Barber v. Montgomery County Government et al

Filing 47

MEMORANDUM OPINION AND ORDER denying 36 Plaintiff's Motion to Remand. Signed by Judge Frederick P Stamp, Jr on 1/24/2018. (cc/m 1/24/2018 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CLAUDIA BARBER,
Plaintiff,
v.

Civil Action No. 8:17CV1948
(STAMP)

MONTGOMERY COUNTY GOVERNMENT
and BOARD OF EDUCATION FOR
MONTGOMERY COUNTY PUBLIC SCHOOLS,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
I.
This

is

a

civil

Background

rights

case

arising

out

of

an

violation of Title VII of the Civil Rights Act of 1964.

alleged
The pro

se1 plaintiff, Claudia Barber, filed this civil action in the
Circuit Court for Montgomery County, Maryland. The defendants, the
Board of Education for Montgomery County Public Schools (the “Board
of

Education”)

and

Montgomery

County

Government

(the

“County

Government”), removed the case to the United States District Court
for the District of Maryland, citing federal question jurisdiction
pursuant to 28 U.S.C. § 1331.

The plaintiff filed an amended

complaint in the United States District Court, and the case was
later reassigned to the undersigned judge.

In her single-count

amended complaint, the plaintiff alleges that she is a 57-year-old
1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

African American female who applied for several positions as a
substitute teacher and assistant general counsel for employment and
labor law with the Board of Education.

The plaintiff further

alleges that she was overqualified for all of the positions but
that she was not hired on the basis of her race, sex, age, and
color, in violation of Title VII.

The plaintiff has now filed a

motion to remand,2 which is fully briefed and ripe for decision.
For the following reasons, the plaintiff’s motion to remand is
denied.
II.

Applicable Law

A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
the

amount

in

controversy

exceeds

$75,000.00,

exclusive

interests and costs pursuant to 28 U.S.C. § 1332(a).
seeking

removal

jurisdiction.

bears

the

burden

of

establishing

of

The party
federal

See Mulcahey v. Columbia Organic Chems. Co., Inc.,

29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly
construed, and if federal jurisdiction is doubtful, the federal

2

The motion is titled “Plaintiff’s Motion to Stay, Strike,
Vacate, and/or Remand this Case to State Court,” but this Court has
construed the motion as a motion to remand.
2

court must remand.

Id.

State law complaints usually must stay in

state court when they assert what appear to be state law claims.
See Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004).
Further, the court is limited to a consideration of facts on the
See Lowrey v. Alabama Power Co.,

record at the time of removal.

483 F.3d 1184, 1213-15 (11th Cir. 2007) (stating that in assessing
whether removal was proper, the district court has before it only
the limited universe of evidence available when the motion to
remand is filed); Marshall v. Kimble, No. 5:10CV127, 2011 WL 43034,
at *3 (N.D. W. Va. Jan. 6, 2011) (“The defendant’s removal cannot
be based on speculation; rather, it must be based on facts as they
exist at the time of removal.”).
III.

Discussion

There is no dispute that federal question jurisdiction exists.
The only issue is whether the case must be remanded on the basis of
the defendants’ delayed notice of removal to the state court and
other alleged defects in the removal of this civil action.

The

plaintiff first argues that the removal was not properly effected
because, although the defendants filed their notice of removal in
federal court on July 13, 2017, the state court did not receive
written notice of the removal until December 13, 2017.3

3

The state

The state court never actually received the written notice by
mail, although the defendants state that, upon information and
belief, the notice was mailed to the state court on the date of
removal, July 13, 2017.
December 13, 2017 is the date the
defendants filed their Defendants’ Response in Opposition to
3

court case remained open until November 22, 2017, on which date the
state court entered an order of dismissal after the parties did not
appear at the status/pretrial hearing scheduled for November 21,
2017, in the state court.

The state court docket (ECF No. 29-2)

reveals that no significant action occurred in the state court case
between July 13, 2017, and the order of dismissal.
After the November 22, 2017 state court order of dismissal,
the plaintiff filed a motion to vacate the dismissal order.
No. 29-3.

ECF

The defendants filed a response in opposition to the

plaintiff’s

motion.

ECF

No.

40-1.

In

their

response,

the

defendants attached the notice of removal and the correspondence
that was intended to notify the state court of the removal.
Although the state court had not previously received the written
notice of removal, the correspondence was dated July 13, 2017. ECF
No. 40-1 at 20.

Upon reviewing the July 13, 2017 notice of removal

attached to the defendants’ response, the state court vacated its
November

22,

2017

administratively

order

closed

of
as

dismissal
of

July

jurisdiction pursuant to the removal.

and
13,

marked
2017,

the

for

matter

lack

of

ECF No. 44-1.

“The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant, through

Plaintiff’s Motion to Vacate Dismissal and Request for Alternate
Relief in the state court, to which they attached as Exhibit B the
intended correspondence notifying the state court of the removal.
ECF No. 40-1 at 20.
4

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).

“Promptly after the filing

of such notice of removal of a civil action the defendant or
defendants shall give written notice thereof to all adverse parties
and shall file a copy of the notice with the clerk of such State
court, which shall effect the removal . . . .”

28 U.S.C.

§ 1446(d).
The United States District Court for the Western District of
Missouri has found that Ҥ 1446 does not state that removal must be
effected within 30 days; it states that the defendant must file a
notice of removal with the district court within 30 days.” Bohanna
v. Hartford Life & Acc. Ins. Co., 848 F. Supp. 2d 1009, 1013-1014
(W.D. Mo. 2012) (emphasis added).

The Bohanna court further found

that “[t]he only statutory time limit regarding filing notice with
the state court is that it must be done promptly after the filing
of the notice with the district court.”

Id. at 1014 (emphasis

added).
In Bohanna, the plaintiff argued that the defendant’s notice
to the state court was not sufficiently prompt because 67 days
elapsed between the filing of the notice in the federal court and
the filing of the notice in the state court.

Id.

However, the

court found that the defendant’s delay in filing the notice with
the state court did not warrant remand.

5

Id. (citing Delgado v.

Bank of Am. Corp., No. 1:09CV1638, 2009 WL 4163525, at *8-9 (E.D.
Cal. Nov. 23, 2009)).

In reaching this conclusion, the court

reasoned that “no significant action was taken in state court
during the 67-day time period such that either party has been
adversely affected by the delay.”

Id.

In the instant case, the period of delay between the filing of
the notice in federal court and the filing of the notice in state
court was 153 days.

Although the period of delay in this case was

longer than 67 days, this Court finds that the Bohanna court’s
reasoning still applies.

During the 153-day delay, nothing of

significance happened in the state court case besides the November
22, 2017 order of dismissal that was issued after no parties
appeared

at

the

scheduled

hearing.

ECF No. 29-2.

November

21,

2017

status/pretrial

Thus, this Court does not find that the

plaintiff was prejudiced by the delay.
This Court further finds that the reasoning of the Delgado
court also applies to the circumstances of this case.

The Delgado

court determined that a 56-day delay in filing the notice of
removal with the state court did not warrant remand where the
defendant failed to file the notice with the state court “through
inadvertence or mistake.”

Delgado, 2009 WL 4163525 at *9.

The

Delgado court found that the defendants “remedied their error as
soon as they learned of it and the purposes of § 1446 would not be

6

undermined by retaining jurisdiction as no state court proceedings
were conducted.”

Id.

Similarly, in the instant case, it was through inadvertence or
mistake that the notice to the state court, which was prepared on
and dated July 13, 2017, was never received by the state court.

It

is clear that written notice was prepared on the date of removal
because a copy of the letter to the Clerk of the Circuit Court for
Montgomery County, dated July 13, 2017, was filed in this Court on
July 13, 2017.

ECF No. 4.

This Court finds that the defendants in

the present case also remedied their error when they became aware
of the mistake and that no proceedings of significance occurred in
the state court in the meantime.

Accordingly, this Court finds

that remand is not warranted.
The plaintiff further asserts that the defendants failed to
file all process and pleadings with the notice of removal, in
violation of Title 28, United States Code, Section 1446(a) and
United States District Court for the District of Maryland Local
Rule 103.5.

Section 1446(a) provides:

A defendant or defendants desiring to remove any civil
action 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.

7

Local Rule 103.5 provides:
Any party effecting removal shall file with the notice
true and legible copies of all process, pleadings,
documents, and orders which have been served upon that
party.
Within thirty (30) days thereafter the party
shall file true and legible copies of all other documents
then on file in the state court, together with a
certification from counsel that all filings in the state
court action have been filed in the United States
District Court. In cases subject to electronic filing,
the copies shall be filed in accordance with the
electronic filing procedures adopted by the Court.
The plaintiff contends that the defendants failed to file the
plaintiff’s discovery documents served on the defendants, the
plaintiff’s notice of right to sue, the plaintiff’s charge of
discrimination, a scheduling order, one of the writs of summons,
the clerk’s notice of new case number, the defendants’ blank civil
non-domestic case information report form, and the plaintiff’s
completed civil non-domestic case information report.

ECF No. 46

at 6-7.
Along with the notice of removal (ECF No. 1), the defendants
also filed the original complaint filed in state court (ECF No. 2),
the June 15, 2017 state court summons to the County Government (ECF
No. 3), and the written notice of removal addressed to the state
court (ECF No. 4).

Thus, the plaintiff is correct that the

defendants did not file the other process and pleadings that she
alleges were served on the defendants.

However, this Court finds

that “the failure to include all state court pleadings and process
with the notice of removal is procedurally incorrect but is not a

8

jurisdictional defect” and, thus, does not warrant remand. Cook v.
Randolph County, Ga., 573 F.3d 1143, 1150 (11th Cir. 2009) (citing
Covington v. Indemnity Ins. Co. of N. Am., 251 F.2d 930, 933 (5th
Cir. 1958)).
The plaintiff also contends that the defendants violated
Section 1446(a) and Local Rule 103.5 by failing to file with this
Court the state court’s notice of dismissal and order of dismissal.
However, that contention is without merit because the defendants
filed the state court’s December 29, 2017 order with this Court on
January 2, 2018.
order

vacated

ECF No. 44-1.

the

state

The December 29, 2017 state court

court’s

November

22,

2017

order

of

dismissal and ordered that the matter be marked administratively
closed as of July 13, 2017, for lack of jurisdiction pursuant to
removal. The plaintiff had already filed with this Court the state
court’s November 22, 2017 order of dismissal and her motion to
vacate the order of dismissal on November 28, 2017.

ECF No. 29-1.

Additionally, the plaintiff argues that the Board of Education
did not consent to the removal, which the plaintiff alleges is
“another error and defect in Defendants’ removal efforts.” ECF No.
36-1 at 4.

However, the two defendants share counsel in this

matter, and their counsel signed the notice of removal on behalf of
both defendants.

ECF No. 1.

Thus, the Court finds that the Board

of Education did consent to the removal, and, accordingly, this
argument by the plaintiff has no merit.

9

Lastly, in her reply, the plaintiff argues that the defendants
have violated Federal Rule of Civil Procedure 11 in various ways.
However, Rule 11 requires as follows:
A motion for sanctions must be made separately from any
other motion and must describe the specific conduct that
allegedly violates Rule 11(b). The motion must be served
under Rule 5, but it must not be filed or be presented to
the court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within another
time the court sets.
Fed. R. Civ. P. 11(c)(2).
The United States District Court for the District of Maryland
Local Rules also address motions for sanctions as follows:
a)

Not to be Filed as a Matter of Course

The Court expects that motions for sanctions will not be
filed as a matter of course. The Court will consider in
appropriate cases imposing sanctions upon parties who
file unjustified sanctions motions.
b)

Responses Required Only Upon Court Order

Unless otherwise ordered by the Court, a party need not
respond to any motion filed under Fed. R. Civ. P. 11 or
28 U.S.C. § 1927. The Court shall not grant any motion
without requesting a response.
United States District Court for the District of Maryland Local
Rule 105.8.
The United States Court of Appeals for the Fourth Circuit has
found that “[i]t is clear from the language of [Rule 11] that it
imposes mandatory obligations upon the party seeking sanctions, so
that failure to comply with the procedural requirements precludes
the imposition of the requested sanctions.” Brickwood Contractors,
10

Inc. v. Datanet Eng’g, Inc., 369 F.3d 385, 389 (4th Cir. 2004).
“If a non-compliant motion nonetheless is filed with the court, the
district court lacks authority to impose the requested sanctions.”
Id.
Here,

the

plaintiff

has

not

complied

procedural requirements of Rule 11(c)(2).

with

any

of

the

First, the motion under

Rule 11 is not separate from any other motion, but rather is
included in the plaintiff’s reply memorandum to her motion to
remand.4

The plaintiff also failed to serve the motion under Rule

11 on the defendants before filing it with the district court.
Accordingly, this Court cannot consider the plaintiff’s arguments
under Rule 11 contained in her reply memorandum to her motion to
remand.
IV.

Conclusion

For the above reasons, the plaintiff’s motion to remand (ECF
No. 36) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to the
pro se litigant Claudia Barber by certified mail and to counsel of
record herein.

4

This Court recognizes that the defendants have filed a
separate motion for sanctions (ECF No. 27), which is still pending.
The plaintiff filed a response in opposition to the defendants’
motion for sanctions, and the plaintiff’s response includes a
cross-motion for sanctions. ECF No. 28. The Court will address
that motion and response in a separate order at a later time.
11

DATED:

January 24, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

12