IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICTSTATE OF MARYLAND *IN THE KANWE WEST,* Plaintiff*
JOHN HOPKINS HOSTPITAL, ET AL* Defendants*
QONTA WADDELL*FOR BALTIMORE CITY *CRIMINAL DIVISION ***********
Plaintiff, Kanwe WestNOW COMES the Defendant, Qonta Waddell, through his undersigned counselCounsel, Cassandra Costley, Assistant Public Defender, moves that this Honorable Court grant an order to remand this actiondismiss the cases against him, pursuant to 28 U.S.C. Section 1447(c) to the Circuit Court for Baltimore City, Maryland, where this action was filed Rule 4-271 and the Sixth Amendment of the United State’s Constitution. The reasons supporting this motion are set forth in the attached memorandum of law. Respectively Submitted, _______________________________ Anitra B. Washington University of Maryland School of Law 500 W. Baltimore St. October 21, 2014Baltimore, Maryland 21201 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICTSTATE OF MARYLAND *IN THE KANWE WEST,* Plaintiff*
JOHN HOPKINS HOSTPITAL, ET AL* Defendants*
QONTA WADDELL*FOR BALTIMORE CITY *CRIMINAL DIVISION ***********
Plaintiff Kanwe West, through his undersigned counsel, movestatement of facts below support that the Defendant has been denied his right to a speedy trial and therefore, is entitled to an order to dismiss by this Honorable Court to remand this action pursuant to 28 U.S.C. 1447(c), submits this memorandum of law in support of its Motion to Remand.
Plaintiff Kanwe West initially filed a single count of lack of consent action against Dr. Taylor Smith and John Hopkins Hospital relating to the surgery performed by Dr. Smith on the Mr. West. Mr. West alleges that the he was never told of the risks of infection/ surgical error prior to consenting to the surgery. Mr. West claims he would not have consented to the procedure had he been fully informed of the risks.
On June 22, 2012, Mr. West had back surgery. The Defendant, Dr. Taylor Smith performed the procedure at John Hopkins Hospital, the No. 1 hospital in Baltimore City, Maryland. Mr. West was permitted to leave the John Hopkins Hospital on June 24, 2012. About two weeks after Mr. West was discharged from John Hopkins Hospital, Mr. West began to have problems with the surgical wound site. Mr. West was taken to an emergency room in Los Angeles, were he diagnosed with an infection by California physicians. After treating the infection with antibiotics, California physicians determined a second follow up surgery would be needed. On July 27, 2012, Mr. West underwent the follow up surgery to explore, irrigate and debride the wound. Mr. West continued to have back and problems with the surgical wound. Mr. West was prescribed a second course of antibiotics and there was partial obliteration of the disc space and deformity of the L4-5 vertebral bodies On September 19, 2014, Mr. West filed the Complaint in the Circuit for Baltimore City, asserting claims against Dr. Smith and John Hopkins Hospital. The Complaint alleged that the Defendants failed to obtain informed consent. Mr. West is a citizen of the State of California, and Dr. Smith is a citizen of Minnesota, and John Hopkins Hospital is a Maryland entity with its place of business in Maryland. On September 22, 2014, before any Defendant was severed John Hopkins Hospital receive notice of the lawsuit filed by Mr. West through email subscription. On September 23, 2014, John Hopkins Hospital obtained a copy of the Complaint from the clerk’s office. On that date, John Hopkins Hospital filed a Notice of Removal. The stated basis for removal is the diversity of citizenship between Mr. West and the Defendants under 28 U.S.C. 1332.
The U.S. Supreme Court has held removal jurisdiction is derivative in nature. Basically, the Court states, if the “state court lacks jurisdiction of the subject matter or of the parties, the federal District Court acquires none on a removal of the case.” The Court disfavors removal and notes that Congress intends to limit removal from state to federal courts. The Fourth Circuit follows the precedence that doubts removal jurisdiction must be decided in favor of original state of jurisdiction. Establishing federal jurisdiction is burden on the party seeking removal. The Fourth Circuit uses strict scrutiny when construing removal jurisdiction “because it raises significant federalism concerns.”
28 U.S.C. 1441(a) provides that removal is appropriate only when the Federal Court has original jurisdiction. The Federal District Courts obtains original jurisdiction of all civil actions where the action is between citizens of different states and the amount in controversy exceeds $ 75, 000. Cases involving diversity also require an additional requirement, the “forum defendant rule.” The “forum defendant rule,” provides that a case can be removed on the basis of diversity jurisdiction “only if none of the parties of interest properly joined and served as defendant is a citizen of the State in which such as action is brought.” Diversity jurisdiction is designed to protect out of state defendants from local bias. In cases involving multiple defendants where at least one is a citizen of the forum state, the forum defendant rule precludes removal because the likelihood of local bias against all defendant is too remote to warrant removal. The present case John Hopkins Hospital is the forum defendant.
28 U.S.C 1441(b) states: An civil action of which the district courts have original jurisdiction founded on a claim or filing arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. The original intent of the 28 U.S.C 1441 under the First Judiciary Act of 1789 was clear from the classes of parties to remove a case from state to federal court. It made removal available for a Defendant who is of a foreign state and second Defendant of another foreign state sued by the Plaintiff whose citizenship is of the state in which the suit is brought. Revisions were made to the statue in 1948 to maintain the elements of the original statute, which forbid the removal of a Defendant who is a citizen of the forum state. Congress clearly prohibited removal by diversity citizenship in cases by a resident of the state in which the action was brought. This prohibition has been known as the forum defendant rule. The United States Supreme Court interpreted the language of the Act of 1887 “to restrict the jurisdiction of the federal courts on removal” continued in “the successive acts of Congress regulation the jurisdiction of federal courts… calling for the strict construction of such legislation.” According to the Act of 1887, the notice of removal must be filed “at the time, or any time before the Defendant is required by the law of the State … to answer or plead to the declaration or complaint of the Plaintiff.” The Supreme Court has held that for nonresident Defendants may remove when the Plaintiff voluntarily dismissed resident Defendants. In 1948, Congress replaced the indefinite period with a set period of removal of thirty day. This time period for removal begun upon “receipt by the Defendant, through service or otherwise … [of the] paper from which it may first be ascertained that the case is one which is or has become removable.” Defendant, John Hopkins Hospital was not severed with process at the time of filing Notice of Removal. John Hopkins Hospital explains it retrieved notice of the compliant through subscription that sent daily emails listing lawsuits filed in state and federal court each day. Nevertheless, the words “or otherwise” in the statute do not start the definite period by any informal retrieval of a copy. Congress added “or otherwise” in 1948 with the intent to cover state that permitted commencement of a civil action without serving a copy of the complaint. The Supreme Courts holds only formal service of process begins the definite time period for removal.
A forum defendant’s may remove a case only when “none of the parties in interest [are] properly joined and served as defendants is a citizen” of the forum state. John Hopkins Hospital seeks to override this prohibition by removing the action before being formally served under Md. Rule 2-112, or have otherwise received process from the Plaintiffs. Congress did not create 28 U.S.C. 1441(b) to restrict removal by a citizen of a forum state. The point of removal was to prevent the fear of local bias against an out of state defendant in state court. Congress never intended for bias to be against a forum defendant. This Court must interpret the 28 U.S.C 1441(b) to accomplish the intent of Congress. The Defendants are described through the specific language as “none of the parties in interest properly joined and served” in an expression to prohibit fraudulently joining Defendants, merely to defeat diversity jurisdiction, who were never to be served. Holmstrom’s court held that removal papers were quickly filed before any Defendant was served as an exception to the “properly joined and served” description of a forum Defendant, preventing such a Defendant from simply escaping the prevention of removal. The court in Holmstrom acknowledged the district’s court’s reasoning that the purpose of the descriptive language “properly joined and served” was “to ensure that parties do not name citizens of the forum state solely for the purpose of blocking removal, without any intention of effecting service on the forum state Defendant.Thus, the accurate interpretation of 28 U.S.C 1441(b) should read fully as “none of the parties in interest properly joined and served.”
John Hopkins removal is procedurally defective because it untimely. 2.8 U.S.C. 1446(b) establishes that notice of removal must be filed within thirty days after the receipt of by the defendant through process or otherwise of a copy of the initial pleading. John Hopkins was served at the time John Hopkins’ attorney filed the notice of Removal. The United States Supreme Court clarifies that the time period for filing a Notice of Removal support this interpretation. A Notice of Removal must be filed within thirty days after the receipt by the Defendant, through service or otherwise, of a copy of a the pleading…” In Murphy Bros, the Supreme Court held time commences on formal service of process, “not by mere receipt of complaint unattended by any formal service.” The clarification entails that the time period is commenced upon the receipt of complaint from the Plaintiff as an initiation of the action. The Supreme Court has held that a Defendant is not obligated to engage in litigation unless notified of the action, and is brought under the court’s authority, by formal process. The Supreme Court also states that, “Service of process … is fundamental to any procedural imposition on a named Defendant.” Because John Hopkins has knowledge of the Complaint through an email subscription, it is not a “receipt” from the Plaintiff as stated in 28 U.S.C 1446 (b). John Hopkins filing before the thirty day commencement of the suit of action creates a loop hole in 28 U.S.C. 1441(b) that is not consistent with Congress’s intent for limiting diverse jurisdiction removal, where local bias is presumed. The informal retrieval of a copy of Mr. West’s compliant before receipt of service does not start the time period for removal, it especially does not allow early removal to block removal by a forum Defendant. John Hopkins is manipulation the time period of service to trump Mr. West’s choice of a state forum. On July 25, 2003, appearance was filed for the counsel representing the Defendant. The Defendant’s case was then set for arraignment on October 10, 2003. Since October of 2003, there has been several postponements, the most recently being on February 25, 2005. On that date, the Court postponed the Defendant’s case again and now the case is scheduled for trial on May 13, 2005, in Part 4. The Court should take notice that the Defendant has never waived his right to a speedy trial.
In Moore v. Arizona, the United States’ Supreme Court held that there may be other reasons than prejudice to the defendant’s defense to prove a defendant was denied his constitutional right to a speedy trial. 414 U.S. 25, 94 S.Ct. 188 (1973). Instead the Court ruled that there are many factors the court may look at to determine if there has been a denial of the defendant’s right. The Court mentioned four factors that should be weighed in this determination: (1) length of delay, (2) reasons for the delay, (3) defendant’s assertion of the right, and (4) prejudice to the defendant. Moore at 26, citing Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182 (1972). The defendant’s right to a speedy trial was to prevent ‘oppressive pre-trial incarceration’, financial ruins, and to prevent unnecessary anxiety for the defendant and his friends and family. Erbe v. State, 276 Md. 541, citing Barker, at 532. Therefore, the Court, in the case-at-hand, should consider these reasons when balancing if there was a violation of the Defendant’s constitutional right.
For the foregoing reasons, this Court should grant the motion of Kanwe West and remand this case to the Circuit Court of Baltimore City, Maryland. Respectively Submitted, Dated: October 21, 2014 _______________________________ Anitra B. Washington University of Maryland School of Law 500 W. Baltimore St. Baltimore, Maryland 21201 In Maryland under Rule 4-271, a defendant’s right to a speedy trial should be within 180 days of the first time the defendant appeared in Circuit Court or the attorney filed an appearance. If the Defendant is tried on the next offered trial date of May 13, 2005, almost two (2) years would have passed since the Defendant’s attorney filed their appearance in this case. The Court must consider the time violation, the reasons for the delay, and the fact that the Defendant has not waived his right under Maryland Rule 4-271 or the 6th Amendment of the Constitution, when determining if there has been a violation. In this case, there has been a lengthy time violation and the Defendant has not waived his right. This Honorable Court should find in its discretion that the Defendant’s right to a speedy trial has been denied and grant this motion to di STATE OF MARYLAND*IN THE
QONTA WADDELL*FOR BALTIMORE CITY CASE NOS.:103206022,25*CRIMINAL DIVISION ***********
Upon consideration of the foregoing Motion to Remand, it is hereby ORDERED, this day of , 2014, that the Plaintiff’s request is hereby GRANTED. ___________________________ JUDGE
 Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 382 (1922).  Freeman v. Bee Machine Co., Inc., 319 U.S. 448 (1943).  American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10 (1951) ( noting that an “important [Congressional] purpose [of the 1948 revision of the Federal Rules of Civil Procedure] was to limit removal from state courts”).  Mulcahey v. Columbia Organic Chemical Company, Inc., 29 F.3d. 148, 151 (4th Cir. 1994), citing Wilson v. Republic Iron and Steel Company, 257 U.S. 92, (1921).  Id. Citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941).  Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987).  28 U.S.C. 1332.  28 U.S.C. 1441(b)  Id. See e.g. Lively v. Wild Oats Markets., Inc., 456 F.3d 933,939 (9th Cir. 2006).  McSparran v. Weist, 402 F.2d 897,876 (3d Cir. 1968); S. Rep. No. 1830, 85th Cong., 2d Sess., reprinted in 1958 U.S. Cone Cong.& Admin. News 3099, 3013 (the “purpose of diversity of citizenship legislation… is to provide a local juries by making available to them the benefits and safeguard of the federal courts”).  See Dresser Indus., Inc. v. Underwrities at Lloyd’s of London, 106 F.3d 494, 499 (3d. Cir. 1997) (insofar as “diversity jurisdiction exists because of a the fear that the state tribunal would be prejudice towards the out-of-state plaintiff or defendant, that concern is undstandably allayed when that party is joined with a citizen from the forum state”.)  Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,108 (1941).  24 Stat. 554 (1887), as amended, 25 Stat. 435 (1888).  Powers v. Chesapeake &Ohio Ry., 169 U.S. 92, 101 (1898).  28 U.S.C. 1446(b).  Motion Assignment P.1 para. 7.  Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344 (1999).  Holmstrom v. Peterson, 492 F.3d at 835 (7th Cir. 2007).  Motions Assignment page 1 para. 7.  28 U.S.C. 1441(b).  Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. at 347-48.  Id. at 344.  Id.
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