Busch et al v. Wells Fargo Home Mortgage, Inc. et al
Filing
13
MEMORANDUM OPINION & ORDER: Plaintiff's Motion 7 to Remand is DENIED. Signed by Judge Joseph M. Hood on 07/27/2016.(LC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
KEVIN M. BUSCH and
LESLIE J. BUSCH,
Plaintiffs,
V.
WELLS FARGO HOME MORTGATE
INC. and WELLS FARGO BANK, N.A.
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Civil No. 5:16-cv-210-JMH
MEMORANDUM OPINION
AND ORDER
Defendants.
****
This matter is before the Court upon Plaintiffs’ Motion to
Remand
to
response
State
to
Court.
Plaintiffs’
[DE
7].
Motion
Defendants
[DE
8]
to
have
which
filed
a
Plaintiffs
replied [DE 10], thus, Plaintiffs’ Motion is ripe for review.
Having reviewed the motion, response, and reply, as well as the
Notice of Removal and Complaint [DE 1], and being otherwise
adequately advised, the Court will deny Plaintiffs’ Motion to
Remand for the reasons set forth below.
I.
On
May
27,
2016,
BACKGROUND
Plaintiffs,
Kevin
and
Leslie
Busch,
residents of Lexington, Kentucky, filed suit against Defendants,
Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage, Inc., in
Fayette Circuit Court asserting violations of the Fair Credit
Reporting Act (“FCRA” or the “Act”) and a myriad of state law
claims
as
a
result
of
Defendants’
Plaintiffs’ mortgage payments.
On
June
21,
2016,
alleged
misapplication
of
[DE 1-2].
Defendants
timely
filed
a
Notice
of
Removal to this Court pursuant to 28 U.S.C. §§ 1441 and 1446,
citing federal question jurisdiction. [DE 1-1].
Defendants
aver
that
this
Court
has
Specifically,
original
jurisdiction
pursuant to 28 U.S.C. § 1331 because questions of federal law
appear on the face of Plaintiffs’ complaint under the FCRA, and
therefore Plaintiffs’ claims “arise under” federal law.
Id.
On June 24, 2016, Plaintiffs filed the instant Motion to
Remand pursuant to 28 U.S.C. § 1447(c).
[DE 7].
Defendants
oppose the Motion to Remand, contending that suits involving
violations of the FCRA may be properly removed to federal court.
[DE 8].
II. STANDARD
District courts have original jurisdiction over “federal
question” cases which arise “under the Constitution, laws, or
treaties of the United States.” Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987) (quoting 28 U.S.C.
§ 1331).
“[A] cause of action arises under federal law only when the
plaintiff’s
law.”
well-pleaded
complaint
Metropolitan Life, 481 U.S. at 63.
2
raises
issues
of
federal
“Any civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may
be
removed
by
the
defendant
or
the
defendants,
to
the
district court . . . embracing the place where such action is
pending.”
28 U.S.C. § 1441(a).
The burden of proving the
existence of federal jurisdiction falls on the removing party.
Eastman v. Marine Mech. Corp., 438 F.3d 544, 550.
2006).
(6th Cir.
Removal statutes are to be narrowly construed “because
they implicate concerns of federalism.”
Long v. Bando Mfg. of
America, Inc., 201 F.3d 754, 757 (6th Cir. 2000).
“federal
jurisdiction
should
be
exercised
only
Therefore,
when
it
is
clearly established, and any ambiguity . . . should be resolved
in favor of remand.” Brierly v. Alusuisse Flexible Packaging,
Inc., 184 F.3d 527, 534 (6th Cir. 1999).
III. DISCUSSION
Among other claims, Plaintiffs allege in their Complaint
that Defendants violated the FCRA, 15 U.S.C. § 1681.
The
FCRA
provides
that
an
action
“may
be
[DE 1-1].
brought
in
any
appropriate United States district court without regard to the
amount
in
controversy,
jurisdiction.”
15
U.S.C.
or
§
in
any
1681p.
other
court
Despite
of
competent
asserting
claims
under the FCRA, Plaintiffs contend removal to this Court is
3
“inconsistent with the applicable Act,” and therefore, improper.
[DE 7-1].
To support this argument, Plaintiffs cite a pair of out-ofcircuit cases, neither of which the Court finds persuasive.
See
DE 7-1, citing Ruth v. Westinghouse Credit Co., 373 F. Supp.
468, 469 (W.D. Okla. 1974); Griffin v. Hooper-Holmes Bureau,
Inc., 413 F. Supp. 107, 108 (M.D. Fla. 1976).
In Westinghouse,
the court analogized the FCRA’s jurisdictional language to that
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b),
which traditionally preempted removal to federal court, holding
that
the
either/or
grant
of
jurisdiction
in
the
FCRA
was
evidence of congressional intent to restrict removal from state
to federal court.
Westinghouse, 373 F. Supp. at 469.
The
comparison between the FRCA and the FLSA was primarily drawn
because
both
statutes
jurisdiction” language.
the holding in Ruth.
employ
Id.
the
“court
of
competent
The Griffin court concurred with
Griffin, 413 F. Supp. at 108.
The lone Sixth Circuit authority Plaintiffs cite is Harper
v. TRW, Inc., 881 F. Supp. 294 (E.D. Mich. 1995).
the
court
seized
upon
the
“competent
court”
In Harper,
language
of
15
U.S.C. § 1681p to hold that a case involving the FCRA was not
removable.
Id. at 299.
Crucially, however, the plaintiff in
Harper sued only for violation of the Michigan constitution and
4
for
invasion
of
distinguishable
privacy,
from
cases
which
in
the
which
court
the
made
plaintiff
violations of the FCRA on the face of the complaint.
particular,
footnote
5
of
Harper
clear
unequivocally
is
alleges
Id.
In
explains:
“Defendant relies upon Broom v. TRW Credit Data, 732 F. Supp. 66
(E.D. Mich. 1990). However, in that case, the plaintiff alleged
a
violation
of
the
FCRA
on
the
face
of
his
complaint.
Therefore, removal was proper under the well-pleaded complaint
rule.”
Harper v. TRW, Inc., 881 F. Supp. 294, 299 (E.D. Mich.
1995).1
Here, however, unlike in Harper where the plaintiff sued
only under state law, Plaintiffs allege on the face of their
complaint that Wells Fargo violated the FCRA. [DE 1-2 at 5,
Count IV].
As such, the Court finds that this case was properly
removed to federal court pursuant to 28 U.S.C. § 1441(a).
See
Barrett v. Fifth Third Bank, 2013 WL 6576853 at *3 (W.D. Ky.
Dec.
13,
2013)(denying
motion
to
remand
where
the
plaintiff
1 The Court also notes that, in addition to the fact that Plaintiffs
assert a violation of the FCRA on the face of their complaint, the
rationale of Westinghouse and Griffin has been sharply criticized.
See e.g., Haun v. Retail Credit Co., 420 F. Supp. 859, 862 (W.D. Pa.
1976)(noting that the nascent reliance upon the FLSA to support a
restriction on the right to remove an FCRA action was misleading, as
the language itself is not as similar as some courts have suggested;
the FLSA provides that a plaintiff may “maintain” an action in “any
court of competent jurisdiction,” but the FCRA denotes that a suit may
be “brought” under the same standard, which is more permissive
language than “maintain”).
5
asserted
an
independent
FCRA
claim).
Therefore,
Plaintiff’s
motion to remand must be denied.
V. CONCLUSION
Accordingly, for all of the reasons stated above, IT IS
ORDERED that Plaintiffs’ Motion to Remand [DE 7] is DENIED.
This the 27th day of July, 2016.
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