Rutherford v. Wells Fargo Bank, N.A.

Filing 26

OPINION AND ORDER denying 17 Motion to Remand to State Court. Signed by Judge John E. Steele on 6/18/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SHAINA A. RUTHERFORD,

vs.

Case No.

2:13-cv-239-29DNF

WELLS FARGO BANK, N.A.,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Remand (Doc. #17) filed on April 26, 2013.

Defendant failed to

file a response, and the time to do so has expired.

For the

reasons set forth below, the motion is denied.
Plaintiff Shaina A. Rutherford (plaintiff) filed her Complaint
(Doc. #2) against defendant Wells Fargo Bank, N.A. (defendant) in
state court for violation of the federal Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692b(3).

The timely Notice

of Removal (Doc. #1) asserts federal question jurisdiction as the
basis for removal.

Plaintiff now seeks a remand to state court

because both state and federal courts have concurrent jurisdiction
over FDCPA claims, and no novel, compelling or overriding issues
exist that require a federal court to preempt plaintiff’s state
court forum of choice.
The

Supreme

principles:

Court

(Doc. #17, p. 3.)
has

succinctly

summarized

the

removal

As a general matter, defendants may remove to the
appropriate federal district court “any civil action
brought in a State court of which the district courts of
the United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). The propriety of removal thus depends on
whether the case originally could have been filed in
federal court. The district courts have original
jurisdiction under the federal question statute over
cases “arising under the Constitution, laws, or treaties
of the United States.” § 1331. It is long settled law
that a cause of action arises under federal law only when
the plaintiff's well-pleaded complaint raises issues of
federal law.
City of Chi. v. Int’l. Coll. of Surgeons, 522 U.S. 156, 163
(1997)(citations and quotation marks omitted). The Complaint (Doc.
#2) filed in state court sets forth a claim under the FDCPA, and
therefore the claim clearly arises under federal law, and a federal
court would have original jurisdiction over such a claim.
U.S.C. § 1692k(d); 28 U.S.C. § 1331.

15

This case was therefore

properly removed under 28 U.S.C. § 1441(a), unless an act of
Congress provides otherwise.
There is no provision of the FDCPA which precludes removal of
such a case to federal court.

While a state court has concurrent

jurisdiction to hear a FDCPA claim, 15 U.S.C. § 1692k(d), this does
not preclude removal.

E.g., Breuer v. Jim’s Concrete of Brevard,

Inc., 538 U.S. 691 (2003); Mims v. Arrow Fin. Servs., LLC, 132 S.
Ct. 740 (2012).

Additionally, plaintiff’s choice of a state forum

does not preclude defendant from removing the case.

While as

master of her complaint plaintiff need not assert a federal claim,
having done so plaintiff subjected herself to the possibility that

2

defendant would remove the case to federal court.
Surgeons, 522 U.S. at 165.

Int’l. Coll. of

There is no basis for the court to

abstain from its “virtually unflagging obligation” to exercise its
jurisdiction.

Elk Grove Unified Sch. Dist. v. Newdow, 541 U.S. 1,

21 (2004).
Accordingly, it is now
ORDERED:
Plaintiff’s Motion for Remand (Doc. #17) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2013.

Copies:
Counsel of record

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