Copelin v. Wells Fargo Bank, N.A. et al

Filing 22

ORDER granting 9 Motion to Remand to State Court. Signed by Judge Thomas W. Thrash, Jr. on 6/18/18. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GRACE COPLEIN,

Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:17-CV-4860-TWT

WELLS FARGO BANK, N.A., et al.,
Defendants.
OPINION AND ORDER
This is an action for negligence and breach of contract. It is before the Court on
the Plaintiff Grace Coplein’s Motion to Remand [Doc. 9]. For the following reasons, the
Plaintiff’s Motion to Remand is GRANTED.
I. Background
The Plaintiff Grace Coplein is an 84 year old resident of Fulton County,
Georgia.1 The Defendant Wells Fargo is a California corporation authorized to conduct
business in Georgia. The Defendant Marilyn Davis is a Georgia resident, and is
employed as the manager of the Wells Fargo branch bank located at 1630 Mount
Vernon Road, Dunwoody, Georgia.

1

Compl. ¶ 1.

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Several years before the Complaint was filed, Ms. Coplein began regularly
withdrawing and transferring large sums of cash from her Wells Fargo checking
account to the business account of another Wells Fargo customer who, unbeknownst
to Ms. Coplein, eventually transferred the funds into his own personal account.2 This
began occurring on a fairly regular basis – as often as several times per month – for
amounts ranging from several hundred dollars to tens of thousands of dollars at a
time.3 Ms. Coplein conducted each transaction at the Dunwoody Wells Fargo branch,
and they were often conducted by the same teller and approved by the same manager,
the Defendant Ms. Davis.4 But according to the Complaint, no one at Wells Fargo
reported the transactions as suspicious.5
Eventually, Ms. Coplein’s family discovered that the man whom she had been
transferring the money to had been deceiving her and stealing her money.6 As a result,
Ms. Coplein filed a Complaint in the Superior Court of DeKalb County, Georgia on
October 31, 2017. The Complaint alleges that Wells Fargo and Ms. Davis failed to
identify and report the suspicious transactions in violation of Georgia law. In
particular, the Complaint alleges claims for negligence and negligence per se against

2

Compl. ¶¶ 7, 13 [Doc. 1-1].

3

Id. at ¶ 8.

4

Id. at ¶ 9.

5

Id. at ¶ 20.

6

Id. at ¶ 12. He has since been arrested for the alleged crimes. Id. at ¶ 14.

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both Defendants, as well as the additional claims of negligent supervision, and breach
of contract against Wells Fargo.
The Defendants removed the case to this Court on December 1, 2017. On
December 22, 2017, Ms. Coplein filed an Amended Complaint, adding additional
allegations and claims against Ms. Davis. The Plaintiff also moved to remand the
action to the Superior Court of DeKalb County.7 The Defendants have also moved to
dismiss the Amended Complaint for failure to state a claim.8
II. Legal Standard
The authority of federal courts is limited; that is, they may only hear those cases
which the Constitution and the Congress of the United States have authorized them
to hear.9 Any action originally filed in state court may be removed by a defendant to
federal court if it would otherwise meet the constitutional and statutory requirements
for original federal jurisdiction.10 “A removing defendant has the burden of proving the
existence of federal jurisdiction.”11 Due to the limited nature of federal jurisdiction,
“removal statutes are construed narrowly; where plaintiff and defendant clash about

7

See Am. Compl. [Doc. 8] and Motion to Remand [Doc. 9].

8

Defs.’ Mot. to Dismiss [Doc. 17].

9

See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

10

See 28 U.S.C. § 1441.

Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996),
abrogated by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
11

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jurisdiction, uncertainties are resolved in favor of remand” to the originating state
court.12
III. Discussion
The Plaintiff moves to remand the case to the Superior Court of DeKalb County.
The Defendants removed this case on the basis that Ms. Coplein and Wells Fargo are
diverse parties.13 Generally speaking, however, actions may not be removed on
diversity jurisdiction if any defendant is a citizen of the state in which the action was
originally brought.14 This is known as the “resident defendant” exception to removal.
Because the other Defendant – Ms. Davis – is a citizen of Georgia, this action would
not normally be removable under the general rule. However, a defendant may still
remove actions otherwise not removable if it can show that the resident defendant was
fraudulently joined.15 “Fraudulent joinder is a judicially created doctrine that provides
an exception to the requirement of complete diversity.”16 There are only a few
circumstances in which this occurs. “The first is when there is no possibility that the
plaintiff can prove a cause of action against the resident (non-diverse) defendant. The

12

Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

13

28 U.S.C. § 1332(a).

14

Id. at 28 U.S.C. § 1441(b)(2).

15

Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).

16

Id.

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second is when there is outright fraud in the plaintiff's pleading of jurisdictional
facts.”17
The Defendants bear the burden of establishing fraudulent joinder, and it is a
heavy one.18 The Defendants must show “by clear and convincing evidence that the
resident defendant was fraudulently joined.”19 “The determination of whether a
resident defendant has been fraudulently joined must be based upon the plaintiff's
pleadings at the time of removal, supplemented by any affidavits and deposition
transcripts submitted by the parties.”20 District courts must “evaluate the allegations
in the complaint under the pleading standards of the forum state,”21 in the “light most
favorable to the plaintiff and [they must] resolve any uncertainties about the applicable
law in the plaintiff's favor.”22 If Ms. Coplein has “even an arguable claim” – meaning
that “there is any possibility that the state law might impose liability on [Ms. Davis]
under the circumstances alleged in the complaint” – then remand is required.23

17

Id. (citations omitted).

18

Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).

19

Manley v. Ford Motor Co., 17 F. Supp. 3d 1375, 1381 (N.D. Ga. 2014).

Pacheco, 139 F.3d at 1380. See also Thermoset Corporation v. Building
Materials Corp of America, 849 F.3d 1313, 1317 (11th Cir. 2017); Manley, 17 F. Supp.
20

3d at 1381.
21

Manley, 17 F. Supp. 3d at 1381 (citing Stillwell v. Allstate Ins. Co., 663

F.3d 1329, 1334 (11th Cir. 2011)).
22
23

2007).

Pacheco, 139 F.3d at 1380.
Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1298-99 (11th Cir.

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In the original Complaint, Ms. Coplein alleged claims of negligence and
negligence per se against the Defendants. Generally speaking, to “recover for injuries
caused by another's negligence, a plaintiff must show four elements: a duty, a breach
of that duty, causation and damages.”24 Georgia has also adopted a negligence per se
statute, which provides for the recovery of damages upon breach of a statutory duty to
“act in the benefit of another or to refrain from doing an act which may injure another,”
even when the underlying statute – like the one here – provides “no cause of action .
. . in express terms.”25 “[F]or a violation of a statute to be negligence per se, it is
sufficient if the violation is capable of having a causal connection with the injury and
damage inflicted.

It is not essential that the injury inevitably flow from the

violation.”26 If a plaintiff successfully establishes negligence per se, “satisfying, as a
matter of law, the first two elements of a negligence claim . . . the plaintiff must go on
to demonstrate that the defendant's statutory breach was the proximate cause of the
plaintiff's injury.”27
The Defendants make three arguments as to why the claims against Ms. Davis
amount to fraudulent joinder. First, the Defendants argue that O.C.G.A. § 30-5-4, the

24

Smith v. Found, 343 Ga. App. 816, 818 (2017) (quoting Webb v. Day, 273

Ga. App. 491, 494 (2005)).
25

O.C.G.A. § 51-1-6.

Womac v. Oasis Goodtime Emporium I, Inc., 307 Ga. App. 323, 330 (2010)
(quoting Central Anesthesia Assocs., P.C. v. Worthy, 254 Ga. 728, 733 n.3 (1985)).
26

27

Amick v. BM & KM, Inc., 275 F. Supp. 2d 1378, 1381 (N.D. Ga. 2003).

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Georgia elder abuse reporting statute, does not create a private right of action.28 The
Defendants are correct in one sense. The underlying statute does not provide an
express right of action, and Georgia law is clear that courts are not to imply causes of
action where they are not explicitly expressed.29 However, to the extent that they
argue that this leaves the Plaintiff without any potential cause of action, they are
incorrect given the current state of Georgia law. The Georgia Court of Appeals has
recently held that O.C.G.A. §§ 51-1-6 and 51-1-8 may authorize a private right of action
“in conjunction with a statute ... that imposes a legal duty but does not expressly
provide a cause of action.” 30 This is also true for criminal statutes, which have often
been used as the basis for negligence per se claims in Georgia.31
28

Defs.’ Resp., at 11-12.

See Bellsouth Telecommunications, LLC v. Cobb County, 342 Ga. App.
323, 326 (2017) (“Georgia has longstanding precedential authority rejecting the
creation of implied private rights of action.”) (quotations omitted). See also O.C.G.A.
§ 9-2-8(a) (“No private right of action shall arise from any Act enacted after July 1,
2010, unless such right is expressly provided therein.”).
29

Id. at 329. See also Anthony v. American General Financial Services, Inc.,
287 Ga. 448, 460 (2010) (finding that statute did not provide private right of action, but
expressly stating that the plaintiffs “may be able to pursue civil liability against [the
defendant] under other applicable tort or contract laws,” including Section 51-1-6). But
see Murphy v. Bajjani, 282 Ga. 197, 201 (2007) (finding that violation of penal statute
did not give rise to a negligence per se claim, but doing so without any reference to or
engagement with Section 51-1-6).
30

See, e.g., Boyer v. Brown, 240 Ga. App. 100, 101 (1999) (finding that
violation of open container law constituted negligence per se); Val D'Aosta Co. v. Cross,
241 Ga. App. 583, 584-85 (1999) (finding violation of building code could constitute
negligence per se); Powell v. Carter, 59 Ga. App. 683, 2 S.E.2d 191, 194 (1939) (finding
that the misdemeanor violations of Georgia’s code regarding the operation of motor
vehicles are negligence per se); See also Anthony, 287 Ga. at 460 (finding that penal
statute did not provide private right of action, but expressly stating that the plaintiffs
31

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The underlying statute at issue in this case, O.C.G.A. § 30-5-4, clearly imposed
a specific, mandatory, and express duty on Ms. Davis. Sub-section (a)(1)(B) specifically
states that “[a]ny employee of a financial institution . . . having reasonable cause to
believe that a disabled adult or elder person has been exploited shall report” their
suspicions.32 All employees of Wells Fargo, including branch managers like Ms. Davis,
have a duty, shown by the use of the word “shall,” to sound the alarm if they have
reason to believe that an elder person is being exploited. The Court also finds that Ms.
Coplein was a member of the class of persons the statute intended to protect and that
she suffered the type of harm it was intended to prevent. By imposing a duty to report
on financial institutions and their employees, the law’s clear intent is to protect and
prevent the abuse of elderly citizens in the form of financial exploitation or deceit.
Because Ms. Coplein is an elderly citizen and alleges that she is the victim of financial
exploitation, it is possible that she can assert a claim for negligence per se if she can
prove that Ms. Davis violated her duty to report and that it caused her injuries.33
This brings us to the Defendants’ final argument: that the Plaintiff has not
alleged sufficient facts to support her claims against Ms. Davis. In particular, the

“may be able to pursue civil liability against [the defendant] under other applicable tort
or contract laws,” including Section 51-1-6).
32

O.C.G.A. § 30-5-4(a)(1)(B) (emphasis added).

Whether O.C.G.A. § 30-5-4 can serve as the basis for a negligence per se
claim is admittedly an open question. Thus, even if the Court found it unlikely that a
Georgia court would find in the affirmative on that question, the Court must still
“resolve any uncertainties about the applicable law in the plaintiff's favor.” Pacheco,
139 F.3d at 1380.
33

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Defendants argue that the Plaintiff needs to allege independent tortious conduct on the
part of Ms. Davis because Georgia law does not recognize “‘reverse’ vicarious
liability.”34 But the Defendants mischaracterize the Plaintiff’s claims against Ms.
Davis. She is not pursuing a “reverse” vicarious liability claim against Ms. Davis for
her employer’s failure to follow a statutory duty. Rather, she claims that Ms. Davis
herself violated a statutory duty when she failed to report the financial exploitation of
the Plaintiff. And as discussed above, O.C.G.A. § 30-5-4(a)(1)(B) imposes a statutory
duty on a financial institution’s employees, not just the institution itself.
Further, Georgia follows a notice pleading standard, which is different from the
federal approach post-Twombly35 and Iqbal.36 “Under this ‘notice’ theory of pleading it
is immaterial whether a pleading states ‘conclusions’ or ‘facts’ as long as fair notice is
given, and the statement of claim is short and plain. The true test is whether the
pleading gives fair notice and states the elements of the claim plainly and succinctly
. . .”37 “[A] plaintiff is not required to plead in the complaint facts sufficient to set out
each element of a cause of action so long as it puts the opposing party on reasonable
notice of the issues that must be defended against.”38

34

Defs.’ Resp., at 7.

35

550 U.S. 544 (2007).

36

556 U.S. 662 (2009).

37

Forsh v. Williams, 321 Ga. App. 556, 557 (2013) (quoting Ledford v.

Meyer, 249 Ga. 407, 408–409 (1982)).
38

Id. (quoting TechBios, Inc. v. Champagne, 301 Ga. App. 592, 593 (2009)).

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Here, the Plaintiff alleged that Ms. Davis was an employee of Wells Fargo,39 that
she approved many of the allegedly suspicious transactions conducted by Ms. Coplein,40
that she violated her statutory duty under O.C.G.A. § 30-5-4(a)(1)(B) to report these
suspicious transactions despite having reason to believe abuse was occurring,41 that
Ms. Coplein is an elderly person within the class of persons the statute is intended to
protect,42 and that she suffered further financial harm as a result of Ms. Davis’ failure
to report the transactions.43“If, within the framework of the complaint, evidence may
be introduced which will sustain a grant of relief to the plaintiff, the complaint is
sufficient.”44 Ms. Coplein has succinctly and clearly pleaded the elements of a claim for
negligence per se. Because the Complaint clearly put Ms. Davis on notice as to the
claims against her, the Court finds that it is sufficiently pleaded. As a result, the Court
finds that the Defendant Ms. Davis has not been fraudulently joined, and the Court
must therefore remand the case for lack of subject matter jurisdiction.

39

Compl. ¶ 9.

40

Id.

41

Id. at ¶ 38.

42

Id. at ¶ 40.

43

Id. at ¶¶ 41-42.

44

Forsh, 321 Ga. App. at 557-58 (quoting Koehler v. Massell, 229 Ga. 359,

361 (1972)).

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IV. Conclusion
For the reasons stated above, the Plaintiff’s Motion to Remand [Doc. 9] is
GRANTED.
SO ORDERED, this 18 day of June, 2018.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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