Knapp-Prasek v. California State Automobile Association et al

Filing 30

ORDER by Judge Conti granting 19 Motion to Remand (sclc1, COURT STAFF) (Filed on 9/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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TRAVIS KNAPP-PRASEK,

) Case No. 11-02848 SC
)
Plaintiff,
) ORDER GRANTING PLAINTIFF'S
) MOTION TO REMAND
v.
)
)
CALIFORNIA STATE AUTOMOBILE
)
ASSOCIATION; ACCELERATED RECOVERY )
SERVICES, INC.; PARAGON
)
SUBROGRATION SERVICES, INC.; DEBRA )
CHARONDO, and DOES 1 to 30.
)
)
Defendants.
)
)
)

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I.

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INTRODUCTION
This matter comes before the Court on a Motion to Remand filed

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by Plaintiff Travis Knapp-Prasek ("Plaintiff").

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("Motion").

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("Accelerated") filed an Opposition, and Plaintiff submitted a

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Reply.

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reasons, Plaintiff's Motion is GRANTED.

ECF No. 19

Defendant Accelerated Recovery Services, Inc.

ECF Nos. 21 ("Opp'n"), 25 ("Reply").

For the following

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II.

BACKGROUND
On March 30, 2011, Plaintiff filed a Complaint against

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California State Automobile Association ("CSAA"), Accelerated,

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Paragon Subrogation Services, Inc. ("Paragon"), Debra Charondo

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("Charondo") and Does 1 to 30 (collectively "Defendants") in the

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Superior Court of California for the County of San Francisco.

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No. 1 Ex. A ("Compl.").

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Charondo reside in California, CSAA is a California Limited

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Liability Partnership doing business in California, and Accelerated

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and Paragon are California corporations doing business in

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California.

According to the Complaint, Plaintiff and

Id. ¶¶ 1-5.

The Complaint asserts claims for unfair collection practices,

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ECF

intentional infliction of emotion distress, and fraud.

Id. ¶¶ 12-

United States District Court

For the Northern District of California

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57.

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the basis for Plaintiff's claim for unfair collection practices,

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but Plaintiff argues that his allegations support violations of the

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Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788

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("the Rosenthal Act").

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face, the Complaint asserts no federal causes of action.

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The Complaint, which is not a model of clarity, does not state

ECF No. 19-2 ("Pl.'s Br.") at 4.

On its

The following allegations are taken from Plaintiff's

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Complaint.

In January 2010 a motor vehicle operated by Charondo

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collided with Plaintiff as he was riding his bicycle in San

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Francisco.

Compl. ¶ 8.

Plaintiff was seriously injured and

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Charondo's vehicle sustained damage.

Id. ¶ 11.

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2010, Defendants attempted to collect from Plaintiff for amounts

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supposedly required to repair Charondo's vehicle.

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adjudication had been made regarding the cause of the collision and

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no judgment had been made against Plaintiff.

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part of their collection efforts, Defendants threatened to levy

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Plaintiff's bank account, garnish his wages, report a judgment to

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the credit bureaus, and seize Plaintiff's assets to satisfy a

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judgment, despite there being no judgment against Plaintiff.

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Beginning in April

Id. ¶ 14.

Id. ¶¶ 15, 23.

No

As

Id.

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¶¶ 21-25.

According to the Complaint, Defendants' actions

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constitute "unfair debt collection practices."

Id. ¶ 31.

On May 16, 2011, Charondo filed a Motion to Strike and a

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Demurrer to the Complaint in California state court.

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Exs. A, B.

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federal court claiming that federal jurisdiction was proper because

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Plaintiff's claim for unfair debt collection practices arises under

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the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.

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("FDCPA").

On June 10, 2011, Accelerated removed the case to

ECF No. 1 ("Notice of Removal") at 1.

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United States District Court

For the Northern District of California

ECF No. 19-1

Charondo consented to removal.1

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Paragon and

moves to remand the case back to state court.

Id. Exs. B, C.

Plaintiff now

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III. LEGAL STANDARD
A complaint originally filed in state court may be removed to

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federal court within thirty days of service on the defendant.

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U.S.C. § 1446(b).

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burden of showing that a federal court would have jurisdiction from

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the outset; in other words, that removal was proper.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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construe the removal statute against removal jurisdiction," and

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"federal jurisdiction must be rejected if there is any doubt as to

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the right of removal in the first instance."

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v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1007 (N.D.

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Cal. 2001)("any doubt is resolved in favor of remand").

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court's subject matter jurisdiction is determined on the basis of

On a motion to remand, a defendant bears the

Gaus v.

Courts "strictly

Id.; see also Plute

A district

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Accelerated claims that no consent to removal was required from
CSAA because, as of the date of removal, CSAA had not been served
with a copy of the Complaint. Notice of Removal at 1.

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the complaint at time of removal, not as subsequently amended.

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Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159

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F.3d 1209, 1213 (9th Cir. 1998).
The Court's federal question jurisdiction extends to "only

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those cases in which a well-pleaded complaint establishes either

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that federal law creates the cause of action or that the

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plaintiff's right to relief necessarily depends on resolution of a

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substantial question of federal law . . . in that federal law is a

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necessary element of one of the well-pleaded . . . claims."

United States District Court

For the Northern District of California

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Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808

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(1988) (quotations and citations omitted).

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'master' of her case, and if she can maintain her claims on both

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state and federal grounds, she may ignore

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assert only state claims, and defeat removal."

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76 F.3d 1480, 1485 (9th Cir. 1996).

"[T]he plaintiff is the

the federal question,
Duncan v. Stuetzle,

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IV.

DISCUSSION
Plaintiff argues that removal was improper because the

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Complaint does not state a federal claim on its face and the

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allegations of unfair collection practices support violations of

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California's Rosenthal Act.2

Pl.'s Br. at 3-4.

Accelerated

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Plaintiff also argues that Charondo waived her right to consent
to removal by proceeding to defend the action in state court.
Pl.'s Br. at 6. Citing the Fifth Circuit's decision in Brown v.
Demco, Inc., 792 F.2d 478 (5th Cir. 1986), Plaintiff contends that,
if a first served defendant does not timely remove, later served
defendants cannot remove due to the rule of unanimity. Id. The
Ninth Circuit has expressly rejected the Fifth Circuit's "firstserved rule" in favor of the doctrine that "each defendant is
entitled to thirty days to exercise his removal rights after being
served." Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011).
Accordingly, Charondo's response to the Complaint in state court
does not preclude Accelerated from removing the action.
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counters that Plaintiff's claim for "unfair debt collection

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practices" arises under the FDCPA and Plaintiff cannot state a

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claim under the Rosenthal Act.

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Plaintiff.

Opp'n at 1.

The Court agrees with

Accelerated argues that the Complaint asserts eleven separate

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claims arising under the FDCPA because certain language in the

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Complaint is similar to the provisions of the FDCPA.3

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For example, Accelerated notes that paragraph 31(c) of the

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Complaint alleges that Defendants "used unconscionable means to

Opp'n at 1.

United States District Court

For the Northern District of California

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collect a debt" and section 1692f of the FDCPA prohibits debt

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collectors from using "unfair or unconscionable means."

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Accelerated's assertion that "the Complaint quote[s] language from

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the FDCPA verbatim" is an overstatement.

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portions of the Complaint allege conduct which is also prohibited

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under the Rosenthal Act.

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and Rosenthal Act have similar provisions, compare Cal Civ. Code §

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1788.10(e), with 15 U.S.C. § 1692e(4), and the California

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legislature incorporated portions of the FDCPA into its law.

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Section 1788.17 of the Rosenthal Act provides that debt collectors

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"shall comply with the provisions of Sections 1692b to 1692j,

Id. at 5.

Moreover, those same

The overlap is inevitable as the FDCPA

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Pursuant to Federal Rule of Evidence 201, Accelerated also
requests that the Court take judicial notice of what Accelerated
represents to be an August 26, 2010 letter from Plaintiff's
counsel, advising Accelerated that its actions constitute
violations of the FDCPA. ECF No. 21-1 ("RJN"); Opp'n at 2. The
Court declines to take judicial notice of the letter, as it does
not constitute a fact "capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned." Fed. R. Evid. 201. Even if the Court were to take
judicial notice, the letter would have no bearing on the Court's
determination of whether removal was proper. The Court's
jurisdiction depends on the causes of action that are alleged in
the Complaint, not the causes of action that Plaintiff's attorney
may or may not have threatened to bring at an earlier date.
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inclusive, of, and shall be subject to the remedies in Section

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1692k of, Title 15 of the United States Code."

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1788.17.

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"does not automatically transform [plaintiff's Rosenthal Act] claim

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into a federal claim."

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LEXIS 93221, at *15 (C.D. Cal. Jan. 25, 2010).

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expand federal jurisdiction by deciding to copy a federal law."

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Britz v. Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999) (Posner, J.)

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(citation omitted).

Cal. Civ. Code §

The fact that the Rosenthal Act references the FDCPA

Ortega v. HomEq Servicing, 2010 U.S. Dist.
"[A] state cannot

United States District Court

For the Northern District of California

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Accelerated further argues that removal was proper because

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Plaintiff has failed to plead a violation of the Rosenthal Act.

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Opp'n at 6-7.

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not and cannot allege that Defendants were attempting to collect a

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consumer debt resulting from a consumer credit transaction under

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Cal. Civ. Code § 1788.2.

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state law claims ultimately fail as a matter of law is not before

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the Court on a motion to remand.

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"plaintiff's right to relief necessarily depends on resolution of a

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substantial question of federal law."

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808.

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fail as a matter of law, then Defendants may ask the state court to

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dismiss them on that basis.

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Specifically, Accelerated argues that Plaintiff has

Here it does not.

Id.

However, whether or not Plaintiff's

The pertinent question is whether

Christianson, 486 U.S. at

If Plaintiff's Rosenthal Act claims do

In sum, given the similarity of the FDCPA and the Rosenthal

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Act, it is far from clear that Plaintiff's cause of action arises

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under federal law or that Plaintiff's right to relief depends on

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resolution of a substantial question of federal law.

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"federal jurisdiction must be rejected if there is any doubt as to

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the right of removal," Gaus, 980 F.2d at 566, the Court finds that

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Because

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removal was improper and GRANTS Plaintiff's Motion.

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V.

CONCLUSION
For the foregoing reasons, the Court finds this case should be

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remanded to the originating state court, the Superior Court of the

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State California for the County of San Francisco.

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Knapp-Prasek's Motion to Remand is GRANTED.

Plaintiff Travis

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IT IS SO ORDERED.

United States District Court

For the Northern District of California

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Dated: September 19, 2011
UNITED STATES DISTRICT JUDGE

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