Susan Lines v. Bank of America, National Association et al
Filing
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ORDER GRANTING PLAINTIFFS MOTION TO REMAND 10 AND VACATING AS MOOT DEFENDANTS MOTION TO DISMISS 8 by Judge Dean D. Pregerson: Case remanded to State Court Case Remanded to Los Angeles Superior Court, No.BC587862. MD JS-6. Case Terminated. (lc). Modified on 9/29/2015 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SUSAN LINES,
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Plaintiff,
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v.
BANK OF AMERICA, NATIONAL
ASSOCIATION, FIA CARD
SERVICES, N.A.,
Defendants.
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Case No. CV 15-06156 DDP (PJWx)
ORDER GRANTING PLAINTIFF’S MOTION
TO REMAND AND VACATING AS MOOT
DEFENDANTS’ MOTION TO DISMISS
[Dkt. Nos. 10 and 8]
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Presently before the Court are Plaintiff Susan Lines’s Motion
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for Order Remanding Removed Action to State Court and Defendants’
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Motion to Dismiss Plaintiff’s Complaint.
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parties’ submissions, the Court adopts the following order.
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I.
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Having considered the
BACKGROUND
Plaintiff Susan Lines (“Lines”) brought a consumer protection
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suit against Defendants Bank of America, National Association
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(“BOA”) and FIA Card Services, N.A. (“FIA”) in California Superior
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Court.
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complaint that in 1986, William Lines (Plaintiff’s former husband)
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opened a credit card account that was eventually transferred to BOA
(See Notice of Removal, Ex. 1 .)
Plaintiff alleged in her
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and FIA.
(Id. at 4-5.)
Plaintiff found that the account was
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“being reported on her consumer credit reports” even though she had
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never been an account holder or authorized anyone to open an
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account in her name.
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Defendants that she should not be responsible for any collections
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connected to the account and that the account should not be on her
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credit reports, but Defendants “told plaintiff that she was
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responsible for the [account] because her name appeared on their
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records.”
(Id.)
(Id. at 5.)
Plaintiff tried to communicate to
Plaintiff alleges that she has suffered
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“damage to her credit rating, loss of credit, [and] loss of the
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ability to purchase and to benefit from credit.”
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Plaintiff filed her suit on July 13, 2015.
(Id. at 6.)
On August 13,
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2015, Defendants filed a Notice of Removal to bring the case to
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this Court.
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on the basis of federal question jurisdiction because Plaintiff
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alleged violations of the federal Truth in Lending Act and Fair
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Credit Reporting Act in addition to state consumer protection laws.
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(Id.)
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(Dkt. No. 1, Notice of Removal.)
Defendants removed
On August 20, 2015, Defendants filed a Motion to Dismiss,
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arguing that Plaintiff’s claims are variously time barred,
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preempted, and without standing.
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28, 2015, Plaintiff filed a Motion to Remand the case back to the
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California Superior Court.
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II.
(Defs.’ Mot. Dismiss.)
On August
(Pl.’s Mot. Remand.)
LEGAL STANDARD
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A.
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A defendant may remove a case from state court to federal
Motion to Remand
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court if the case could have originally been filed in federal
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court.
28 U.S.C. § 1441(a).
There is a “strong presumption”
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against removal and the Defendant has the burden of establishing
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that removal is proper by a preponderance of evidence.
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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); Morrison v. Zangpo,
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No. C-08-1945 EMC, 2008 WL 2948696, at *1 (N.D. Cal. July 28,
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2008).
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after receiving, “through service or otherwise, . . . a copy of the
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initial pleading setting forth the claim for relief upon which such
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action or proceeding is based.”
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a “motion to remand the case on the basis of any defect other than
Gaus v.
A defendant has thirty days in which to remove the case
28 U.S.C. § 1446(b)(1).
Likewise,
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lack of subject matter jurisdiction must be made within 30 days
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after the filing of the notice of removal under section 1446(a).”
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28 U.S.C. § 1447(c).
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B.
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A 12(b)(6) motion to dismiss requires a court to determine the
Motion to Dismiss
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sufficiency of the plaintiff's complaint and whether it contains a
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“short and plain statement of the claim showing that the pleader is
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entitled to relief.”
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12(b)(6), a court must (1) construe the complaint in the light most
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favorable to the plaintiff, and (2) accept all well-pleaded factual
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allegations as true, as well as all reasonable inferences to be
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drawn from them.
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979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187
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(9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.
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1998).
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Fed. R. Civ. P. 8(a)(2).
Under Rule
See Sprewell v. Golden State Warriors, 266 F.3d
In order to survive a 12(b)(6) motion to dismiss, the
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complaint must “contain sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’”
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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
However,
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“[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.”
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678.
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legal theory or sufficient facts to support a cognizable legal
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theory.”
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1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63
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(dismissal for failure to state a claim does not require the
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appearance, beyond a doubt, that the plaintiff can prove “no set of
Id. at
Dismissal is proper if the complaint “lacks a cognizable
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097,
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facts” in support of its claim that would entitle it to relief).
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complaint does not suffice “if it tenders ‘naked assertion[s]’
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devoid of ‘further factual enhancement.’”
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(quoting Twombly, 550 U.S. at 556).
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plausibility when the plaintiff pleads factual content that allows
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the court to draw the reasonable inference that the defendant is
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liable for the misconduct alleged.”
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as true “legal conclusions merely because they are cast in the form
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of factual allegations.”
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F.3d 1136, 1139 (9th Cir. 2003).
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III. DISCUSSION
A
Iqbal, 556 U.S. at 678
“A claim has facial
Id.
The Court need not accept
Warren v. Fox Family Worldwide, Inc., 328
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A.
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Plaintiff has filed a Motion to Remand the case back to the
Motion to Remand
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California Superior Court.
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of Removal was filed thirty-one days after receiving service of
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summons and the complaint, thus making the removal untimely and
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improper.
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the removal was timely because Plaintiff sent an email to Defendant
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BOA stating that Plaintiff had served Defendant FIA on July 23,
She argues that Defendant BOA’s Notice
(Pl.’s Mot. Remand at 7-10.)
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Defendants respond that
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2015, which means that filing for removal on August 13, 2015, was
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within the thirty-day window for FIA.
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2-3.)
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separate legal entity because on October 1, 2014, FIA merged into
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BOA.
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cannot sue or be sued, much less be served with a complaint or file
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a notice of removal.
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(Defs.’ Opp’n Mot. Remand at
Plaintiff responds that Defendant FIA is no longer a
(Pl.’s Reply at 4-6.)
Plaintiff argues that this means FIA
(Id. at 4-7.)
Plaintiff is correct that the thirty-day time limit of 28
U.S.C. § 1446 is strictly construed.
See Roth v. CHA Hollywood
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Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013)(“For good
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reason, § 1446(b)(1) and (b)(3) place strict limits on a defendant
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who is put on notice of removability by a plaintiff.”).
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true that if BOA filed the Notice of Removal on August 13, 2015,
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then BOA filed on the thirty-first day after receiving service of
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the summons and complaint based on the time computation of Federal
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Rule of Civil Procedure 6.
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could or did file the Notice of Removal, which would be timely as
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FIA would be a later-noticed defendant.
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630 F.3d 952, 956 (9th Cir. 2011).
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It is also
Thus, the key question is whether FIA
See Destfino v. Reiswig,
In Defendants’ Motion to Dismiss, Defendants noted that
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“[e]ffective October 1, 2014, FIA Card Services, N.A. has merged
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with and into Bank of America, N.A.”
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n.1.)
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Motion to Remand this case.
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belief that FIA was still an active party and had been served with
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the summons and complaint “was in error.”
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Richard Scott Lysle ¶ 3.)
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Dismiss put Plaintiff’s counsel on notice of his error: he states
(Defs.’ Mot. Dismiss at 1
After the Motion to Dismiss was filed, Plaintiff filed her
As Plaintiff’s attorney explained, his
(Pl.’s Reply, Decl.
It seems that Defendants’ Motion to
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that after he tried to serve FIA, he “ha[d] since been informed”
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and “accept[ed] Bank of America’s representation” that FIA was
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merged “out of existence” into BOA.
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(See id. at ¶¶ 3-4.)
Defendants’ evidence of FIA’s service is an almost entirely
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redacted email from Plaintiff’s attorney stating that “co-defendant
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F.I.A. Card Services, N.A. was served with Summons, Complaint and
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other papers on July 23, 2015.”
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Sethna Ex. A.)
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Lysle’s email, FIA removed this action on August 13, 2015” but that
(Defs.’ Opp’n, Decl. Of Judith T.
Defendants’ counsel declares that “[b]ased on Mr.
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“[t]o date, FIA has been unable to locate a copy of the Summons,
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Complaint served by Plaintiff.”
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receiver to which Plaintiff’s attorney sent the complaint for FIA
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told Plaintiff’s counsel that the receiver “did not have the legal
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capacity to accept [certified mail] on behalf of a no-longer extant
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entity.”
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have the legal capacity to appear as a litigant” and “does not have
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the legal capacity to file a Notice of Removal on its own behalf.”
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(Pl.’s Reply at 7.)
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(Id. ¶ 5.)
(Id. ¶ 3-4.)
However, the
Plaintiff now contends that FIA “does not
Based on BOA’s representations to this Court, it appears that
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Plaintiff is correct and that FIA is no longer a separate legal
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entity and did not file the Notice of Removal.
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Notice of Removal, the attorney caption states: “Attorneys for
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Defendant Bank of America, N.A., for itself and as successor by
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merger to FIA Card Services, N.A.”
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phrase is repeated in the motion itself: “Please take notice that
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Defendant Bank of America, N.A., for itself and as successor by
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merger to FIA Card Services, N.A. (“BANA”), hereby removes the
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action described below . . . .”
(Notice of Removal.)
(Id. at 2.)
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In the Defendants’
The same
Thereafter, all
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references to the “defendants” are to a singular “BANA” in both the
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Notice of Removal and the Motion to Dismiss.
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And even if FIA were to exist as a separate party, there is no
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indication that FIA did not also have notice of the complaint at
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the same time BOA did on July 13, 2015, as BOA is the successor by
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merger for FIA.
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or did — consent to BOA’s filing of the Notice of Removal.
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telling is the footnote in the Motion to Dismiss stating that FIA
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“merged with and into” BOA and the dropping of all further
There is also no indication that FIA needed to —
(Defs.’ Mot. Dismiss at 1 n.1.)
Most
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reference to FIA.
Altogether,
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these representations indicate that FIA did not file the Notice of
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Removal and is not a separate legal entity who was served at a
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later date.
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filed after the thirty-day time limit for removing a case.
Therefore, the Notice of Removal is untimely as it was
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B.
Attorney’s Fees
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Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may
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require payment of just costs and any actual expenses, including
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attorney fees, incurred as a result of the removal.”
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Court has interpreted this statutory section to warrant attorney’s
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fee awards “only where the removing party lacked an objectively
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reasonable basis for seeking removal” unless “unusual
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circumstances” provide a basis for deviating from the general rule.
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Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
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of attorney’s fees are discretionary, but are to be guided by the
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principles underlying § 1447(c): to “deter removals sought for the
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purpose of prolonging litigation and imposing costs on the opposing
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party.”
(Id. at 140.)
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The Supreme
Grants
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Here, Plaintiff has not provided any argument or facts showing
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that Defendants’ Notice of Removal was filed with the purpose of
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delaying litigation or imposing costs.
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12-13.)
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there is a legitimate legal ground for removal under 28 U.S.C. §
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1441 because Plaintiff’s federal law claims could have originally
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been brought in federal court.
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purposes for awarding attorney’s fees under § 1447(c) are not
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present here and Plaintiff’s request for attorney’s fees is denied.
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(See Pl.’s Mot. Remand at
Further, absent the untimeliness of the Notice of Removal,
Therefore, the Court finds that the
IV. CONCLUSION
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For the reasons stated above, Plaintiff’s Motion to Remand is
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GRANTED in part as to the remand and DENIED in part as to the
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attorney’s fees.
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the Defendants’ Motion to Dismiss is VACATED as moot.
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8.)
Because the Court lacks jurisdiction to hear it,
(Dkt. No.
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IT IS SO ORDERED.
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Dated: September 28, 2015
DEAN D. PREGERSON
United States District Judge
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