termination

through hostile work environment in violation of Title VI, Title VII of the Civil Rights Act of
1964, due process violation under 42 U.S.C. § 1983 as well as violations of Maryland State Code
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Mua has submitted only the Second Amended Complaint and not the original
Complaint. The Certificate of Service indicates that the motion to amend was mailed by Mua on
September 21, 2016. There is no indication that leave to amend was granted by the Circuit Court
for Montgomery County. Thus, it is not clear that the Second Amended Complaint is the
operative pleading.

§ 20-60 1 et seq., the Maryland Fair Employment Practices Act (“FEPA”).” ECF 2-1. Mua also
asserts, inter alia, retaliation, conspiracy, unjust enrichment, breach of contract, abuse of
process, fraud, and negligent misrepresentation. See ECF 2-1.2 This case is one of several that
Mua has filed in this Court. See, e.g., ELH-ECF 16-3247; ELH-16-1435; PJM-15-0060.
On September 27, 2016, the plaintiff removed the case sub judice to this Court, pursuant
to 28 U.S.C. §§ 1441(a) and 1446. ECF 1. Plaintiff asserts in the Notice of Removal that this
Court possesses subject matter jurisdiction based on federal question jurisdiction, also known as
“arising under” jurisdiction. ECF 1 at 9-10, ¶¶ 21-22; see 28 U.S.C. § 1331. In addition, he
claims in his suit that there is “complete diversity of citizenship” (ECF 2-1, ¶ 23), although the
other allegations in the Amended Complaint plainly indicate otherwise. See, e.g., ECF 2-1, ¶¶ 1,
5. Mua also states that he seeks to consolidate the case sub judice with Mua v. Maryland, ELH16-1435. ECF 1 at 1-2.
The Second Amended Complaint exceeds 70 pages, and contains 29 counts. As noted,
Mua has named 16 defendants, some of whom he has previously sued in state court and in this
Court.
Federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent
a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).
Indeed, a federal court has “an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94
(2010); see also Sucampo Pharmaceuticals, Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548 (4th
Cir. 2006). With regard to removed cases, 28 U.S.C. § 1447(c) states: “If at any time before

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Mua also submitted a Motion for Leave to Proceed in forma pauperis. ECF 5. I shall
grant the Motion.
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final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”
Section 1441(a) of 28 U.S.C. provides:
Except as otherwise expressly provided by Act of Congress, 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, to the
district court of the United States for the district and division embracing the place
where such action is pending. (Emphasis added).
Section 1446(a) of 28 U.S.C. states:
A defendant or defendants desiring to remove any civil action or criminal
prosecution from a State court shall file in the district court of the United States
for the district and division within which such action is pending a notice of
removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and
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. (Emphasis added).
As the plain language of these statutes indicates, the right of removal is vested
exclusively in a defendant. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104-109
(1941) (stating that Congress intended to limit removal under section 71 of the Judicial Code
(now 28 U.S.C. § 1441) to defendants only and that a suit in which a counterclaim is filed is not
removable by a plaintiff); Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 863 (2d Cir.
1988) (“Quite simply, a party who is in the position of a plaintiff cannot remove”); In re Walker,
375 F.2d 678, 678 (9th Cir. 1967) (per curiam) (“No right exists in favor of a person who, as
plaintiff, has filed an action in the state court, to cause the removal of such action to a federal
court.”); Geiger v. Arctco Enterprises, Inc., 910 F. Supp. 130, 131 (S.D.N.Y. 1996) (“It is clear
beyond peradventure of a doubt that the right of removal is vested exclusively in defendants. A
plaintiff simply may not remove an action from a state court pursuant to 28 U.S.C. §§ 1441(a)
and 1446(a)….”).

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“The Supreme Court has referred to this restriction as jurisdictional.” Moses v. Ski
Shawnee, Inc., A. 00-3447, 2000 WL 1053568, at *1 (E.D. Pa. July 31, 2000); see Shamrock Oil
& Gas Corp., 313 U.S. at 107 (restriction to defendants of right of removal “indicat[es] the
Congressional purpose to narrow the federal jurisdiction on removal”). Therefore, I shall
remand this case to the Circuit Court for Montgomery County, based on lack of jurisdiction.
An Order follows.

Date: September 28, 2016

/s/
Ellen Lipton Hollander
United States District Judge

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