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)

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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<DD, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

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