Hargrave v. Capital One Bank, N.A.

Filing 38

ORDERED: Plaintiff's Motion to Remand to State Court 15 is GRANTED. This case is REMANDED to the County Court for the Fifth Judicial Circuit, in and for Hernando County, Florida, small claims division. The Clerk is directed to transmit a certified copy of this Order to the Clerk of the County Court for the Fifth Judicial Circuit, in and for Hernando County, Florida. The Clerk is further directed to terminate any pending motions and deadlines and close this case. Signed by Judge Charlene Edwards Honeywell on 1/7/2021. (JDE)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN HARGRAVE,
Plaintiff,
v.

Case No: 8:20-cv-1231-T-36AEP

CAPITAL ONE BANK (USA), N.A.,
Defendant.
___________________________________/
ORDER
This matter comes before the Court on Plaintiff’s Motion to Remand to State
Court (Doc. 15). In the motion, Plaintiff argues that this case should be remanded to
state court for lack of subject matter jurisdiction. Defendant, Capital One Bank, N.A.,
filed a response in opposition (Doc. 21) and Plaintiff replied (Doc. 25). The Court,
having considered the motion and being fully advised in the premises, will grant
Plaintiff’s Motion to Remand to State Court.
I.

BACKGROUND
On April 18, 2020, Plaintiff John Hargrave initiated this action in the small

claims division of the County Court of the Fifth Judicial Circuit, in and for Hernando
County, by filing a one-count Complaint against Defendant for alleged violation of the
Florida Consumer Collection Practices Act, Fla. Stat. § 559.01, et seq. (FCCPA). Doc.
1-1. Plaintiff had an outstanding balance on a personal consumer credit card account
with Capital One (“the alleged debt”). Id. ¶ 7. At all relevant times, employees and

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representatives of Defendant attempted to collect the alleged debt from Plaintiff. Id. ¶
8.
As set forth in the complaint, on or about January 20, 2020, Plaintiff sent a letter
to Defendant stating he was represented by counsel, and he provided counsel’s contact
information, including his address, phone number, and email address, and expressly
requested that any further direct communication with Plaintiff be through his counsel
only. Id. ¶ 9. As of January 24, 2020, Defendant had actual knowledge that Plaintiff
was represented by counsel with respect to the alleged debt. Id. ¶ 11. Despite
Defendant’s knowledge that Plaintiff was represented by counsel, Defendant
attempted to collect the alleged debt directly from Plaintiff on or about February 17,
2020, by sending Plaintiff by mail a payment envelope stating “Manage your account
and make payments online” and “Write your four digits of your account number on
your check.” Id. ¶ 13. Plaintiff alleges Defendant attempted to collect the debt by
stating a specific sum was due by a particular date, providing a phone and on-line
payment deadline, providing account notifications, providing information regarding
consumer credit counseling, soliciting Plaintiff to pay and manage the account on a
mobile app or on-line banking platform, listing instructions to send the tear-off style
coupon payment, and stating certain consequences if the amount claimed to be due
was not paid by the specific due date. Id. ¶ 12. These debt collection efforts angered
and stressed Plaintiff. Id. ¶ 14.
Plaintiff alleges that Defendant’s conduct violated Fla. Stat. § 559.72, which
provides in relevant part that in collecting a consumer debt, no person shall:
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Communicate with a debtor if the person knows that the
debtor is represented by an attorney with respect to such
debt and has knowledge of, or can readily ascertain, such
attorney’s name and address, unless the debtor’s attorney
fails to respond within 30 days to a communication from
the person, unless the debtor’s attorney consents to a direct
communication with the debtor, or unless the debtor
initiates the communication.
Fla. Stat. § 559.72(18). As a result, Plaintiff claims he sustained statutory damages and
attorney’s fees. Id. ¶ 17.
Defendant filed a timely Notice of Removal on May 28, 2020. Doc. 1. In the
Notice, Defendant argues that this court has subject matter jurisdiction because
Plaintiff’s state law FCCPA claim is preempted due to conflict with federal statutes,
namely the Truth in Lending Act (“TILA”), 15 U.S.C. § 1637(b), as amended by the
Credit Card Accountability Act of 2009, and Regulation Z (“Reg Z”), 12 C.F.R. §
226.7. Specifically, Defendant urges federal question jurisdiction exists based on
“conflict preemption” wherein “state laws are preempted when they conflict with
federal law.” Doc. 1 at 4 (citing Arizona v. United States, 132 S. Ct. 2492, 2501 (2012)).
Defendant does not argue that TILA or Reg Z preempts the whole FCCPA, but rather
just this particular FCCPA claim that is based upon a monthly statement mailed to
Plaintiff because TILA requires a creditor such as Defendant to send monthly
statements to the natural person who the credit card was issued to or to a natural
person who has agreed to pay the amounts owed on the card. Doc. 1 at 5–6. Defendant
argues that sending it to Plaintiff’s lawyer is not a viable option. Thus, Defendant

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argues this TILA requirement overrides any Florida state law requirement that directs
a person not to contact a debtor once represented by counsel.
Plaintiff filed a motion to remand to state court (Doc. 15) arguing that
Defendant fails to demonstrate that complete preemption exists or that all of the Gunn1
factors are present. In response, Defendant claims that the FCCPA is wholly
preempted by federal law such that this court’s jurisdiction is invoked. Doc. 21
II.

LEGAL STANDARD
Removal of cases to federal court is governed by 28 U.S.C. § 1441, which

provides in part that “[e]xcept as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts of the United States
have original jurisdiction may be removed by the defendant or the defendants to the
district court of the United States for the district and division embracing the place
where such action is pending.” Id. at § 1441(a). Federal district courts are courts of
limited jurisdiction. See Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260–61 (11th
Cir. 2000). Parties seeking to invoke subject matter jurisdiction must show that the
underlying claim is based upon either diversity jurisdiction (cases in which the parties
are of diverse citizenship and “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs”), or the existence of a federal question (i.e., “a

The Supreme Court in Gunn v. Minton, 568 U.S. 251, 258 (2013), enumerated a four-part test
for courts to apply when determining whether construction of a federal law is required to
evaluate a state law right. A defendant must show it satisfies all four factors in order to
establish a federal district court’s subject matter jurisdiction. Id.
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civil action arising under the Constitution, laws, or treaties of the United States”). See
28 U.S.C. §§ 1331–1332.
Removal jurisdiction is construed narrowly with all doubts resolved in favor of
remand. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999);
Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). “A removing
defendant bears the burden of proving proper federal jurisdiction.” Leonard v. Enter.
Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) (citing Williams v. Best Buy Co., 269 F.3d
1316, 1319–20 (11th Cir. 2001)); see Univ. of S. Ala., 168 F.3d at 411–412 (“The burden
of establishing subject matter jurisdiction falls on the party invoking removal.”).
“The jurisdiction of a court over the subject matter of a claim involves the
court’s competency to consider a given type of case, and cannot be waived or otherwise
conferred upon the court by the parties.” Jackson v. Seaboard Coast Line R.R. Co., 678
F.2d 992, 1000 (11th Cir. 1982). “[O]nce a federal court determines that it is without
subject matter jurisdiction, the court is powerless to continue.” Univ. of S. Ala., 168
F.3d at 410.
III.

DISCUSSION
Plaintiff urges remand is warranted here because his Complaint does not present

a federal question and Defendant’s reliance on an affirmative defense does not confer
jurisdiction. The Court agrees. “The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that
federal jurisdiction exists only when a federal question is presented on the face of the

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plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). “The rule makes the plaintiff the master of the claim; he or she may avoid
federal jurisdiction by exclusive reliance on state law.” Id.; see also Merrell Dow Pharms.
Inc. v. Thompson, 478 U.S. 804, 808 (1986) (“[T]he question whether a claim ‘arises
under’ federal law [for purposes of removal] must be determined by reference to the
‘well-pleaded complaint.’”).
There are exceptions to the well-pleaded complaint rule. “[W]hen a federal
statute wholly displaces the state-law cause of action through complete pre-emption,”
the state claim can be removed. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).
This is so because “[w]hen the federal statute completely pre-empts the state-law cause
of action, a claim which comes within the scope of that cause of action, even if pleaded
in terms of state law, is in reality based on federal law.” Id. Limited applications of the
doctrine have been seen in the context of Labor Management Relations Act (LMRA)
claims, see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968), and in Employee
Retirement Income Security Act (ERISA) claims, see Franchise Tax Board v. Constr.
Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23–24 (1983); Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63–64 (1987). See also Cmty. State Bank v. Strong, 651 F.3d 1241, 1260
n.16 (11th Cir. 2011) (“Complete preemption is a rare doctrine . . . .”).
In its removal notice, Defendant did not claim that the FCCPA is wholly
preempted by TILA or Reg Z. Doc. 1 at 5. Rather, Defendant claimed that conflict
preemption exists. Id. at 4. Critically, “conflict preemption is merely a defense, it is not

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a basis for removal.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d
1337, 1344 (11th Cir. 2009) (citing Gully v. First Nat'l Bank, 299 U.S. 109, 115–16
(1936)). Removal is generally improper “if based solely upon a plaintiff’s allegation of
an anticipated defense or if based upon a defendant’s responsive pleading.” Lazuka v.
FDIC, 931 F.2d 1530, 1534 (11th Cir. 1991) (citing Merrell Dow Pharms., 478 U.S. at
808, 809 n.6).
In its response to the Plaintiff’s motion, Defendant now argues that the FCCPA
is wholly preempted by TILA, but it fails to direct the Court to any case law in this
Circuit holding that TILA or any of its relevant sections or regulations have been found
to satisfy the Caterpillar Court’s definition as a completely preemptive federal statute.
Rather, Defendant engages in linguistic gymnastics to attempt to explain how the
FCCPA would be in conflict with TILA and Reg Z. But, in so doing, it implies
allegations that are not present in Plaintiff’s Complaint.
Here, it is undisputed Plaintiff’s Complaint alleges purely a state law cause of
action—a single claim for violation of a Florida statute. When only state-law claims
are asserted in a complaint, a claim “aris[es] under” federal law if a federal issue is:
“(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of
resolution in the federal court without disrupting the federal-state balance approved by
Congress.” Gunn v. Minton, 568 U.S. 251 (2013). Defendant argues that,
notwithstanding the well-pleaded complaint rule, this case is properly removed based
on complete preemption. As noted above, the basis of the claimed preemption,
however, is Defendant’s anticipated affirmative defense, and it is clear that “the
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presence of a federal defense does not make the case removable, even if the defense is
preemption and even if the validity of the preemption defense is the only issue to be
resolved in the case.” Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 F.3d
851, 854 (11th Cir. 1999) (citing Caterpillar, 482 U.S. at 393).
To determine whether the Plaintiff’s claim arises under federal law, the Court
will examine the Complaint’s “well pleaded allegations” and ignore Defendant’s
potential defenses. The Court will address the Gunn factors in the context of Plaintiff’s
allegations. Typically, there are only a “special and small category of cases” that satisfy
the Gunn test. Gunn, 568 U.S. at 258. The Complaint must meet all four factors to
confer subject matter jurisdiction. Id. Beginning with the first factor, the Court finds
that the federal issue was not “necessarily raised” in Plaintiff’s FCCPA claim, that is,
adjudication of the claim will not require application of TILA, Reg Z, or any other
federal law. To establish a claim under § 559.72(18), Plaintiff must prove that: (1)
Defendant communicated with Plaintiff; (2) in connection with the collection of a
debt; (3) where Defendant had actual knowledge that Plaintiff was represented by an
attorney with respect to such debt; and (4) Defendant had knowledge, or could readily
ascertain, the attorney’s name or address. See Daley v. Bono, 420 F. Supp. 3d 1247, 1257
(M.D. Fla. 2019). It does not appear that this claim would require the application of
federal law.
Based on a review of the pleadings before the Court, although an FCCPA claim
is “capable of resolution in federal court without disrupting the federal-state balance,”
as such claims are routinely handled by federal courts in conjunction with claims
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brought under the federal counterpart (FDCPA), here TILA or related regulations are
not actually disputed, nor are they substantial to the Plaintiff’s claim that Defendant
communicated directly with him instead of his counsel in violation of the FCCPA.
Substantiality is evaluated by looking to the “importance of the issue to the federal
system as a whole.” Gunn, 568 U.S. at 260. Issues that will “change the real-world
result” for future cases and future litigants are substantial. Id. at 261. On the record
before it, the Court finds the existence of a conflict questionable. Thus, the Court
cannot say that the pleadings raise issues important to the federal system as a whole.
In summary, federal issues do not appear on the face of the Complaint. The
federal issues raised by Defendant by way of its defenses do not confer federal question
jurisdiction. In any event, the Court has substantial doubt that the claim satisfies all
four factors of the Gunn test, and thus jurisdiction is lacking and remand is warranted.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Plaintiff’s Motion to Remand to State Court (Doc. 15) is GRANTED.

2.

This case is REMANDED to the County Court for the Fifth Judicial

Circuit, in and for Hernando County, Florida, small claims division.
3.

The Clerk is directed to transmit a certified copy of this Order to the Clerk

of the County Court for the Fifth Judicial Circuit, in and for Hernando County,
Florida.

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4.

The Clerk is further directed to terminate any pending motions and

deadlines and close this case.
DONE AND ORDERED in Tampa, Florida on January 7, 2021.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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