Thomas v. Mars, Incorporated et al

Filing 23

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 5/30/2017. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SEAN THOMAS,
Plaintiff,
v.
MARS, INCORPORATED, et al.,
Defendants.

*
*
*
*
*
*
*
*
*

Civil No.

PJM 16-3507

MEMORANDUM OPINION
I. NATURE OF CASE AND PROCEDURAL HISTORY
Sean Thomas has sued Mars, Incorporated (Mars) and Maryland CVS Pharmacy, L.L.C.
(CVS)1 (collectively, Defendants). See Compl., ECF No. 2. He alleges that on January 15, 2013,
when he began to consume a candy bar manufactured and released into the stream of commerce
by Mars, which he purchased at a CVS store in Waldorf, Maryland, he bit into a nail that was
concealed within the bar and sustained serious injury. Id. ¶¶ 4-5. He subsequently filed a
Complaint, ECF No. 2, against Defendants in the Circuit Court for Prince George’s County,
Maryland, consisting of claims of negligence, breach of warranty, and strict liability, seeking
damages in an amount in excess of $75,000. Id.  ¶¶ 6-24. CVS removed the case to this Court
based on diversity jurisdiction, see ECF No. 1, and since then, both Mars and CVS have filed
Answers. ECF Nos. 7, 8.2

1

In his Complaint, ECF No. 2, Thomas improperly sued CVS as “CVS Pharmacy, Inc.” CVS noted the
mistake in its Answer, and Thomas has corrected this mistake in his subsequent filings.
2
At one point, CVS filed a crossclaim against Mars. ECF No. 13. However, CVS withdrew the
crossclaim two months later. ECF No. 17.

1 

Earlier this year in this Court, Mars filed a Motion to Preclude Thomas’ Expert
Testimony and Rebuttal Expert Testimony. ECF No. 16. Thomas responded3 and also filed his
own Motion for Leave to File an Amended Complaint and Remand the Case to the Circuit Court
for Prince George’s County, Maryland. ECF No. 19. The Amended Complaint attached to the
Motion alters the amount of damages from an amount in excess of $75,000 to $74,500. Mars
opposes this proposed alteration of the ad damnum clause, and opposes remand of the case to
state court.
Thomas’ Motion for Leave to File an Amended Complaint and Remand the Case to the
Circuit Court for Prince George’s County, Maryland (ECF No. 19) is DENIED. The Court
DEFERS ruling on Mars’ Motion to Preclude Thomas’ Expert Testimony and Rebuttal Expert
Testimony (ECF No. 16) and requests that the parties, within 21 days, file written response to the
Court’s concerns raised herein.
II. ANALYSIS
Thomas’ Motion for Leave to File an Amended Complaint and Remand the Case to the
Circuit Court for Prince George’s County, Maryland (ECF No. 19) is easily disposed of.
Thomas failed to seek leave to file his Amended Complaint until nearly three months
after the deadline for doing so. Furthermore, it is well settled that federal jurisdiction is “fixed at
the time the . . . notice of removal is filed.” Dennison v. Carolina Payday Loans, Inc., 549 F.3d
941, 943 (4th Cir.2008). What this means is that “a court determines the existence of diversity
jurisdiction at the time the action is filed, regardless of later changes in originally crucial facts
such as the parties’ citizenship or the amount in controversy.” Porsche Cars N. Am., Inc. v.
Porsche.net, 302 F.3d 248, 255–56 (4th Cir.2002) (citation and internal quotations marks

3

In his response, Thomas states that he “is certainly amenable to extending [discovery deadlines] for the
completion of any necessary discovery.” ECF No. 21 at 3.

2 

omitted). “If, at [the time of removal], the parties are citizens of different states and the amount
in controversy exceeds $75,000, the Court has jurisdiction on the basis of diversity ‘regardless of
later changes in . . . the amount in controversy.’” Francis v. Allstate Ins. Co., 869 F.Supp.2d 663,
667–68 (D.Md.2012). “Numerous courts have concluded that federal courts retain subject matter
jurisdiction where a plaintiff amends the complaint after removal so as to place the amount in
controversy below the jurisdictional threshold.” Ross v. Mayor & City Council of Baltimore,
2014 WL 2860580, at *6 (D. Md. June 20, 2014) (collecting cases).
In short, Thomas cannot alter the amount in controversy in order to oust the Court of
diversity jurisdiction, and his Motion is denied.
As for Mars’ Motion to Preclude, it is clear that Thomas has been remiss in not filing his
Rule 26(a)(2) disclosures within the applicable deadlines.4 However, a trial date has yet to be set
in this case. Accordingly, while the Court is at present inclined to deny Defendants’ Motion, it
will do so only if Thomas is prepared to meet the following conditions: (1) Thomas must pay
Defendants the costs related to the taking of Thomas’ expert’s deposition including the cost of
the expert’s time, if any (but excluding Defendants’ attorneys’ fees and costs); (2) Thomas must
pay Defendants the reasonable costs related to the retention and deposition of an expert by
Defendants, including the reasonable cost of the expert’s time, if any (but excluding Defendants’
attorneys’ fees and costs); (3) the parties shall consult with one another and agree on extended
discovery dates.5 The Court believes that if Thomas agrees to each of these conditions,
Defendants will not otherwise be disadvantaged with respect to the merits of their case. See S.

4

Thomas’ oversight, which his counsel admits, is not a trivial one. Parties are expected to comply with
scheduling orders and their deadlines (absent extenuating circumstances), and, at the very least, are
obliged to file timely motions requesting extensions when necessary.
5
Consistent with the Court’s proposed conditions herein, Defendants shall, within seven days, present to
Thomas a bill of projected costs along with proposed amended discovery dates. The parties shall then,
within 14 days, affirm—if such be the case—that they have reached an agreement whereby Thomas
commits to meeting the Court’s conditions and the discovery dates are extended.

3 

States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595-96 (4th Cir. 2003).6 If
the proposed compensation is provided by Thomas and the discovery deadlines are extended,
Defendants will be able to depose Thomas’ expert’s credentials and conduct any other expert
related discovery.
IV. CONCLUSION
For the foregoing reasons, Thomas’ Motion for Leave to File an Amended Complaint and
Remand the Case to the Circuit Court for Prince George’s County, Maryland (ECF No. 19) is
DENIED. With regard to Mars’ Motion to Preclude Thomas’ Expert Testimony and Rebuttal
Expert Testimony (ECF No. 16), the Court’s ruling is temporarily DEFERRED. The parties
SHALL, within 21 days, file status reports addressing the Court’s concerns as expressed herein.

/s/
_
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
May 30, 2017

6

See S States, 318 F.3d at 596 (laying out “the following five-factor test for determining whether
nondisclosure of evidence is substantially justified or harmless: (1) the surprise to the party against whom
the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which
allowing the testimony would disrupt the trial; (4) the [party’s] explanation . . . ; and (5) the importance of
the testimony”). Since a trial date has not been set, the delay in Thomas’ disclosures has not disrupted any
future trial. Additionally, Defendants have and will encounter no surprise or prejudice stemming from the
substance of Thomas’ expert testimony, especially given Thomas’ willingness to extend discovery
deadlines.

4