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

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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. ) ) ) ) ) ) ) ) ) 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. 6  

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