Boyd v. Wells Fargo Financial Bank, Inc. et al
Filing
25
ORDER denying Defendant Wells Fargo Bank, N.A.'s 4 Motion to Dismiss; denying Plaintiff Michael Boyd's 5 Motion to Remand to State Court. Defendant shall re-submit its motion as a Motion for Summary Judgment within twenty-one (21) days. Signed by Chief Judge Lisa G. Wood on 4/11/2017. (ca)
3it
tUmteli States;
Conrt
for tfie ^ontlient Btsitrtrt of 4leorgta
iimtioiiitck SBtbtOton
FILED
Scott L. Poff, Clerk
United States District Court
By casbell at 8:31 am, Apr 11, 2017
MICHAEL BOYD,
Plaintiff,
CV 216-151
V.
WELLS FARGO FINANCIAL BANK,
INC., and WELLS FARGO BANK,
N.A.
Defendants.
ORDER
Pending
before
the
Court
is
Plaintiff
Michael
Boyd's
{""Plaintiff") Motion to Remand (Dkt. No. 5) and Defendant Wells
Fargo Bank, N.A.'s
For the
Defendant") Motion to Dismiss (Dkt. No. 4).
reasons set forth
below.
Plaintiff's Motion to
Remand
(Dkt. No. 5) will be DENIED, and Defendant's Motion to Dismiss
(Dkr. No. 4) will be DENIED.
FACTUAL BACKGROUND
The following allegations are taken solely from Plaintiff s
Complaint.
times
in
Dkt.
August
No.
1-1.
2009,
Plaintiff asserts that at
Defendant
regarding Plaintiff's indebtedness.
published
false
JA. p. 127 SI 3.
various
statements
Plaintiff
asserts that these statements adversely affected his ability to
A0 72A
(Rev. 8/82)
obtain
a
loan.
5
5.
Plaintiff
further
asserts
that
he
notified various third-party credit reporting agencies (^'CRA")
that
these
statements
were
false,
correct the faulty information.
but
JA. 11.
Defendant
failed
to
It appears that all
of these claims are brought under the Fair Credit Reporting Act
(^'FCEU^") and are therefore subject to federal jurisdiction.
PROCEDURAL HISTORY
Plaintiff originally filed this action on September 4, 2009
in Glynn County State Court.
Dkt. No. 1-1 p. 6.
At that time,
the only Defendant was Wells Fargo Bank, Inc. (^'WFBI").
Sheriff's Office served process on a WFBI employee.
WFBI
did
not
make
an
appearance
before
the
state
The
p. 9.
court
and
default judgment was granted in favor of Plaintiff on November
5, 2014.
Id. p. 17.
On April 5, 2016, Defendant moved to set aside the judgment
on the bases that WFBI was a non-existent entity and Defendant
was not even aware of the suit until 2015.
The state court set
aside its previous judgment, finding WFBI did not exist as a
separate entity and that the WFBI employee was not an authorized
agent of Defendant.
moved to add
Id.
p.
110.
JA. p. 104.
Defendant as a
The
without elaboration.
state
On August 17, 2016, Plaintiff
party in the state court action.
court
JA. p. 111.
granted
this
request,
though
Defendant ultimately removed
this action to this Court on November 10, 2016.
Dkt. No. 1.
DISCUSSION
I.
Plain-biff s Motion to Remand
The
Court
Under
28
first
considers
U.S.C. § 1441(a),
a
Plaintiff's
defendant
in
Motion
a
to
case
Remand.
originally
filed in state court may remove the case to federal district
court
if
the
jurisdiction.
be
remanded
district
court
could
have
exercised
original
Under 28 U.S.C. § 1447(c), however, the case must
to
state
court
^MiJf
at
any
time
before
final
judgment it appears that the district court lacks subject matter
jurisdiction."
Plaintiff's
sole
U.S.C. § 1446(b)
argument
requires
in
remand
favor
of
because
remand
is
Defendant
that 28
was
served
with this action in state court in September 2009, but did not
remove until November 10, 2016.
Dt. No. 5-1 p. 1.
Plaintiff asserts that removal was untimely.
Therefore,
Under 28 U.S.C. §
1446(b), notice of removal must
be filed thirty days after the
receipt by the
defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for
relief upon which such action or proceeding is based,
or within thirty days after service of summons
upon
the defendant if such initial pleading has then been
filed in court and is not required to be served on the
defendant, whichever period is shorter.
Applying this rule, the Eleventh Circuit has found that ^^a
defendant
procedure
has
prior
no
to
obligation
his
to
receipt
of
participate
formal
in
service
any
of
removal
judicial
process."
1208
Bailey v. Janssen Pharmaceutica, Inc., 536 F.Sd 1202,
(11th
Defendant
2008).
received
Defendant's
original
Cir.
formal
removal
complaint
Dkt. No. 1-1.
Therefore,
was
was
service
the
Court
looks
of
process
to
timely.
It
appears
that
actually
filed
on
to
when
determine
if
Plaintiff's
September
9,
2009.
The record reflects that Defendant was formally
served on October 12, 2016.
Dkt. No. 1-1 p. 130.
Defendant
filed its notice of removal on November 10, 2016 (Dkt. No. 1)—
within the 30-day deadline.
Therefore, Defendant timely removed
this matter, and Plaintiff's Motion to Remand must be denied.
II.
Defendant's Motion to Dismiss
Defendant
asserts
that
Plaintiff s
Complaint
should
be
dismissed because it was not brought within the two-year statute
of limitation for
Section
became
While
FCRA claims.
1681p(l)).
aware
the
undisputed
of
the
original
that
September 2016.
There
Dkt. No.
is
alleged
no
Defendant
dispute
FCRA
complaint
was
was
4
(citing 15 U.S.C.
here
violation
filed
not
in
against
added
Dkt. No. 1-1 pp. 6, 126.
that
as
a
Plaintiff
August
WFBI,
party
2009.
it
is
until
Therefore, there is
no dispute that the statute of limitations has run as to claims
against Defendant.
Instead, Plaintiff relies on the ''relation
back" rule set forth in Federal Rule of Civil Procedure 15(c).^
^ At the outset, the Court notes that federal law, rather than state law, is
binding regarding the relation-back issue, because the limitations period is
set by federal law here. Saxton v. ACF Indus., Inc., 254 F.Sd 959, 961 (11th
The purpose of the rule is to allow amended complaints to
relate
back
to
original
filings
for
statute
of
limitations
purposes when the amended complaint corrects a mistake about the
identity of the defendant.
21, 29 (1986); Hill v.
See Schiavone v. Fortune, 477 U.S.
U.S. Postal Serv., 961
F.2d 153 (11th
Cir. 1992) (permitting pro se plaintiff's amended complaint to
relate back when he mistakenly named postal service instead of
postmaster
Worthington
as
defendant,
v.
Wilson,
contrary
8
F.3d
to
statutory
1253,
1256
requirements);
(7th
Cir.
1993)
(holding relation-back applies where the amendment is made ''to
correct a misnomer of a defendant where the proper defendant is
already before the court and the effect is merely to correct the
name under which he is sued.").
Plaintiff
received
such
must
notice
plausibly
of
the
allege
that
institution
of
Defendant
the
action
(1)
that
has
it
will not be prejudiced in maintaining its defense on the merits
and
(2)
knew
or
should
have
known
that,
but
for
a
mistake
concerning the identity of the proper party, the action
have been brought against it.
would
Fed. R. Civ. P. 15(C)(1)(c)(i)-
(ii).
Cir. 2001) (en banc).
Plaintiff appears to assert that the state court has
already ruled on the relation-back issue.
Dkt. No. 7 p. 5.
Yet, since this
is a question of federal procedure, the state court would not have
jurisdiction over that issue.
Regardless, the state court simply allowed
Plaintiff to add Defendant as a party, with no analysis regarding that issue.
Dkt. No. 1-1 p. 111.
statute of limitations
otherwise.
As such, to the extent Plaintiff argues that the
issue has already been settled, the record shows
The Court finds that it is unable to answer this question
on the face of the complaint alone.
Overlapping discovery was
conducted at the state court which is now attached as an exhibit
to
Defendant's
However,
render
the
a
Notice
Court
Rule
of
cannot
12(b)(6)
Removal.
properly
ruling.
Dkt.
rely
To
on
this
remedy
this
No.
1-1.
exhibit
to
procedural
obstacle, the Court will deny Defendant's motion to dismiss, but
request
that
Defendant
Summary Judgment.
denied
at
this
re-submit
its
motion
as
a
Motion
for
Therefore, Defendant's Motion to Dismiss is
time.
It
may,
however,
be
converted
into
a
motion for summary judgment.
CONCLUSION
For the reasons set forth above.
Motion
to
Remand
(Dkt.
No.
5)
is
Plaintiff Michael Boyd's
DENIED
and
Defendant
Wells
Fargo Bank, N.A.'s Motion to Dismiss (Dkt. No. 4) is DENIED.
Defendant
shall
re-submit
its
motion
as
a
Motion
for
Summary
Judgment within 21 days.
SO ORDERED, this 11th day of April, 2017.
LISA GODBEY WO
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?