Portfolio Recovery Associates, LLC v. Born

Filing 27

ORDER REMANDING CASE to the District Court of Johnson County, Arkansas. Signed by Honorable Jimm Larry Hendren on July 23, 2010. (lw)

Portfolio Recovery Associates, LLC v. Born

Doc. 27

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION PORTFOLIO RECOVERY ASSOCIATES, LLC v. WILLIAM G. BORN WILLIAM G. BORN v. PORTFOLIO RECOVERY ASSOCIATES, LLC, and BYRON S. SOUTHERN, P.A., Individually and d/b/a SOUTHERN, ALLEN & WITHROW; HENRY "GUS" ALLEN, ATTORNEY, P.A., Individually and d/b/a SOUTHERN, ALLEN & WITHROW; LORI E. WITHROW, PLLC, Individually and d/b/a SOUTHERN, ALLEN & WITHROW; and TEAVEN STAMATIS ORDER Now on this 23rd day of July, 2010, the captioned matter comes on sua sponte, for consideration of the Court's subject matter jurisdiction. 1. This case arose in the District Court of Johnson County, Civil No. 10-2071 DEFENDANT COUNTER-PLAINTIFF PLAINTIFF

COUNTER-DEFENDANTS

Arkansas, as a Complaint alleging that defendant William G. Born ("Born") owed plaintiff Portfolio Recovery Associates, LLC

("Portfolio") $1,168.44 for purchases made on a credit card account which had been assigned to Portfolio (the "Johnson County Case"). 2. Born filed a Counterclaim and Third-Party Complaint in

the Johnson County Case, asserting causes of action arising under

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15 U.S.C. § 1962 et seq., the Fair Debt Collection Practices Act ("FDCPA"). He then removed the case to this Court, relying

entirely on the causes of action asserted in his Counterclaim and Third-Party Complaint. Born admits in his Notice Of Removal that no

"[p]laintiff asserted only state claims against Defendant; basis for removal existed in the original case

until

Defendant/Counter-Plaintiff asserted his federal claims against the parties adverse to him." 3. This removal was in error. A case is removable if it is

one "brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a).

As explained in Gore v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000), [a] defendant may remove a state court claim to federal court only if the claim originally could have been filed in federal court, and the well-pleaded complaint rule provides that a federal question must be presented on the face of the properly pleaded complaint to invoke federal court jurisdiction. A defendant is not permitted to inject a federal question into an otherwise state-law claim and thereby transform the action into one arising under federal law. 210 F.3d at 948 (internal citation omitted).1 It matters not how a defendant attempts to inject the federal question: "separate and independent claims or causes of action brought into a case by way of counterclaim, cross-claim or third-

1 There is a narrow exception to this doctrine, where federal law completely preempts state law, but the FDCPA does not fit the exception. Its exemptions are only partial. 15 U.S.C. § 1692n.

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party complaint or intervention do not justify removal." v. Allday, 221 F.Supp. 169, 170-71 (8th Cir. 1963). `4.

Sexton

Here, there was no federal question in the Complaint,

with the result that this Court lacks subject-matter jurisdiction over the removed case. Pursuant to 28 U.S.C. § 1447, "[i]f at any

time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." IT IS THEREFORE ORDERED that this case is remanded to the District Court of Johnson County, Arkansas. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

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