Mostofi v. Capital One, N.A.

925 F. Supp. 2d 747, 2013 WL 692776, 2013 U.S. Dist. LEXIS 26176
CourtDistrict Court, D. Maryland
DecidedFebruary 25, 2013
DocketCase No. RWT 12-cv-2398
StatusPublished

This text of 925 F. Supp. 2d 747 (Mostofi v. Capital One, N.A.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mostofi v. Capital One, N.A., 925 F. Supp. 2d 747, 2013 WL 692776, 2013 U.S. Dist. LEXIS 26176 (D. Md. 2013).

Opinion

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Background

On October 24, 2011, Plaintiffs, Dean Mostofi and Young Sun Kim, filed a pro se Bill of Complaint in the Circuit Court for Montgomery County, Maryland, against Defendants, Capital One, N.A. (“Capital One”), and Capital One employees Jon Duckworth and Tina Register. (Doc. No. 2). Plaintiffs assert that Defendants took unlawful action with respect to Plaintiffs’ joint checking account, primarily by enforcing a withholding order issued by an out-of-state garnishor against Plaintiffs’ account in Maryland. (Doc. No. 17-2, ¶ 7).

On June 15, 2012, Plaintiffs filed an Amended Bill of Complaint against Defendants in State court. Id. ¶ 5. Defendants concede that the “case stated by the First Amended Complaint was not removable in that it did not meet diversity jurisdiction requirements and did not contain a federal question.” Id. On August 2, 2012, Plaintiffs filed their Second Amended Complaint against Defendants in State court. Id. ¶ 6. Plaintiffs’ Second Amended Complaint included, for the first time, an assertion in Count Ten that Defendants violated the federal Electronic Fund Transfer Act (“E.F.T.A.”), 15 U.S.C. §§ 1693-1693r. See Doc. No. 1, ¶¶6-7; Second Am. Compl., Doc. No. 7, Count Ten, ¶¶ 105-110.

[749]*749On August 13, 2012, Defendants removed Plaintiffs’ State court action to this Court under 28 U.S.C. §§ 1441, 1446, claiming that Plaintiffs’ E.F.T.A. allegations in their Second Amended Complaint create a “federal question” such that this Court has original jurisdiction under 28 U.S.C. § 1331, and supplemental jurisdiction over the remaining State law claims under 28 U.S.C. § 1367. (Doc. No. 1, ¶¶ 7-11). Also on August 13, 2012, however, Plaintiffs filed in State court their Third Amended Complaint, which does not include any E.F.T.A. allegations or other claims based on federal law. See Doc. Nos. 15-11,17-2.

On August 27, 2012, Defendants filed a Motion to Strike the Third Amended Complaint. (Doc. No. 16). Defendants argue that Plaintiffs’ Third Amended Complaint is not in conformity with applicable procedural rules because Plaintiffs did not file a copy of the amended pleading in which the stricken material and new material are properly identified. Id. ¶ 2. Defendants claim that Plaintiffs did not file their Third Amended Complaint in State court in the manner required by Md. Rule 2-341(e), which carries similar requirements to those found in this Court’s local rules. Id. ¶ 4.

Based on the absence of any federal law claims in their Third Amended Complaint, Plaintiffs filed in this Court a Motion to Remand on September 7, 2012. (Doc. No. 17). Plaintiffs claim, and supply exhibits to support, that they filed their Third Amended Complaint in State court on August 13, 2012, at 8:20 a.m. Id. at 1; Id. Ex. A, Doc. No. 17-2. Plaintiffs maintain that Defendants filed their Notice of Removal in State court over three hours later on August 13, 2012, at 11:34 a.m. Id. at 2. Plaintiffs include as exhibits to their Motion time-stamped copies of their Third Amended Complaint and Defendants’ Notice of Removal in State court. Id. Ex. A, Doc. No. 17-2; id. Ex. C, Doc. No. 17^. Plaintiffs argue that their Third Amended Complaint is the operative complaint for removal, it includes State law claims but no federal law claims, and therefore this Court lacks jurisdiction and should remand the action to State court. (Doc. No. 17 at 3). On September 7, 2012, Plaintiffs also filed a Motion to Stay Briefing Schedule of Capital One, N.A.’s Motion to Strike Third Amended Complaint. (Doc. No. 18).

Defendants filed an Opposition to Plaintiffs’ Motion to Stay Briefing Schedule of Capital One, N.A.’s Motion to Strike Third Amended Complaint on September 21, 2012. (Doc. Nos. 19, 20). On the same date, Defendants filed an Opposition to Plaintiffs’ Motion to Remand. (Doc. No. 21). Plaintiffs filed a Reply to Defendants’ Opposition to Plaintiffs’ Motion to Remand (Doc. No. 22), and a Reply to Defendants’ Opposition to Plaintiffs’ Motion to Stay Briefing Schedule of Capital One, N.A.’s Motion to Strike Third Amended Complaint (Doc. No. 23) on October 9, 2012. On October 12, 2012, Plaintiffs filed an Opposition to Capital One’s Motion to Strike Third Amended Complaint. (Doc. No. 24). On October 31, 2012, Capital One, N.A. filed a Reply to Plaintiffs’ Opposition to Motion to Strike Third Amended Complaint. (Doc. No. 25). Finally, on November 8, 2012, Plaintiffs filed a Motion for Leave to File a Surreply to Capital One, N.A.’s Reply to Plaintiffs’ Opposition to Motion to Strike Third Amended Complaint. (Doc. No. 26).

Standard of Review

“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by ... the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “If at any time [750]*750before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court.” Id. § 1447(c). The Court is “obliged to construe removal jurisdiction strictly because of the ‘significant federalism concerns’ implicated.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004) (quoting Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.1994)). “If federal jurisdiction is doubtful, a remand is necessary.” Mulcahey, 29 F.3d at 151.

Analysis

Defendants claim that on Friday, August 10, 2012, they “(i) sent the Notice of Removal for filing with this Court; (ii) sent the Notice of Filing Notice of Removal for filing with the Circuit Court for Montgomery County; and (iii) and served Plaintiffs with a copy of the Notice of Removal and the Notice of Filing Notice of Removal.” (Doc. No. 21 at 2). Defendants assert that on the same day, “counsel for Defendants, in good faith and to allow Plaintiffs to avoid unnecessary expense, sent a courtesy e-mail to Plaintiffs for the purpose of alerting Plaintiffs that the Defendants had sent a Notice of Removal for filing to this Court.” Id. Defendants maintain that on Monday, August 13, 2012, “Plaintiffs raced to the Circuit Court for Montgomery County in an attempt to file a third amended complaint, removing” their federal law claim. Id.

Defendants argue that Plaintiffs’ Second Amended Complaint, which includes the federal law-based E.F.T.A.

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Bluebook (online)
925 F. Supp. 2d 747, 2013 WL 692776, 2013 U.S. Dist. LEXIS 26176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mostofi-v-capital-one-na-mdd-2013.