Busch et al v. Wells Fargo Home Mortgage, Inc. et al
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,
WELLS FARGO HOME MORTGATE
INC. and WELLS FARGO BANK, N.A.
Civil No. 5:16-cv-210-JMH
This matter is before the Court upon Plaintiffs’ Motion to
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.
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
Plaintiffs’ mortgage payments.
Removal to this Court pursuant to 28 U.S.C. §§ 1441 and 1446,
citing federal question jurisdiction. [DE 1-1].
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.
On June 24, 2016, Plaintiffs filed the instant Motion to
Remand pursuant to 28 U.S.C. § 1447(c).
oppose the Motion to Remand, contending that suits involving
violations of the FCRA may be properly removed to federal court.
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.
“[A] cause of action arises under federal law only when the
Metropolitan Life, 481 U.S. at 63.
“Any civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
district court . . . embracing the place where such action is
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.
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).
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).
Among other claims, Plaintiffs allege in their Complaint
that Defendants violated the FCRA, 15 U.S.C. § 1681.
appropriate United States district court without regard to the
under the FCRA, Plaintiffs contend removal to this Court is
“inconsistent with the applicable Act,” and therefore, improper.
To support this argument, Plaintiffs cite a pair of out-ofcircuit cases, neither of which the Court finds persuasive.
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).
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
evidence of congressional intent to restrict removal from state
to federal court.
Westinghouse, 373 F. Supp. at 469.
comparison between the FRCA and the FLSA was primarily drawn
the holding in Ruth.
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).
U.S.C. § 1681p to hold that a case involving the FCRA was not
Id. at 299.
Crucially, however, the plaintiff in
Harper sued only for violation of the Michigan constitution and
violations of the FCRA on the face of the complaint.
“Defendant relies upon Broom v. TRW Credit Data, 732 F. Supp. 66
(E.D. Mich. 1990). However, in that case, the plaintiff alleged
Therefore, removal was proper under the well-pleaded complaint
Harper v. TRW, Inc., 881 F. Supp. 294, 299 (E.D. Mich.
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,
As such, the Court finds that this case was properly
removed to federal court pursuant to 28 U.S.C. § 1441(a).
Barrett v. Fifth Third Bank, 2013 WL 6576853 at *3 (W.D. Ky.
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”).
motion to remand must be denied.
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.
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?