Ndzerre v. Liberty Power Corp.
Ndzerre v. Liberty Power Corp.
Opinion of the Court
Pending before the Court is Plaintiff HABAKUK NDZERRE's motion to remand this action to the Circuit Court for Montgomery County, Maryland, ECF No. 18, and Defendant LIBERTY POWER CORP., LLC's motion to dismiss for failure to state a claim, ECF No. 17. The motion to remand is fully briefed, and the Court rules under Loc. R. 105.6 because a hearing is not necessary. For the reasons that follow, the Court GRANTS Ndzerre's motion and remands this case to the Circuit Court for Montgomery County, Maryland for further proceedings. The Court denies Defendant's motion to dismiss as moot.
I. BACKGROUND
On December 19, 2017, Plaintiff Habakuk Ndzerre ("Ndzerre") filed this action *763in the Circuit Court for Montgomery County, Maryland ("Montgomery County Circuit Court"). In the Complaint, Ndzerre asserts individual and class claims against Defendant Liberty Power Corp. LLC ("Liberty Power") under the Maryland Uniform Declaratory Judgment Act, the Maryland Door-to-Door Sales Act, and the Maryland Consumer Protection Act. The Complaint also asserts common law claims for unjust enrichment. See ECF No. 2. The claims stem from Liberty Power's alleged practice of signing up consumers for electricity service without the consumer's knowledge or consent, a practice known as "slamming." Id. at ¶ 2, 4. Specifically, Ndzerre alleges that Liberty Power used pre-printed forms and disclosures to "slam" consumers with its services, and forged Ndzerre's signature on a pre-printed form. Id. at ¶¶ 22-26. Ndzerre further alleges that Liberty Power provided him with a renewal notice that did not comply with Maryland law. Id. at ¶¶ 30-32. Ndzerre previously obtained a ruling in his favor regarding one or more of these claims from the Maryland Public Service Commission. Id. at ¶ 33.
The Complaint proposes two classes: a "Slamming Class," consisting of persons in the State of Maryland that were solicited by Liberty Power with pre-printed, legally insufficient forms, and an "Improper Renewal Class," comprised of "members for whom Liberty Power automatically renewed for its electrical supply services but [ ] failed to specify the specific renewal date." Id. at ¶¶ 37-38. All claims in the Complaint are brought for Ndzerre individually and on behalf of one or both of the proposed classes. See generally ECF No. 2.
On February 14, 2018, Liberty Power timely removed the case to this Court, asserting jurisdiction pursuant to
II. STANDARD OF REVIEW
State court actions which originally could have been filed in federal court may be removed pursuant to
III. ANALYSIS
Liberty Power solely invokes diversity jurisdiction under
It is undisputed that the parties are diverse in state citizenship. The parties vigorously disagree, however, about whether the amount-in-controversy exceeds $75,000. See ECF Nos. 18, 24, 25.
• "WHEREFORE, Named Plaintiff and Slamming Class members pray that this Court: ... Grant a money judgment and order Defendant Liberty Power to disgorge and pay to the Slamming Class members all amounts it has collected from the Slamming Class members and the benefits it has realized as a result of collecting illegal sums based upon *765improper disclosures in a sum in excess of $75,000.00;
• WHEREFORE, Named Plaintiff and Improper Renewal Class members pray that this Court: ... Grant a money judgment and order Defendant Liberty Power[ ] to disgorge and pay to the Improper Renewal Class members the benefits it has realized as a result of its improper renewals in violation of Md. Code. Regs 20.53.07.08(D)(1) a sum in excess of $75,000.00;
• WHEREFORE, Named Plaintiff and Slamming Class Members pray that this Court: ... Grant a money judgment in favor of the Named Plaintiff and the Slamming Class members and against Liberty Power for violations of the Door to Door Sales Act, as described herein, in such amount to be determined at trial and for purposes of a sum certain directly related to improper assessment of charges and fees by Liberty Power against the Named Plaintiff's and Slamming Class utility accounts, subject to further discovery as to the size of the class, the amount sought on behalf of the class is in excess of $75,000.00;
• WHEREFORE, Named Plaintiff and Improper Renewal Class Members pray that this Court: ... Grant a money judgment in favor of the Named Plaintiff and the Improper renewal Class members and against Liberty Power for violations of the MCPA, as described herein, in such amount to be determined at trial and for purposes of a sum certain directly related to improper renewals by Liberty Power against the Named Plaintiff's and Improper Renewal Class utility accounts, subject to further discovery as to the size of the class, the amount sought on behalf of the class is in excess of $75,000.00.
See ECF No. 2 at ¶¶ 64(b), 70(b), 76(b), 84(b).
The Court cannot agree with Liberty Power. The disputed damages clauses plainly request judgment in excess of $75,000 for Ndzerre in combination with the putative class members. See ECF No. 2 at ¶¶ 64(b), 70(b), 76(b), 84(b). The damages clauses do not specify an individual amount-in-controversy for Ndzerre alone, or for any other class member individually. See
Liberty Power next argues that the amount-in-controversy requirement may be satisfied by the potential award of "attorneys' fees under the Maryland Uniform Declaratory Judgment Act and the Maryland Consumer Protection Act." Id. at 5. Liberty Power, however, does not state in the notice of removal that a potential statutory awards of attorneys' fees in part satisfies the jurisdictional amount, nor has Liberty Power moved to amend the notice of removal to include attorneys' fees in the amount-in-controversy calculations. See ECF Nos. 2 & 24. Rather, Liberty Power's notice states only that Ndzerre's "money damages" exceed $75,000. See ECF No. 1 at ¶ 5.
*766Courts typically limit the facts surrounding jurisdictional disputes to those set forth in the notice of removal. See, e.g. Johnson v. Nutrex Research, Inc. ,
IV. CONCLUSION
Liberty Power failed to sustain its burden of showing by a preponderance of the evidence that diversity jurisdiction in this Court is proper. Accordingly, Ndzerre's motion to remand is GRANTED.
It is this 12th day of June, 2018, ORDERED by the United States District Court for the District of Maryland:
1. Plaintiff HABAKUK NDZERRE's Motion to Remand, ECF No. 18, is GRANTED;
2. The pending motion at ECF No. 17 is DENIED as MOOT;
3. All further proceedings are remanded to the Circuit Court for Montgomery County, Maryland; and
4. Copies of this Memorandum Opinion and Order shall be transmitted to the parties and the Clerk of the Court for the Circuit Court for Montgomery County, Maryland, and the Clerk of Court shall transmit the record herein to the Clerk of the Circuit Court for Montgomery County, Maryland; and
5. The Clerk shall CLOSE this case.
Liberty Power could have sought removal pursuant to the Class Action Fairness Act ("CAFA"),
The Court has not considered the affidavits submitted with Ndzerre's motion to remand, see ECF Nos. 18-2 & 18-3, because it is clear from the face of the Complaint that Defendants improperly removed this case.
Reference
- Full Case Name
- Habakuk NDZERRE, On his behalf and on behalf of a class of similarly situated persons v. LIBERTY POWER CORP., LLC
- Cited By
- 5 cases
- Status
- Published