PATE v. PRECHECK INC
ORDER DENYING 5 Motion to Remand. Pate is NOTIFIED of his right to amend his complaint and submit a response brief. As explained above, if Pate fails to amend his complaint and the applicable statute of limi tations has expired since he filed the original complaint, the Pate will be barred from refiling following dismissal. If Pate fails to file a brief in opposition to the motion to dismiss, a final judgment may be rendered against him if otherwise app ropriate under law. Any amendment or response brief must be filed WITHIN 21 DAYS of the date Pate was served with Precheck's motion to dismiss. Fed. R. Civ. P. 15(a)(1)(B); M.D. Ga. Civ. R. 7.2. Thereafter, the Court will consider Prechecks motion to dismiss and any opposition to the same filed by Pate and issue its ruling. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/7/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JOHN L. PATE
CIVIL ACTION NO. 5:17-CV-77 (MTT)
I. MOTION FOR REMAND DENIED
Plaintiff John L. Pate move to remand this case back to the Magistrate Court of
Houston County, Georgia. Doc. 5. Pate argues that “[r]emand is appropriate because
there is no basis for this Court to exercise jurisdiction over the state law claims alleged
by the Plaintiff in his Complaint.” Id. at 1. Pate acknowledges that he brought a claim
under “the Fair Credit Reporting Act, 15 U.S.C. § 1681,” and “[a]n action to enforce any
liability created under [the FCRA] may be brought in any appropriate United States
district court, without regard to the amount in controversy.” Id. at 2 (quoting 15 U.S.CA.
§ 1681p). Pate recognizes that “28 U.S.C. § 1441(a), authorizes a defendant to remove
from state court to federal court ‘any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.’” Id. at 2 (quoting 28 U.S.C.
But Pate emphasizes that jurisdiction over an FCRA claim is also proper in “any
other court of competent jurisdiction,” such as the Magistrate Court. Id. at 2 (quoting 15
U.S.CA. § 1681p). Pate argues that “[b]ecause the Fair Credit Reporting Act allows for
claims to be filed in state courts, and a full two-thirds of the original claim against the
Defendant are for alleged violations of state law, the Plaintiffs [sic] right to relief is not
dependent upon resolution of a substantial question of federal law; therefore, this Court
does not have original jurisdiction over this civil action.” Id. Pate is wrong.
Removal of an action containing state law claims is proper so long as the state
law claims form part of the same case or controversy as an accompanying federal
claim. See City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 165 (1997); see also
28 U.S.C. §§ 1367(a), 1441(a). Pate’s FCRA claim is a federal claim. Pate’s motion for
remand is accordingly DENIED.
II. NOTIFICATION OF DUTY TO RESPOND
Defendant Precheck, Inc. (Precheck) filed a motion to dismiss and a brief in
support thereof on February 27, 2017. Doc. 4. In an effort to afford Pate, who is
proceeding pro se, adequate notice and time to respond to Precheck’s motion, the
following notice is given.
When considering a motion to dismiss, the Court must accept as true all facts set
forth in the plaintiff’s complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include sufficient
factual allegations “to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do.”
Id. Although the complaint must contain factual allegations that “raise a reasonable
expectation that discovery will reveal evidence of” the plaintiff’s claims, id. at 556, “Rule
12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes
a savvy judge that actual proof of those facts is improbable.’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
Right to Amend the Complaint
Precheck’s motion to dismiss alleges there are certain deficiencies in Pate’s
complaint. In some situations, deficiencies in a complaint may be cured with a more
carefully drafted complaint. Under Federal Rule of Civil Procedure 15(a)(1)(B), a
plaintiff “may amend its pleadings once as a matter of course within . . . 21 days after
service of a motion under Rule 12(b) . . . .” If Pate thinks, based on Precheck’s motion
to dismiss, that a more carefully drafted complaint or more specific allegations would
state a claim, he has 21 days to amend his complaint. Pate should be aware that a
dismissal could prevent him from refiling his claims if the running of the applicable
statute of limitations would bar further litigation. Brennan v. Comm’r, Ala. Dep’t of Corr.,
626 F. App’x 939, 946 n.4 (11th Cir. 2015). Pate should, therefore, take the opportunity
to amend his complaint to cure, if possible, the deficiencies addressed in Precheck’s
motion to dismiss.
Right to File Response Brief
Under the procedures and policies of this Court, motions to dismiss are normally
decided on briefs. Pate may submit his argument to this Court by filing a brief opposing
Precheck’s motion to dismiss. Unless the Court has granted prior permission, any brief
should not exceed 20 pages. M.D. Ga. Civ. R. 7.4.
Consequences for Failing to Respond or Amend
FAILURE OF PATE TO RESPOND TO AND REBUT THE
LEGAL ARGUMENTS SET FORTH IN PRECHECK’S
BRIEF MAY RESULT IN THESE STATEMENTS BEING
ACCEPTED AS UNCONTESTED AND CORRECT.
The Court could grant judgment to Prechecks and there would be no trial or
further proceedings. Accordingly, Pate is NOTIFIED of his right to amend his complaint
and submit a response brief. As explained above, if Pate fails to amend his complaint
and the applicable statute of limitations has expired since he filed the original complaint,
the Pate will be barred from refiling following dismissal. If Pate fails to file a brief in
opposition to the motion to dismiss, a final judgment may be rendered against him if
otherwise appropriate under law. Any amendment or response brief must be filed
WITHIN 21 DAYS of the date Pate was served with Precheck’s motion to dismiss. Fed.
R. Civ. P. 15(a)(1)(B); M.D. Ga. Civ. R. 7.2. Thereafter, the Court will consider
Precheck’s motion to dismiss and any opposition to the same filed by Pate and issue its
SO ORDERED, this 7th day of March, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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