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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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