ANDRE DAVIS, District Judge
This diversity damages action has been removed from state court a second time after the court previously remanded the action.
Plaintiffs M. Barry Strudnick and Susan Weiss sued, in the Circuit Court for Baltimore City, numerous defendants, including defendant Michael Caputo Public Relations, Incorporated. Defendant Whitney Information Network, Inc., filed a timely notice of removal and plaintiffs filed a timely motion to remand. In a Memorandum Opinion filed on May 28, 2008 (copy attached), the court found that Whitney Information Network, Inc., had failed to satisfy its burden to show that there was complete diversity of citizenship, and granted the motion to remand. That finding was based on Whitney's failure to establish through affidavit and documentary evidence that defendant Michael Caputo Public Relations, Inc., was not a citizen of New York. Thus, Michael Caputo Public Relations, Inc., shared New York citizenship with plaintiff Weiss, and the court lacked diversity jurisdiction.
In due course after the remand, plaintiffs filed an amended complaint and joined as defendants Rothstein Rosenfeldt Adler, P.A., a Florida law firm, and one of its principals, defendant Scott Rothstein. Rothstein Rosenfeldt Adler, P.A., filed a notice of removal and, again, plaintiffs filed a timely motion to remand. The motion to remand has been fully briefed and no hearing is needed.
Plaintiffs essentially make two arguments: (1) that the court should adhere to its earlier determination that complete diversity has not been shown, and (2) that remand should be ordered because the removal of the case was procedurally defective. As to the first contention, I am not persuaded. Specifically, I agree with defendants that there is a difference between a finding that complete diversity is lacking, on the one hand, and that there was a failure of proof of complete diversity, on the other hand. The prior remand was based on the latter ground, not the former. Assuming a newly-joined defendant such as Rothstein Rosenfeldt Adler, P.A., has the right to remove, it would seem that it should be permitted to marshal its own proof of subject matter jurisdiction.
Plaintiffs largely acknowledge that Rothstein Rosenfeldt Adler, P.A., would ordinarily be entitled to submit proof of complete diversity, but they contend that as Rothstein Rosenfeldt Adler, P.A., actually participated in the case at its inception as counsel to Michael Caputo Public Relations, Inc., it should be bound by the court's earlier determination. Plaintiffs also seek, in the alternative, jurisdictional discovery. I need not resolve these issues.
In any event, I agree with plaintiffs' alternative contentions. First, I find that in this case the "newly-joined defendant" (Rothstein Rosenfeldt Adler, P.A.) does not have the unfettered right to remove because the circumstances of this case place it within the controversial dicta set forth in the footnote by the Fourth Circuit in McKinney v. Board of Trustees of Mayland Comm. Coll., 955 F.2d 924 (4th Cir. 1992). See Ford v. Baltimore City Dept. of Social Services, 2006 WL 3324896 (D.Md. Nov. 13, 2006). In other words, under McKinney, because Michael Caputo Public Relations, Inc., neither removed the case nor joined in the removal the first time, it cannot consent to removal now. Thus, the unanimity requirement is not satisfied. Id.
In my earlier order, I observed that "it is not entirely clear whether Michael Caputo Public Relations, Inc., has been served with process; certainly, it has not appeared in the action." Contrary to the present argument of the defendants, this was not a finding that Michael Caputo Public Relations, Inc., had not been served at the time of the first removal. Based on the record now before the court, it is clear that Michael Caputo Public Relations, Inc., had indeed been served with process at the time of the prior removal and simply failed to express consent to the removal (or even to appear in the case).
Moreover, as plaintiffs contend, because the notice of removal fails to allege the citizenship of the parties both at the time of the filing of the case in state court as well as of the filing of the notice of removal, it is defective and insufficient. Hubbard v. Tripp, 611 F.Supp. 895, 896 (E.D.Va. 1985) (collecting cases) ("`[T]here is a long line of authorities supporting the proposition that when diversity of citizenship is a basis of removal jurisdiction, it must exist both at the time the original action is filed in the state court and at the time removal is sought.' 14A Wright, Miller Cooper, Federal Practice and Procedure, Jurisdiction 2d § 3723 (1985)."). Accordingly, the motion to remand shall be granted. An order follows.
Indeed, although I would not find, on the basis of the record as it presently exists, that complete diversity was lacking at the time the instant notice of removal was filed, I would not and do not find that, at the time the case was filed in state court, complete diversity existed. (The original complaint and the amended complaint actually allege the contrary). Thus, the defect in the notice of removal filed by Rothstein Rosenfeldt Adler, P.A., reflects both a procedural as well as a substantive defect.