UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1611
SHERRI A. TURNER; MICHELLE TURNER-GOLDSMITH,
Plaintiffs - Appellants,
v.
JP MORGAN CHASE BANK, N.A., Successor in Interest to
Washington Mutual Bank, F.A.; HOWARD N. BIERMAN; JACOB
GEESING; CARRIE M. WARD; RALPH DIPIETRO,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:12-cv-02895-GLR)
Submitted: September 30, 2013 Decided: October 18, 2013
Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sherri A. Turner; Michelle Turner-Goldsmith, Appellants Pro Se.
John Sears Simcox, SIMCOX & BARCLAY, Annapolis, Maryland;
Matthew Daniel Cohen, BIERMAN GEESING WARD & WOOD, LLC,
Bethesda, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherri A. Turner and Michelle Turner-Goldsmith
(collectively “Turners”) appeal the dismissal of their wrongful
eviction claim against JP Morgan Chase Bank, N.A. (“Chase”) and
Howard N. Bierman, Jacob Geesing, Carrie Ward, and Ralph
Dipietro (collectively “substitute trustees”). The Turners
contend that the district court erred in denying their motion to
remand the case to Maryland state court and in determining that
their claim of wrongful eviction is time-barred. Finding no
error, we affirm.
First, the Turners suggest that the district court
incorrectly determined that the substitute trustees were
fraudulently joined to defeat diversity jurisdiction. “We
review de novo questions of subject matter jurisdiction,
including those relating to the propriety of removal and
fraudulent joinder.” Mayes v. Rapoport, 198 F.3d 457, 460 (4th
Cir. 1999) (internal quotation marks omitted). To properly
establish diversity jurisdiction, a defendant seeking removal
must show complete diversity among defendants and plaintiffs.
Id. at 461. Accordingly, “it [is] difficult for a defendant to
remove a case if a nondiverse defendant has been party to the
suit.” Id.
A defendant may accomplish this feat, however, through
the doctrine of fraudulent joinder, which allows “a district
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court to disregard, for jurisdictional purposes, the citizenship
of certain nondiverse defendants, assume jurisdiction over a
case, dismiss the nondiverse defendants, and thereby retain
jurisdiction.” Id.
[T]o establish that a nondiverse defendant has been
fraudulently joined, the removing party must establish
either: that there is no possibility that the
plaintiff would be able to establish a cause of action
against the in-state defendant in state court; or that
there has been outright fraud in the plaintiff’s
pleading of jurisdictional facts.
Id. at 464 (internal quotation marks and citation omitted).
This is a heavy burden, id., and a plaintiff’s claim against a
nondiverse defendant “need not ultimately succeed to defeat
removal; only a possibility of a right to relief need be
asserted.” Marshall v. Manville Sales Corp., 6 F.3d 229, 233
(4th Cir. 1993). Moreover, when considering the possibility of
fraudulent joinder, a district court must resolve all legal and
factual issues in the plaintiff’s favor. Mayes, 198 F.3d at
464.
Despite this rigorous standard, we agree that the
substitute trustees were fraudulently joined. Even assuming
that the Turners were entitled to and did not receive notice of
the relevant foreclosure proceedings, any claim against the
substitute trustees arising from the lack of notice is clearly
barred by the applicable three-year statute of limitations. Md.
Code Ann., Real Prop. § 7-105(c)(6) (LexisNexis 2007); Hunter v.
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Philip Morris USA, 582 F.3d 1039, 1045 (9th Cir. 2009); In re
Briscoe, 448 F.3d 201, 219-20 (3d Cir. 2006).
Moreover, allegations of improper notice aside, it is
clear that the substitute trustees cannot be held liable for the
independent actions of third parties taken after the culmination
of the foreclosure sale. That such actions were consummated
through the same proceedings as the earlier foreclosure action
is a product of Maryland procedure, not malfeasance or a breach
of duty on the part of the substitute trustees. G.E. Capital
Mortg. Servs., Inc. v. Edwards, 798 A.2d 1187, 1191-94 (Md. Ct.
Spec. App. 2002). Accordingly, we conclude that the Turners’
motion to remand was properly denied.
Turning to the grant of Chase’s motion to dismiss, we
review the district court’s order de novo and “focus only on the
legal sufficiency of the complaint.” Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). In considering a Fed. R. Civ. P.
12(b)(6) motion, the district court “must accept as true all of
the factual allegations contained in the complaint.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007). A complaint may survive a
motion to dismiss only if it “states a plausible claim for
relief” that “permit[s] the court to infer more than the mere
possibility of misconduct” based upon “its judicial experience
and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(internal citation omitted).
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Here, the Turners argue that the district court erred
in finding their wrongful eviction claim against Chase time-
barred under Maryland’s three-year statute of limitations. Md.
Code Ann., Cts. & Jud. Proc. § 5-101 (LexisNexis 2013). We
disagree.
“A civil action at law shall be filed within three
years from the date it accrues unless another provision of the
Code provides a different period of time within which an action
shall be commenced.” Id. Maryland follows the discovery rule,
which provides that a “cause of action accrues when the claimant
in fact knew or reasonably should have known of the wrong.”
Poffenberger v. Risser, 431 A.2d 677, 680 (Md. 1981). In other
words, the three-year limitations period begins to run when a
plaintiff might “maintain his action to a successful result,”
which is determined by examining when the plaintiff knew or
should have known of the facts underlying “the necessary
elements of a cause of action.” Shailendra Kumar, P.A. v.
Dhanda, 43 A.3d 1029, 1035 (Md. 2012).
Maryland adheres strictly to this facts-based approach
for determining when a claim accrues and consistently maintains
that a party’s knowledge of facts, not the party’s unfettered
ability to immediately press a viable claim, is the only
trigger. See Moreland v. Aetna U.S. Healthcare, Inc., 831 A.2d
1091, 1095-97 (Md. Ct. Spec. App. 2003). In Maryland, statutes
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of limitations “are by definition arbitrary, and their operation
does not discriminate between the just and the unjust claim, or
the voidable and unavoidable delay.” Adedje v. Westat, Inc.,
__, __, A.3d __, 2013 WL 4777328, at *17 (Md. 2013) (internal
quotation marks omitted). Accordingly, we reject the Turners’
contention that a favorable decision of the Maryland Special
Court of Appeals began the running of the limitations period on
their wrongful eviction claim. See Ali v. CIT Tech. Fin.
Servs., Inc., 6 A.3d 890, 894-95 (Md. 2010) (explaining that
tolling is method by which Maryland legislature has created
flexibility in § 5-101’s limitations period).
Moreover, although the Turners maintain at length on
appeal that the district court should have found the limitations
period tolled during the pendency of the somewhat circuitous
state court proceedings that eventually led to their instant
litigation, the Turners only raised such a suggestion in the
district court for the first time in their Fed. R. Civ. P. 59(e)
motion for reconsideration. Accordingly, we review the district
court’s rejection of the Turners’ relevant arguments for an
abuse of discretion. Robinson v. Wix Filtration Corp., 599 F.3d
403, 407 (4th Cir. 2010); United States v. Foreman, 369 F.3d
776, 784 n.8 (4th Cir. 2004).
To warrant relief under Rule 59(e), a movant must
demonstrate “(1) an intervening change in the controlling law,
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(2) new evidence that was not available at trial, or (3) that
there has been a clear error of law or a manifest injustice.”
Robinson, 599 F.3d at 407. Because the Turners’ motion for
reconsideration did not meet this standard, we conclude the
district court did not abuse its discretion in denying the
motion.
We therefore affirm the denial of the Turners’ motion
for remand, the dismissal of the Turners’ complaint, and the
denial of the Turners’ motion for reconsideration. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this Court and
argument would not aid the decisional process.
AFFIRMED
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