* IN THE
* CIRCUIT COURT QONTA WADDELL * FOR BALTIMORE CITY
DISMISS NOW COMES the Defendant, Qonta Waddell
Counsel, Cassandra Costley, Assistant Public Defender
this Honorable Court
grant an order
dismiss the cases against him,
Rule 4-271 and the Sixth Amendment of the United Stateâ€™s Constitution.
Respectively Submitted, _______________________________ Anitra B. Washington University of Maryland School of Law 500 W. Baltimore St. October 21, 2014Baltimore, Maryland 21201
* IN THE
* CIRCUIT COURT QONTA WADDELL * FOR BALTIMORE CITY
DISMISS statement 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
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.
STATEMENT OF UNDISPUTED FACTS
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 clerkâ€™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.
held removal jurisdiction is derivative in nature.
Basically, the Court states, if the â€œstate court lacks jurisdiction of the subject matter or of the parties, the federal District Court acquires none on a removal of the case.â€
The Court disfavors removal and notes that
follows the precedence
Establishing federal jurisdiction is 
The Fourth Circuit uses strict scrutiny when construing removal jurisdiction â€œb
provides that removal is 
involving diversity also require    
The present case John Hopkins Hospital is the forum defendant.
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 â€œto restrict the jurisdiction of the federal courts on removalâ€ continued in â€œthe successive acts of Congress regulation the jurisdiction of federal courtsâ€¦ calling for the strict construction of such legislation.â€
According to the Act of 1887, the notice of removal must be filed â€œat the time, or any time before the Defendant is required by the law of the State â€¦ to answer or plead to the declaration or complaint of the Plaintiff.â€
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 â€œreceipt by the Defendant, through service or otherwise â€¦ [of the] paper from which it may first be ascertained that the case is one which is or has become removable.â€
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 â€œor otherwiseâ€ in the statute do not start the definite period by any informal retrieval of a copy. Congress added â€œor otherwiseâ€ 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.
- Specific Language of Section 1441(b)
A forum defendantâ€™s may remove a case only when â€œnone of the parties in interest [are] properly joined and served as defendants is a citizenâ€ 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 â€œnone of the parties in interest properly joined and servedâ€ in an expression to prohibit fraudulently joining Defendants, merely to defeat diversity jurisdiction, who were never to be served. Holmstrom
â€™s court held that removal papers were quickly filed before any Defendant was served as an exception to the â€œproperly joined and servedâ€ description of a forum Defendant, preventing such a Defendant from simply escaping the prevention of removal. The court in Holmstrom
acknowledged the districtâ€™s courtâ€™s reasoning that the purpose of the descriptive language â€œproperly joined and servedâ€ was â€œto 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 â€œnone of the parties in interest properly joined and served.â€
- The Time Period for Remand Begins at the Start of Formal Service Process
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 Hopkinsâ€™ 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 pleadingâ€¦â€
In Murphy Bros
, the Supreme Court held time commences on formal service of process, â€œnot by mere receipt of complaint unattended by any formal service.â€
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 courtâ€™s authority, by formal process.
The Supreme Court also states that, â€œService of process â€¦ is fundamental to any procedural imposition on a named Defendant.â€
Because John Hopkins has knowledge of the Complaint through an email subscription, it is not a â€œreceiptâ€ 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 Congressâ€™s intent for limiting diverse jurisdiction removal, where local bias is presumed. The informal retrieval of a copy of Mr. Westâ€™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. Westâ€™s choice of a state forum.
On July 25, 2003, appearance was filed for the counsel representing the Defendant. The Defendantâ€™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 Defendantâ€™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.
CASE LAW IN SUPPORT OF MOTION TO DISMISS In Moore v. Arizona , the United Statesâ€™ Supreme Court held that there may be other reasons than prejudice to the defendantâ€™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 defendantâ€™s right. The Court mentioned four factors that should be weighed in this determination: (1) length of delay, (2) reasons for the delay, (3) defendantâ€™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 defendantâ€™s right to a speedy trial was to prevent â€˜oppressive pre-trial incarcerationâ€™, 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 Defendantâ€™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 defendantâ€™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 Defendantâ€™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 6 th 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 Defendantâ€™s right to a speedy trial has been denied and grant this motion to di
STATE OF MARYLAND*IN THE
- *CIRCUIT COURT
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 Plaintiffâ€™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).     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 â€œpurpose of diversity of citizenship legislationâ€¦ is to provide a local juries by making available to them the benefits and safeguard of the federal courtsâ€). 
See Dresser Indus., Inc. v. Underwrities at Lloydâ€™s of London
, 106 F.3d 494, 499 (3d. Cir. 1997) (insofar as â€œdiversity 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 stateâ€.)  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
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