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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND THOMAS M. REIDY v. SANDLER SYSTEMS, INC., ET AL. * * * * * *****

Civil No. JFM-05-109

MEMORANDUM Defendants removed this action to this court from the Circuit Court for Baltimore County, Maryland on the basis of this court's diversity jurisdiction. One of the defendants, Howard Maslich is, like plaintiff, a citizen of the state of New York. Defendants allege, however, that Maslich was fraudulently joined in order to defeat this court's subject matter jurisdiction. There are two components to defendants' argument. First, they contend that Maslich's joinder in this action was in violation (or at least contravention) of an order, entered by the New York Supreme Court in an earlier case instituted by plaintiff against defendants, directing that the claims against Maslich be consolidated with another action instituted by plaintiff against Maslich in the New York Supreme Court. Defendants' contention is unpersuasive. In the New York action against them, defendants had moved to dismiss on the basis of a contractual forum selection clause requiring that all of the defendants, other than Maslich, be sued in Maryland. The New York court agreed with defendants' position and dismissed the action against all of them except Maslich. The court, upon Maslich's own motion, then ordered the consolidation of the two actions against him. Against this background it cannot be said that plaintiff clearly has acted in bad faith. Defendants other than Maslich successfully persuaded the New York court that they could be

sued only in Maryland. Plaintiff could reasonably have concluded that it is more efficient to litigate his claims against Maslich that are related to his claims against the other defendants in a single action in Maryland rather than to litigate those claims in the consolidated New York action. Of course, after remand, the Circuit Court for Baltimore County may rule (provided that it finds it has personal jurisdiction over Maslich) that the Maryland litigation against Maslich should be stayed in favor of the consolidated New York action against him. Whether or not such action is appropriate can be decided by the Circuit Court upon the facts and circumstances brought to its attention. However, as I have indicated, on the present record it cannot be inferred that Maslich was fraudulently joined for purpose of defeating this court's diversity jurisdiction. Defendants' second contention is that plaintiff has no claim that can be litigated against Maslich in Maryland because he is not subject to personal jurisdiction here. That contention may ultimately prove to be meritorious. The present record is not, however, sufficiently developed to decide whether or not Maslich is subject to personal jurisdiction in Maryland. After remand, Maslich may move to dismiss for lack of personal jurisdiction. If that motion is granted (and if the jurisdictional ruling is made one year or less after commencement of this action, see 28 U.S.C.

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