Hood v. Bank of America Corporation et al

Filing 17

ORDER denying 9 Motion to Remand, vacating remand-related stay, and extending consolidation. Signed by District Judge William H. Barbour, Jr., on 07/31/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JIM HOOD, ATTORNEY GENERAL OF
THE STATE OF MISSISSIPPI, ex rel.
THE STATE OF MISSISSIPPI
VS.

PLAINTIFF

CIVIL ACTION NO. 3:12-cv-565-WHB-LRA

JPMORGAN CHASE & CO., and
CHASE BANK USA, N.A.

DEFENDANTS

CONSOLIDATED WITH
JIM HOOD, ATTORNEY GENERAL OF
THE STATE OF MISSISSIPPI, ex rel.
THE STATE OF MISSISSIPPI
VS.

PLAINTIFF
CIVIL ACTION NO. 3:12-cv-571

HSBC BANK NEVADA, N.A.
HSBC CARD SERVICES, INC.; and
HSBC BANK USA, N.A.

DEFENDANTS

CONSOLIDATED WITH
JIM HOOD, ATTORNEY GENERAL OF
THE STATE OF MISSISSIPPI, ex rel.
THE STATE OF MISSISSIPPI
VS.

PLAINTIFF
CIVIL ACTION NO. 3:12-cv-572

CITIGROUP INC.; CITIBANK, N.A.; and
DEPARTMENT STORES NATIONAL BANK

DEFENDANT

CONSOLIDATED WITH
JIM HOOD, ATTORNEY GENERAL OF
THE STATE OF MISSISSIPPI, ex rel.
THE STATE OF MISSISSIPPI

PLAINTIFF

VS.

CIVIL ACTION NO. 3:12-cv-573

DISCOVER FINANCIAL SERVICES, INC.;
DISCOVER BANK; DFS SERVICES, L.L.C.; and
AMERICAN BANKERS MANAGEMENT COMPANY, INC.

DEFENDANTS

CONSOLIDATED WITH
JIM HOOD, ATTORNEY GENERAL OF
THE STATE OF MISSISSIPPI, ex rel.
THE STATE OF MISSISSIPPI
VS.

PLAINTIFF
CIVIL ACTION NO. 3:12-cv-574

BANK OF AMERICA CORPORATION
and FIA CARD SERVICES, N.A.

DEFENDANTS

CONSOLIDATED WITH
JIM HOOD, ATTORNEY GENERAL OF
THE STATE OF MISSISSIPPI, ex rel.
THE STATE OF MISSISSIPPI
VS.

PLAINTIFF
CIVIL ACITON NO. 3:12-cv-575

CAPITAL ONE BANK (USA) N.A., and
CAPITAL ONE SERVICES, LLC

DEFENDANTS

OPINION AND ORDER
This cause is before the Court on the Motions of Plaintiff to
Remand.

Having considered the pleadings, the attachments thereto,

as well as supporting and opposing authorities, the Court finds the
Motions are not well taken and should be denied.

2

I.

Factual Background and Procedural History

In June of 2012, the State of Mississippi, by and through its
Attorney General, Jim Hood (“Hood”), brought the following lawsuits
in the Chancery Court for the First Judicial District of Hinds
County, Mississippi “to protect citizen consumers of Mississippi”:
Jim Hood, Attorney General of the State of Mississippi,
ex rel. the State of Mississippi v. JPMorgan Chase & Co.
and Chase Bank USA, N.A. (“Chase Action”)
Jim Hood, Attorney General of the State of Mississippi,
ex rel. the State of Mississippi v. HSBC Bank Nevada,
N.A.; HSBC Card Services, Inc.; and HSBC Bank USA, N.A.
(“HSBC Action”)
Jim Hood, Attorney General of the State of Mississippi,
ex rel. the State of Mississippi v. Citigroup Inc.;
Citibank, N.A.; and Department Stores National Bank
(“Citigroup Action”)
Jim Hood, Attorney General of the State of Mississippi,
ex rel. the State of Mississippi v. Discover Financial
Services, Inc.; Discover Bank; DFS Services, L.L.C.; and
American Bankers Management Company, Inc. (“Discover
Action”)
Jim Hood, Attorney General of the State of Mississippi,
ex rel. the State of Mississippi v. Bank of America
Corporation and FIA Card Services, N.A. (“BOA Action”)
Jim Hood, Attorney General of the State of Mississippi,
ex rel. the State of Mississippi v. Capital One Bank
(USA) N.A. and Capital One Services, LLC (“Capital One
Action”)1
Amended Complaints were filed in each lawsuit in August of 2012.
The subject lawsuits are predicated on the following allegations:
1

The lawsuits are docketed in this Court as follows:
Chase Action
Civil Action No. 3:12-cv-565
HSBC Action
Civil Action No. 3:12-cv-571
Citigroup Action
Civil Action No. 3:12-cv-572
Discover Action
Civil Action No. 3:12-cv-573
BOA Action
Civil Action No. 3:12-cv-574
Capital One Action Civil Action No. 3:12-cv-575
3

These actions stem from the Defendants’ marketing,
selling, and administering to Mississippi consumers feebased products, which are ancillary to their credit
cards.
Defendants market such ancillary products as protection
for consumers against improper or unauthorized charges on
their credit cards, identity theft, and lost or stolen
credit cards and/or as providing benefits in the event of
unemployment or disability. Each ancillary product is
marketed only to the Defendants’ current card holders,
and the products themselves are attached to the
cardholders’ specific account at issue.
Upon information and belief, when consumers apply for and
receive Defendants’ credit cards, a process is triggered
whereby a consumer can unknowingly and unintentionally
sign up to receive ancillary products.
Additionally, Defendants often enroll consumers in these
products even though the consumers did not assent to pay
for them. This process is referred to as “slamming.”
Enrollment may be based on highly deceptive and
misleading telemarketing calls, forged or non-existent
mailers or online applications, or nothing at all. In
each instance, unknowing consumers are hit with monthly
fees without their meaningful consent or understanding
that their credit card will be charged for these
products.
Defendants are in a position to do this
because, unlike a typical marketer or seller, they are
already the consumer’s credit card company and already
have their credit card number.
Further, for certain types of ancillary products ... that
all offer similar coverage (hereinafter collectively
referred to as “Payment Protection Plans” or “Plans”),
that purport to pay the consumer’s required minimum
monthly payment for a limited period of time under
certain triggering circumstances, such as involuntary
unemployment, illness, or changes in family status, thus
preventing the account from becoming delinquent,
Defendants make no effort to determine whether consumers
are even eligible for the benefits at the time of sale.
As a consequence, Defendants bill ineligible Mississippi
citizens for this coverage, even though their status at
the time of enrollment prevents them from receiving
benefits under the terms of these Payment Protection
Plans.
The Defendants commit unfair and deceptive business
practices and violate statutory and common law by
4

charging consumers for ancillary products, including
Payment Protection Plans, who either did not want them or
were not entitled to benefit from them, and by the unfair
and deceptive manner in which Defendants offer and
administer claims for benefits by consumers.
As a result of these unfair and deceptive practices,
Defendants have amassed substantial sums of money with
virtually no benefits to Mississippi citizens who are
nevertheless charged for these products month in and
month out.
See Chase Action, Am. Compl., ¶¶ 1-7; HSBC Action, Am. Compl., ¶¶
1-7; Citigroup Action, Am. Compl., ¶¶ 1-7; Discover Action Am.
Compl., ¶¶ 1-7; BOA Action Am. Compl., ¶¶ 1-7; Capital One Action
Am.

Compl.,

¶¶

1-7.

The

State

further

alleges

that

“[b]y

marketing, promoting, advertising and selling Payment Protection
Plans, Defendants have engaged in unfair methods of competition
affecting commerce and unfair or deceptive trade practices” thereby
violating

the

Mississippi

Consumer

Protection

Act

(“MCPA”),

codified at Mississippi Code Annotated Section 95-24-1 et. seq.
See Chase Action, Am. Compl., ¶¶ 70-78; HSBC Action, Am. Compl., ¶¶
71-79; Citigroup Action, Am. Compl., ¶¶ 71-79; Discover Action, Am.
Compl., ¶¶ 75-83; BOA Action, Am. Compl., ¶¶ 70-78; Capital One
Action, Am. Compl., ¶¶ 70-78.

Through its Amended Complaints, the

State of Mississippi seeks the following: (1) injunctive relief
barring Defendants from engaging in unfair or deceptive practices
that violate the MCPA;2 (2) monetary judgments “for disgorgement

2

Under the MCPA: “Whenever the Attorney General has reason
to believe that any person is using, has used, or is about to use
any method, act or practice prohibited by Section 75-24-5, and
that proceedings would be in the public interest, he may bring an
action in the name of the state against such person to restrain
by temporary or permanent injunction the use of such method, act
5

and restitution of monies acquired by Defendants by means of any
practice

prohibited

by

the

MCPA”;3

(3)

declarations

that

the

alleged acts of Defendants constitute multiple violations4 of the
MCPA, and civil penalties for each alleged violation;5 and (4)
attorneys fees and costs as permitted under the MCPA as well as
pre- and post-judgment interest.
Each of the lawsuits was removed to this Court.
Notices

of

Removals,

Defendants

allege

that

the

In their

exercise

of

diversity-based federal subject matter jurisdiction is proper under
the Class Action Fairness Act (“CAFA”), codified at 28 U.S.C. §
1332(d), because each of the subject lawsuits is a class action

or practice...”

MISS. CODE ANN. § 75-24-9.

3

Under the MCPA: “The court may make such additional
orders or judgments, including restitution, as may be necessary
to restore to any person in interest any monies or property, real
or personal, which may have been acquired by means of any
practice prohibited by this chapter ...” MISS. CODE ANN. § 75-2411.
4

According to Hood, each of the following constitutes a
separate violation of the MCPA: (1) enrolling a consumer in a
Payment Protection Plan without his or her consent; (2) enrolling
a consumer in a Payment Protection Plan who was ineligible for
benefits under the Plan due to age, work status, disability,
etc.; (3) enrolling a consumer in a Payment Protection Plan
without disclosing all of the Plan’s material restrictions,
limitations, and exclusions; and (4) failing to refund any
premium that was paid for a Payment Protection Plan. See e.g.
Chase Action, Am. Compl. at ¶ 75.
5

Under the MCPA: “In any action brought under Section 7524-9, if the court finds from clear and convincing evidence, that
a person knowingly and willfully used any unfair or deceptive
trade practice, method or act prohibited by Section 75-24-5, the
Attorney General, upon petition to the court, may recover on
behalf of the state a civil penalty in a sum not to exceed Ten
Thousand Dollars ($10,000.00) per violation....” MISS. CODE ANN. §
75-24-19(1)(b).
6

and/or a mass action under the terms of that Act.

Defendants

further allege that the exercise of federal question subject matter
jurisdiction is proper because the state law claims alleged in the
subject lawsuits are either (1) completely pre-empted under the
National Bank Act (“NBA”), codified at 12 U.S.C. §§ 85-86, or the
Depository Institutions Deregulation and Monetary Control Act of
1980 (“DIDA”), codified at 12 U.S.C. § 1331(d); or (2) raise a
substantial federal question that must be resolved in accordance
with the NBA.
Following removal, Motions to Remand were filed in each of the
subject lawsuits.

The lawsuits were thereafter consolidated for

the purpose of deciding those Motions.
[Docket Nos. 19 and 20].

See Chase Action, Order

The lawsuits were later stayed pending a

decision by the United States Court of Appeals for the Fifth
Circuit in Mississippi ex re. Hood v. AU Optronics Corp., et al.,
Appeal No. 12-60704.

See Order [Docket No. 24].

In deciding AU Optronics, the Fifth Circuit found, inter alia,
that that parens patriae lawsuit was a mass action over which
federal subject matter jurisdiction could be exercised under the
CAFA.6

See Mississippi ex rel. Hood v. AU Optronics Corp., et al.,

701 F.3d 796 (5th Cir. 2012).

After AU Optronics was decided, the

appeal-related stay entered by this Court was vacated, and a new

6

After AU Optronics was decided, the State filed a
Petition for Rehearing En Banc and a Motion to Recall Mandate
with the Fifth Circuit, both of which were denied. See Appeal
No. 12-60704 [Orders dated Feb. 4, 2013]. The State then filed a
Petition for Writ of Certiorari, which was granted by the United
States Supreme Court. See S. Ct. Docket No. 12-1036.
7

briefing schedule on the Motions to Remand was entered.
[Docket No. 26].

See Order

The Motions to Remand have now been fully briefed

and will be considered by the Court.

II.

Discussion

Procedural Defect in Chase Action

A.

In its Motion to Remand in the Chase Action, the State argues
that removal of that case was defective because the Notice of
Removal references allegations in the original Complaint as opposed
to those in the Amended Complaint.
[Docket No. 12], at 3.7

See Mem. in Supp. of Mot.

The Chase Action Defendants argue that

removal was not defective because they had not yet received a copy
of the Amended Complaint at the time their Notice of Removal was
filed.

See Mem. in Supp. of Resp. [Docket No. 31], at 34-35.

The

Chase Action Defendants also cite to their Response to the Attorney
General’s Filing of Amended Complaint in State Court (“Response to
Filing”) in which they claim they had not been served with a copy
of the Amended Complaint at the time the lawsuit was removed, and
that

the

exercise

of

federal

jurisdiction

would

be

proper

regardless of whether the allegations in the original or Amended
Complaint were considered.
The

first

issue

See Resp. to Filing [Docket No. 8].

considered

by

the

Court

is

whether

the

Complaint or the Amended Complaint is the operative pleading in the

7

Unless otherwise indicated, all citations to the
pleadings will hereinafter refer to the pleadings filed in the
Chase Action, which is docketed as Civil Action No. 3:12-cv-565.
8

Chase Action.

Relevant to this issue, the record in the Chase

Action shows that the Amended Complaint was filed in state court on
August 6, 2012, and the Notice of Removal was filed on August 7,
2012.

See State Court Record [Docket No. 8], at 31 and 53,

respectively.

Based on the timing of the relevant filings, it is

clear that the state court had jurisdiction at the time the Amended
Complaint was filed.

See e.g. Hampton v. Union Pac. R.R. Co., 81

F.Supp.2d 703, 707 (E.D. Tex. 1999)(explaining that a state court
retains jurisdiction until all three of the following requirements
for removal have been satisfied: (1) filing a notice of removal in
federal court; (2) giving written notice to all adverse parties;
and (3) filing a copy of the notice of removal with the state
court).

As the Amended Complaint was filed in state court at the

time jurisdiction was therein vested, it is the operative pleading
in the Chase Action. Thus, the Court must consider the allegations
in that complaint when determining whether it may properly exercise
subject matter jurisdiction in the Chase Action.

See Manguno v.

Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002)(“To determine whether jurisdiction is present for removal, we
consider the claims in the state court petition as they existed at
the time of removal.”)(citing Cavallini v. State Farm Mut. Auto
Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)).
The Court now considers whether removal of the Chase Action
was procedurally defective.

Relevant to this issue, the record

shows that the Notice of Removal filed in the Chase Action is based
on the claims alleged in the original Complaint even though the
9

Amended Complaint, by which some of those claims were deleted, had
already been filed.8

See Not. of Removal [Docket No. 1].

As such,

the Court finds the allegations in the Notice of Removal likely
contain some defects regarding the bases for exercising federal
subject matter jurisdiction.

It is well settled, however, that

“[d]efective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts.”
also

well

settled

that

Section

28 U.S.C. § 1653.

1653

should

be

It is

“liberally

construed”, and that amendment should be permitted in cases in
which

the

“amendment

alternative

would

jurisdictional

previously alleged.”

have
basis

done
for

no

more

recovery

than
upon

state
the

an

facts

Miller v. Stanmore, 636 F.2d 986, 990 (5th

Cir. 1981).
Here,
Response

following
to

Filing

removal,
claiming

the

Chase

that

the

Defendants
exercise

of

filed

a

federal

jurisdiction would be proper regardless of whether the allegations
in the original or Amended Complaint were considered. See Resp. to
Filing.

Under the circumstances of this case, the Court finds the

Response to Filing should be construed as a Section 1653 amendment
to the Notice of Removal because it does no more than allege that
the jurisdictional bases for removal remained the same even though
the allegations in the Amended Complaint differed from those in the

8

The Amended Complaint was allegedly served sometime on
August 7, 2012, which is the same date the Notice of Removal was
filed. The Court finds the date of service is not relevant
because it is undisputed that the Amended Complaint was filed in
state court on August 6, 2012.
10

original Complaint.9

With the amendment, the Court finds that any

procedural defect arising because references were made to the
original

Complaint

in

Notice

of

Removal

have

been

cured.

Accordingly, the Court finds the Motion to Remand, to the extent it
seeks remand of the Chase Action based on purported procedural
defects in removal, should be denied.

B.

Class Action Jurisdiction under 28 U.S.C. § 1332(d)(2)
Under 28 U.S.C. § 1332(d):
(2) The district courts shall have original jurisdiction
of any civil action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of
interest and costs, and is a class action in which –
(A) any member of a class of plaintiffs is a citizen of
a State different from any defendant;
(B) any member of a class of plaintiffs is a foreign
state or a citizen or subject of a foreign state and any
defendant is a citizen of a State; or
(C) any member of a class of plaintiffs is a citizen of
a State and any defendant is a foreign state or a citizen
or subject of a foreign state.

28 U.S.C. § 1332(d)(2).

In its Motions to Remand, the State argues

that federal subject matter jurisdiction cannot be exercised based
on the class action provision of the CAFA.
The

Fifth

Circuit

recently

The Court agrees.

discussed

the

class

action

provision of Section 1332(d) in the case of Mississippi ex rel.
Hood v. AU Optronics Corp., et al., 701 F.3d 796 (5th Cir. 2012).
In that case, the State of Mississippi had brought a parens patriae

9

To the extent leave was required to amend the Notice of
Removal under 28 U.S.C. § 1653, it is hereby granted.
11

lawsuit against multiple manufacturers, marketers, sellers, and
distributors of liquid crystal display (“LCD”) panels alleging they
had violated the MCPA and the Mississippi Antitrust Act.

The

defendants removed the lawsuit claiming, in part, that it was a
class action under the CAFA. Disagreeing, the Fifth Circuit found:
Under the CAFA, removal of a suit to federal court is
proper if the suit qualifies as a “class action” or a
“mass action.”
See 28 U.S.C. § 1453(b); 28 U.S.C. §
1332(d)(11)(A).
Our analysis begins by considering
whether Mississippi’s suit against the LCD manufacturers
qualifies as a “class action,” a question that can be
answered quickly in the negative.
Under the relevant
provision, a class action is defined as “any civil action
filed under Rule 23 of the Federal Rules of Civil
Procedure or similar State statute or rule of judicial
procedure authorizing an action to be brought by 1 or
more representative persons as a class action.”
28
U.S.C. § 1332(d)(1)(B).
Because Mississippi did not
bring this suit under Rule 23 or a rule of judicial
procedure and because Mississippi state law explicitly
prohibits class actions, see American Bankers Ins. Co. of
Fla. v. Booth, 830 So.2d 1205, 1214 (Miss. 2002) (“[T]he
rule is that Mississippi does not permit class actions,
even equitable class actions in chancery court.”), the
only question is whether the suit is brought under a
state statute “similar” to Rule 23.
This suit was
brought under the Mississippi Consumer Protection Act
(“MCPA”), MISS. CODE ANN. § 75–24–1 et seq. and the
Mississippi Antitrust Act (“MAA”), MISS. CODE ANN. §
75–21–1 et seq.
The MCPA explicitly forbids class
actions, see MISS. CODE ANN. § 75–24–15(4), and the MAA
does not require that suits brought by the State satisfy
any requirements that resemble the adequacy, numerosity,
commonality, and typicality requirements of class action
lawsuits under Rule 23, see MISS. CODE ANN. § 75–21–7. It
is thus clear that neither the MCPA nor the MAA, the
statutes under which Mississippi brings the present suit,
are “similar” to Rule 23. Accordingly, we hold that the
district court did not err in finding that the suit does
not qualify as a “class action” under the CAFA.
AU Optronics, 701 F.3d at 799.
Here, as in AU Optronics, the subject lawsuits are predicated
on alleged violations of the MCPA.
12

Following AU Optronics, the

Court finds the subject lawsuits cannot qualify as class actions
under the CAFA for the same reasons given by the Fifth Circuit,
namely: (1) the subject lawsuits are not brought under Rule 23; (2)
Mississippi law explicitly prohibits class actions; and (3) the
MCPA explicitly forbids class actions.

Accordingly, the Court

finds it cannot exercise federal subject matter jurisdiction over
the subject lawsuits under the class action provision of the CAFA.

C.

Mass Action Jurisdiction under 28 U.S.C. § 1332(d)(11)
Under the CAFA, district courts may exercise federal subject

matter

jurisdiction

over

mass

actions.

See

28

U.S.C.

§

1332(d)(11)(A)(“For purposes of this subsection ... a mass action
shall be deemed to be a class action removable under paragraphs (2)
through

(10)

if

paragraphs.”).

it

otherwise

meets

the

provisions

of

those

“[T]he term ‘mass action’ means any civil action

... in which monetary relief claims of 100 or more persons are
proposed to be tried jointly on the ground that the plaintiffs’
claims

involve

common

questions

of

law

or

fact,

except

that

jurisdiction shall exist only over those plaintiffs whose claims in
a mass action satisfy the jurisdictional amount [of $75,000].”

28

U.S.C. § 1332(d)(11)(B)(i).
Here, the first requirement of a mass action is satisfied
because each of the subject lawsuits is a civil action that
contains a claim for monetary relief.

See Chase Action, Am.

Compl., Ad Damnum ¶ 3 (seeking judgment “for disgorgement and
restitution of monies acquired by Defendants by means of any
13

practice prohibited by the MCPA.”); HSBC Action, Am. Compl., Ad
Damnum ¶ 3 (same); Citigroup Action, Am. Compl., Ad Damnum ¶ 3
(same); Discover Action Am. Compl., Ad Damnum ¶ 3 (same); BOA
Action Am. Compl., Ad Damnum ¶ 3 (same); Capital One Action Am.
Compl., Ad Damnum ¶ 3 (same).
The second requirement for a mass action is numerosity, i.e.
the lawsuit must involve claims of 100 or more persons.

Here, in

its Motions to Remand, the State argues the subject lawsuits cannot
be considered mass actions because it is the only plaintiff named
in each Amended Complaint and, therefore, the lawsuits “fall 99
persons short” of the 100 required for a mass action under the
CAFA.
the

See Mem. in Supp. of Mot., at 11.
State

acknowledges

that

its

In subsequent pleadings,

numerosity

objection

is

inconsistent with the decision in AU Optronics.

See Supp. Mem. of

Law

agrees

[Docket

No.

27],

at

6

n.5.

The

Court

that

the

numerosity objection raised by the State in support of its initial
Motions to Remand is untenable under Fifth Circuit precedent.
In this Circuit, when considering whether the mass action
requirements of the CAFA are satisfied in lawsuits brought by a
state, district courts are “to look at each claim in the complaint
and assess, claim-by-claim, who would benefit from prosecuting that
claim.”

Mississippi ex rel. Hood v. Entergy Miss., Inc., 2012 WL

3704935, at *7 (S.D. Miss. Aug. 25, 2012)(citing Louisiana ex rel.
Caldwell v. Allstate Ins. Co, 536 F.3d 418 (5th Cir. 2008))
(alterations in original).

As recently explained by the Fifth

Circuit:
14

Caldwell instructs us to pierce the pleadings and look at
the real nature of a state’s claims so as to prevent
jurisdictional gamesmanship. See Caldwell, 536 F.3d at
424–25, 429 (“It is well-established that in determining
whether there is jurisdiction, federal courts look to the
substance of the action and not only at the labels that
the parties may attach....
This court has recognized
that defendants may pierce the pleadings to show that the
claim
has
been
fraudulently
pleaded
to
prevent
removal.”).
The
Caldwell
claim-by-claim
approach
contrasts with other circuits that look to a state’s
complaint “as a whole” and then subjectively determine if
the state alone is the real party in interest. Caldwell,
binding precedent on this court, effectively defined
“persons” in the mass action context to be the real
parties in interest as to the respective claims. See
Caldwell, 536 F.3d at 424–25, 429.
AU

Optronics,

701

F.3d

at

799-800

(alterations

in

original)

(internal citations omitted).
In the subject lawsuits, the State of Mississippi is the sole
real party in interest with respect to the claims for injunctive
relief and civil penalties under the MCPA, because such claims can
only be brought by the State through its attorney general.

See

MISS. CODE ANN. § 75-24-9 (providing: “Whenever the Attorney General
has reason to believe that any person is using ... any method, act
or practice prohibited by Section 75-24-5, and that proceedings
would be in the public interest, he may bring an action in the name
of the state against such person to restrain by temporary or
permanent

injunction

practice...”)(emphasis

the

use

added);

of

such

method,

MISS. CODE ANN.

§

act

or

75-24-19(1)(b)

(providing: “In any action brought under Section 75-24-9, if the
court finds from clear and convincing evidence, that a person
knowingly

and

willfully

used

any

unfair

or

deceptive

trade

practice, method or act prohibited by Section 75-24-5, the Attorney
15

General, upon petition to the court, may recover on behalf of the
state a civil penalty in a sum not to exceed Ten Thousand Dollars
($10,000.00) per violation....”)(emphasis added). The Court finds,
however, under AU Optronics, that the State would not be the sole
real party in interest with respect to the claim for restitution
under the MCPA.
In AU Optronics, the State of Mississippi filed a lawsuit
seeking, inter alia, restitution on behalf of itself and its
citizens for damages suffered as a result of purchasing LCD panel
products.

Restitution was sought based on allegations that the

manufacturers, marketers, sellers, and distributors of those panels
had violated the MCPA.
Optronics

Corp.,

876

See Mississippi ex rel. Hood v. AU

F.Supp.2d

758,

762

(S.D.

Miss.

2012).

Applying Caldwell, the Fifth Circuit found:
The real parties in interest in Mississippi’s suit are
those more than 100 persons who, “by substantive law,
possess the right sought to be enforced, and not
necessarily the person who will ultimately benefit from
the recovery.” Richards v. Reed, 611 F.2d 545, 546 n.2
(5th Cir. 1980); CHARLES ALAN WRIGHT & MARY KAY LANE, LAW OF
FEDERAL COURTS 492 (6th ed. 2002). We find that the real
parties in interest are numerous — far in excess of 100.
Contrary to the State’s assertions, Mississippi is thus
not the sole party in interest. Instead, the State (as
a purchaser of LCD products) and individual citizens who
purchased the products within Mississippi possess “rights
sought to be enforced.”
AU Optronics, 701 F.3d at 800.
purchasers

were

real

parties

The decision that the LCD panel
in

interest

for

the

purpose

of

determining whether the numerosity requirement for a mass action
had been satisfied was based on: (1) a review of the allegations in
the complaint that showed the claim for monetary damages was based,
16

in

part,

on

injuries

allegedly

suffered

by

the

individual

purchasers; (2) a review of the MCPA, which the Fifth Circuit found
did not “give[] the State authority to enforce claims for injuries
suffered by others”; and (3) a finding that some of the claims
alleged by the State were outside the scope of a parens patriae
action because they were based on harm allegedly suffered by
individual claimants.

Id. at 800-02.

Here, as in AU Optronics, the claims for restitution are based
on allegations that Mississippi credit card holders have been
injured

because

protection

plans

they

were

without

“slammed”
their

into

consent,

purchasing
without

payment

their

full

understanding, and/or from which they would receive no benefit.
See e.g. Am. Compl. at ¶4 (“[U]nknowing consumers are hit with
monthly fees without their meaningful consent or understanding that
their credit card will be charged for these products.”); Id. at ¶5
(“As a consequence, Defendants bill ineligible Mississippi citizens
for

this

coverage,

even

though

their

status

at

the

time

of

enrollment prevents then from receiving benefits under the terms of
these Payment Protection Plans.”); Id. at ¶7 (“As a result of these
unfair and deceptive practices, Defendants have amassed substantial
sums of money with virtually no benefits to Mississippi citizens
who are nevertheless charged for these products month in and month
out.”).

Second, as in AU Optronics, the Amended Complaints are

brought pursuant to the MCPA, “no provision of [which] gives the
State authority to enforce claims for injuries suffered by others.
In other words, the statute does not authorize public collection of
17

private damages.”

AU Optronics, 709 F.3d at 800-01.

Finally, as

in AU Optronics, the Court finds it is clear that the State is,
with regard to its claim for restitution, pursuing the interests of
the allegedly injured Mississippi credit card holders.10

For these

reasons, the Court finds the Mississippi credit card holders are
real parties in interest for the purposes of determining whether
the mass action numerosity requirement has been satisfied.

As

there are more than one-hundred Mississippi credit card holders who
are real parties in interest in each of the subject lawsuits, the
Court finds the numerosity requirement for a mass action under the
CAFA has been shown to be satisfied in each case.

See Not. of

Removal (Chase Action), at ¶ 25 (“According to Chase’s records,
there are thousands of Mississippi residents” who have been billed
for payment protection plans); Not. of Removal (HSBC Action), at ¶
25 (“According to Defendants’ records, there are thousands of

10

The State argues that the subject lawsuits are
distinguishable from Crawford and AU Optronics because Hood has
disavowed bringing them “on behalf of a class or any group of
persons that can be construed as a class”, and has “disclaim[ed]
any such claims that would support removal of this action ... on
the basis of diversity or jurisdictional mandates under the
[CAFA].” See Supp. Mem. of Law (quoting Am. Compl. at ¶ 16).
The lawsuits, however, expressly request restitution in the
amount of “monies acquired by Defendants by means ... prohibited”
under the MCPA. The Amended Complaints further allege that the
“monies” were acquired because Defendants slammed Mississippi
credit card holders. As the State cannot, in its own name, seek
restitution for injuries suffered by others under the MCPA, see
AU Optronics, 701 F.3d at 800-01, the demand for restitution
necessarily implies that the claim is being brought by (or for
the benefit of) the Mississippi credit card holders who were
allegedly “slammed”. Thus, the Court finds the State has failed
to show that Crawford or AU Optronics should be distinguished
based on the allegations in the Amended Complaints.
18

Mississippi residents” who have been billed for payment protection
plans); Not. of Removal (Citigroup Action), at ¶ 28 (“[T]here are
more that 100 accounts with Mississippi billing addresses that have
been enrolled in payment protection plans...”); Not. of Removal
(Discover Action), at ¶ 26 (“According to Defendants’ records,
there are thousands of Mississippi residents” who have been billed
for payment protection plans); Not. of Removal (BOA Action), at ¶
26 (“According to FIA’s records, there are thousands of Mississippi
residents” who have been billed for payment protection plans); Not.
of Removal (Capital One Action), at ¶ 25 (“According to Capital
One’s records, there are thousands of Mississippi residents” who
have been billed for payment protection plans).

Accordingly, the

Court finds the Motions to Remand, to the extent they seek remand
based

on

the

purported

failure

to

satisfy

the

numerosity

requirement necessary for maintaining a mass action under the CAFA,
should be denied.
Having found that Mississippi credit card holders are real
parties in interest with respect to the claims for restitution
under the MCPA, the Court additionally finds the argument by the
State that the subject lawsuits are excepted from the mass action
provision of the CAFA is not well taken.

In its Motions to Remand,

the State argues that the subject lawsuits cannot be treated as
mass actions because the CAFA excepts “civil actions in which all
of the claims in the action are asserted on behalf of the general
public (and not on behalf of individual claimants or members of a
purported

class)

pursuant

to

a
19

State

statute

specifically

authorizing such action.”

Mem. in Supp. of Mot., at 6-7 (citing 28

U.S.C. § 1332(d)(11)(b)(ii)(III)).11

As discussed above, however,

in the subject lawsuits the restitution claims under the MCPA are
necessarily being brought by the State on behalf of, or for the
benefit of, the Mississippi credit card holders who are the real
parties in interest with respect to those claims.

Because the

individual Mississippi credit card holders “are real parties in
interest” with respect to the restitution claims, “there is no way
that ‘all of the claims’ [in the subject lawsuits] are ‘asserted on
behalf of the general public.’”

AU Optronics, 701 F.3d at 802

(quoting 28 U.S.C. § 1332(d)(11)(B)(ii)(III)).

Accordingly, the

Court finds the general public exception to a mass action under the
CAFA is not applicable in the subject lawsuits and, therefore, the
Motion to Remand on that basis should be denied.
The finding that Mississippi credit card holders are real
parties in interest also negates the argument by the State that the
minimum diversity requirement of the CAFA has not been satisfied.
In its Motions to Remand, the State argues that diversity between
the parties cannot exist because it is the only named plaintiff in
each of the subject lawsuits and, as a state, it does not have
citizenship for the purpose of exercising diversity jurisdiction.
See Mem. in Supp. of Mot., at 14.

As discussed above, however,

citizens of Mississippi, by virtue of their being the allegedly

11

Following the decision in AU Optronics, the State has
acknowledged that its general public exception argument is
inconsistent with that decision. See Supp. Mem. of Law, 6 n.5.
20

injured consumers/credit card holders, are considered members of
the purported mass actions in each of the subject lawsuits based on
their status as real parties in interest.

None of the defendants

in any of the subject lawsuits are Mississippi citizens. See Chase
Action, Not. of Removal, ¶¶ 6-7 (identifying JP Morgan Chase & Co.
as a Delaware corporation with its principal place of business in
New York; and identifying Chase Bank USA, N.A., as a banking
association

in

Delaware);

HSBC

Action,

Not.

of

Removal,

¶

7

(identifying HSBC Bank Nevada, N.A., as a banking association in
Nevada,

identifying

Delaware

HSBC

Card

Services,

Inc.,

as

a

Delaware corporation with its principal place of business in
Illinois, and identifying HSBC USA, N.A., as a banking association
in

Virginia);

Action,

Citigroup

Not.

of

Removal,

¶¶

8-10

(identifying Citigroup, Inc., as a Delaware corporation with its
principal place of business in New York, identifying Citibank N.A.,
as

a

banking

association

in

South

Dakota,

and

identifying

Department Stores National Bank as a banking association in South
Dakota);

Discover

Discover

Financial

identifying

Action,

Not.

Services,

Discover

Bank,

of

Inc.,

as

a

Removal,
as

a

¶

8

(identifying

non-existent

chartered

bank

in

entity,

Delaware,

identifying DFS Services, L.L.C., as having one member that is a
Delaware corporation with its principal place of business in
Illinois, and identifying American Bankers Management Company,
Inc., as a Florida corporation with its principal place of business
in Florida); BOA Action Notice of Removal, ¶¶ 7-8 (identifying Bank
of

America

Corporation,

as

a

Delaware
21

corporation

with

its

principal place of business in North Carolina, and identifying FIA
Card Services, N.A., as a banking association in Delaware); Capital
One Action, Not. of Removal, ¶¶ 9-10 (identifying Capital One Bank
(U.S.A.),

N.A.,

as

a

banking

association

in

Virginia,

and

identifying Capital One Services, as being incorporated in Delaware
and having its principal place of business in Virginia).

As the

citizenship of at least one mass action member differs from that of
Defendants in each of the subject lawsuits, the Court finds the
minimum diversity requirement of the CAFA has been shown to be
satisfied.

See 28 U.S.C. § 1332(d)(2)(A)(providing that diversity

jurisdiction may be exercised under the CAFA in cases in which “any
member of a class of plaintiffs is a citizen of a State different
from any defendant.”). Accordingly, the Court finds the Motions to
Remand, to the extent they seek remand based on an alleged lack of
minimum diversity, should be denied.
The third requirement for a mass action is that the claims of
its members are proposed to be tried jointly and involve common
questions of law or fact.

The Court finds the restitution claims

in the subject lawsuits all involve common questions of law because
each claim is predicated on allegations that Defendants violated
the MCPA. The subject lawsuits also raise common questions of fact
because, in each Amended Complaint, it is alleged that Defendants
committed

unfair

and

deceptive

business

practices

against

Mississippi credit card holders with respect to Payment Protection
Plans by, inter alia: (1) causing card holders to unknowingly or
unintentionally enroll in such Plans or enrolling card holders
22

without

their

consent;

(2)

using

misleading

information

or

providing no disclosures regarding the Plans; (3) failing to
determine whether card holders are eligible for the benefits
available under such Plans at the time they are sold; and (4)
unfairly

administering

claims

for

benefits

under

such

Plans.

Finally, because Mississippi credit card holders are the real
parties in interest for the purpose of the restitution claims
alleged in the subject lawsuits, the Court finds their claims are
necessarily proposed to be tried jointly.
The

final

issue

to

be

considered

concerning the amounts in controversy.

by

the

Court

is

that

Under the CAFA, a mass

action may be considered a class action for the purposes of removal
if it meets the requirements of 28 U.S.C. § 1332(d)(2)-(10).
28 U.S.C. § 1332(d)(11)(A).

See

Section 1332(d)(2) requires that the

amount in controversy in a class action exceed $5,000.000.
the

State

does

not

dispute

whether

the

$5,000,000

Here,

amount

in

controversy has been satisfied in each of the subject lawsuits.
See Mem. in Supp. of Mot., at 13 (“Defendants state they have
collected at least five million dollars from their Mississippi
customers,

which

is

troubling

enough

considering

the

most

vulnerable are targeted for these unconscionable charges.”).
Although the State does not challenge the $5,000,000 class
action threshold, it does challenge the $75,000 requirement in 28
U.S.C. § 1332(d)(11)(B)(i), which provides “jurisdiction shall
exist only over those plaintiffs whose claims in a mass action
satisfy the jurisdiction requirement” of $75,000.
23

Relying on

Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676 (9th Cir.
2006),

the

State

argues

that

the

$75,000

requirement

is

jurisdictional, and that the subject lawsuits should be remanded
because Defendants have failed to show that the claim of any
putative mass action member exceeds that amount.

See Abrego, 443

F.3d at 689 (finding that a lawsuit was subject to remand because
the

defendant

had

“not

established

that

even

one

plaintiff

satisfie[d] the $75,000 jurisdictional amount requirement of §
1332(a),

applicable

to

mass

actions

by

virtue

of

§

1332(d)(11)(B)(i)”, and concluding that a mass action claim “cannot
go forward unless there is at least one plaintiff whose claims can
remain in federal court.”).
In response, Defendants argue that they are not required to
establish that any mass action member has a claim exceeding $75,000
in order to remove the subject lawsuits under the CAFA.

According

to Defendants, under the plain language of that Act, a lawsuit is
removable as a mass action if it meets the statutory definition of
such action, and if the requirements for a class action are
satisfied.

See 28 U.S.C. § 1332(d)(11)(A)(“[A] mass action shall

be deemed a class action removeable under paragraphs (2) through
(10) if it otherwise meets the provisions of those paragraphs.”);
Id. at § 1332(d)(2)(“The district courts shall have original
jurisdiction of any civil action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of interest and
cost, and is a class action ...”).

Defendants further argue that

“the initial question of whether a mass action is removeable is
24

separate and distinct from the subsequent question of whether the
claims of any of the real parties in interest should be severed and
remanded based on the $75,000 amount-in-controversy requirement.”
See Mem. in Supp. of Resp. at 21.

In support of its arguments,

Defendants cite to Lowery v. Alabama Power Co., 483 F.3d 1184 (11th
Cir. 2007), and Mississippi v. Entergy, 2012 WL 3704935 (S.D. Miss.
Aug. 25, 2012).
Having reviewed the statutes, and cited authorities, the Court
agrees with the analysis of United States District Judge Henry T.
Wingate in the case of Mississippi v. Entergy, 2012 WL 3704935
(S.D. Miss. Aug. 25, 2012). In Entergy, the positions of the
parties were identical to those advanced in the subject lawsuits.
There, the State argued that the removing party had the burden to
show that at least one plaintiff had a claim valued at more than
$75,000 before the case could be properly removed as a mass action.
Id. at *9-10.

Entergy took the position that evaluating mass

action jurisdiction under the CAFA involves a two-step process.
First, the court considers whether the lawsuit was properly removed
by examining whether the following jurisdictional factors are
satisfied: (1) an aggregate amount in controversy of $5,000,000;
(2) minimal diversity; and (3) monetary claims of 100 or more
persons that involve common questions of law or fact.

If the court

finds the case was properly removed, it proceeds to the second step
at which it remands any plaintiff whose claim does not satisfy the
$75,000

individual

amount

in

controversy

requirement.

Judge

Wingate was persuaded that the position argued by Entergy was
25

“consistent with the language of the statute, [and] a reasonable
interpretation of the wording in the context of CAFA as a whole,
and with the legislative history behind its enactment.” Id. at *9.
As reasoned by Judge Wingate:
The plain reading of the statute indicates that the
$75,000 individual amount in controversy is an exception
to CAFA jurisdiction, not a threshold requirement. The
Lowery court examined this issue and found it
inconclusive.
But this court reads the definition of
mass action to indicate by its plain language that the
$75,000 amount in controversy requirement to be an
exception to or exclusion from CAFA jurisdiction. The
statute defines a mass action as:
any civil action [ ... ] in which monetary
relief claims of 100 or more persons are
proposed to be tried jointly on the ground
that the plaintiffs’ claims involve common
questions of law or fact, except that
jurisdiction shall exist only over those
plaintiffs whose claims in a mass action
satisfy the jurisdictional amount requirements
under subsection (a)[$75,000, exclusive of
interest and costs].
Title 28 U.S.C. §
1332(d)(11)(B)(i)(emphasis added).
Congress described the characteristics of a mass action
and then stated “except that” jurisdiction may be
maintained only over certain claims within that universe.
The mass action refers to the entire lawsuit, which must
meet the numerosity requirement and have claims
aggregated based on common law and fact. This language
indicates that Congress intended to create broader
jurisdiction, and then eliminate those claims that do not
meet certain requirements found in § 1332(a).
Merriam–Webster’s Collegiate Dictionary, 10th edition,
defines the word “except” as “with the exclusion or
exception of; to take out or leave out from a number or
a whole; exclude [ ... ] .” Merriam–Webster’s includes
the word “only” as a definition of except, illustrating
it with the sentence “I would go except that it’s too
far.” This court reads the most appropriate definition
within the context of the statutory language to be to
take out or leave out from a number or a whole. This
interpretation is consistent with the statutory language
which distinguishes jurisdiction over the lawsuit from
26

the amount in controversy requirement for individual
claims.
The Lowery court expressed concern that this reading
possibly could leave the court with jurisdiction over a
lawsuit, where no plaintiffs can meet the individual
amount in controversy requirement.
483 F.3d at 1204.
This is a valid concern, which has not been answered to
date. A lawsuit without even a single plaintiff cannot
be considered a class or mass action. This court has
examined the statutory language and applied cannons of
interpretation to do the least damage to the statute,
while applying it in a pragmatic way to the facts before
it.
The cannons of statutory interpretation direct this
court, when possible, to “give effect ... to every word
and clause” and to read the language in question “in the
context of the statute as a whole.” Id. at 1204. To
find that jurisdiction requires that all plaintiffs have
claims which exceed the $75,000 amount in controversy at
the time of removal, when interpreted within the statute
as a whole, would necessarily render the aggregate amount
in controversy requirement as mere surplusage. Id. Mass
action jurisdiction unquestionably requires claims of 100
plaintiffs or more which have an aggregate amount in
controversy over $5,000,000. Id.; Title 28 U.S.C. §§
1332(d)(2), (d)(11)(b)(i). If the “$75,000 individual
amount in controversy requirement” were also a threshold
jurisdictional requirement, lawsuits which met this
requirement would necessarily have an aggregate amount in
controversy of $7,500,000 (100 plaintiffs X $75,000 =
$7,500,000). Lowery, 483 F.3d at 1204–1205.
When the plain language of the statute and application of
cannons of interpretation do not definitely decide the
issue, legislative history may serve as a useful tool to
interpret a statute. The Committee Report on the bill
introducing CAFA, Senate Judiciary Committee, Senate
Report 109–14, states that:
Subsection
1332(d)(11)(B)(i)
includes
a
statement indicating that jurisdiction exists
only over those plaintiffs whose claims in a
mass action satisfy the jurisdictional amount
requirements under section 1332(a).
The
Committee notes that the intent of this
proviso is as follows. If a mass action
satisfies the criteria set forth in the
section (that is, it involves the monetary
relief claims of 100 or more persons that are
27

proposed to be tried jointly on the ground
that the claims involve common questions of
law or fact and it meets the tests for federal
diversity jurisdiction otherwise established
by the legislation), it may be removed to a
federal court, which is authorized to exercise
jurisdiction over the action.
Under the
proviso, however, it is the Committee’s intent
that any claims that are included in the mass
action that standing alone do not satisfy the
jurisdictional amount requirements of Section
1332(a) (currently $75,000), would be remanded
to state court.
Subsequent remands of
individual claims not meeting the section 1332
jurisdictional amount requirement may take the
action below the 100–plaintiff jurisdictional
threshold or the $5 million aggregated
jurisdictional amount requirement. However, so
long as the mass action met the various
jurisdictional requirements at the time of
removal, it is the Committee’s view that those
subsequent remands should not extinguish
federal diversity jurisdictional over the
action.
Legislative history cannot control the decision of this
court, and resort to its counsel is generally only
appropriate if the court finds the statute to be
ambiguous.
See McLaurin v. Noble Drilling, Inc., 529
F.3d 285, 288 (5th Cir. 2008). But in instances where
the disputed issue is not authoritatively resolved by
reference to the statute, reliance on legislative history
may be helpful.
Id.
In this case the legislative
history explicitly addresses the question before the
court and is fully consistent with this court’s own
reading of the statute.
Entergy, 2012 WL 3704935, at *10-11.
Having considered the statutory language of the CAFA and the
authorities cited by the parties, the Court agrees with Judge
Wingate’s conclusion that “[t]he plain reading of the statute
indicates ... the $75,000 individual amount in controversy is an
exception to CAFA jurisdiction, not a threshold requirement.”
First, by its plain language, the CAFA deems a mass action to be a

28

class action that is removeable to federal court if it satisfies
the provisions of Section 1332(d)(2) through (10).
§ 1332(d)(11)(A).

See 28 U.S.C.

See also Bullard v. Burlington N. Santa Fe Ry.

Co., 535 F.3d 759, 762 (7th Cir. 2008)(explaining that Section
1332(d)(11) “defines a class action to include a mass action.”);
Abraham v. St. Croix Renaissance Group, L.L.L.P, --- F.3d ---, 2013
WL 2128539, at *4 (3d Cir. May 17, 2013)(explaining that the “plain
text” of 28 U.S.C. § 1332(d)(11) “makes [the] treatment of ‘class
actions’ equally applicable to ‘mass actions.’”).

Nothing in

Section 1332(d)(2)-(10) requires that at least one claimant in a
class action have a claim in excess of $75,000 before the case can
See e.g. Cappuccitti v. DirecTV,

be removed to federal court.

Inc., 623 F.3d 1118, 1122 (11th Cir. 2010)(“There is no requirement
in a class action brought originally or on removal under CAFA that
any individual plaintiff’s claim must exceed $75,000.”)(citing 14AA
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE

AND

PROCEDURE § 3704 (Supp. 2010)(“CAFA ... extends federal subject
matter

jurisdiction

to

class

actions

when

there

is

minimal

diversity and the total amount in controversy exceeds $5,000,000,
exclusive of interest and costs, and provides for aggregation even
if

no

individual

$75,000.”)).

class

member

asserts

a

claim

that

exceeds

As there is no statutory requirement that at least

one class member have a claim in excess of $75,000 to permit
removal under the CAFA, and as a mass action is deemed a class
action

under

that

statute,

the

Court

finds

there

can

be

no

statutory requirement that at least one mass action member have a
29

claim

in

excess

of

$75,000

to

permit

removal.

The

Court

additionally finds that such requirement cannot be read into the
statute as urged by the State.

See Exxon Mobil Corp. v. Allapattah

Servs., Inc., 545 U.S. 546, 558 (2005)(explaining that while
federal

courts

cannot

“give

jurisdictional

statutes

a

more

expansive interpretation than their text warrants”, “it is just as
important not to adopt an artificial construction that is narrower
than what the text provides.”).
Second, as discussed by Judge Wingate, the $75,000 individual
amount in controversy is an exception to CAFA jurisdiction. See 28
U.S.C. § 1332(d)(11)(B)(i)(providing that jurisdiction over a mass
action “exists only over those plaintiffs whose claims in a mass
action satisfy the jurisdictional amount [of $75,000].”).

In this

Circuit, the burden to show that an exception to CAFA jurisdiction
exists is one that must be carried by the party seeking remand.
See e.g. Preston v. Tenet Healthsystem Med. Ctr., Inc., 485 F.3d
793, 797 (5th Cir. 2007)(reaffirming that the party moving for
remand “must prove that the CAFA exceptions to federal jurisdiction
divest

the

district

court

of

subject

matter

jurisdiction.”).

See also Williams v. Homeland Ins. Co. of N.Y., 657 F.3d 287, 290
(5th Cir. 2011)(“The parties moving for remand bear the burden of
proof that they fall within an exception to CAFA jurisdiction”).
Thus, under Fifth Circuit precedent, the defendants in the subject
lawsuits would not have the burden to prove that the Section
1332(d)(11)(B)(i) exception is not applicable, i.e. that the claim
of any potential mass member is in an amount greater than $75,000.
30

Instead, the burden to prove the exception applies would have to be
carried by the individual mass action members, who would have to
prove that his or her claim was for an amount less than $75,000
and, therefore, that the Court could not exercise subject matter
jurisdiction over that claim.
In

sum,

Defendants

having

have

reviewed

satisfied

the

their

pleadings,
burden

of

the

Court

showing

finds

that

the

restitution claim in each of the subject lawsuits satisfies the
mass action requirements of the CAFA and, therefore, are removable
under that Act.

In each lawsuit, Defendants have shown that there

exists: (1) an aggregate amount in controversy of $5,000,000; (2)
minimum diversity; (3) a claim for monetary relief; (4) more than
100 parties in interest; and (5) a claim that involves a common
question of law and fact.

As such, the Court finds that each of

the subject lawsuits was removeable as a mass action under the CAFA
and, therefore, that it can properly exercise subject matter
jurisdiction based on diversity over the restitution claim in each
case, and exercise supplemental jurisdiction over the remaining
claims. As each lawsuit was properly removed under the mass action
provisions of the CAFA, the Court finds the Motions to Remand
should be denied.
The Court is aware that its finding that the lawsuits were
properly removed as mass actions under the CAFA does not end its
jurisdictional

inquiry

because

it

must

still

consider

the

individual $75,000 amount in controversy requirement of 28 U.S.C.
§ 1332(d)(11)(b)(i). Such query, however, cannot presently be made
31

because the identity of the mass action members is unknown.
As discussed above, under Crawford and AU Optronics, the Court
is required to find that the Mississippi credit card holders for
whom monetary damages are sought are the real parties in interest
with respect to the restitution claims under the MCPA. These
cardholders, however, are not plaintiffs in the subject lawsuits.
As the cardholders are not plaintiffs to the litigation, the Court
cannot presently determine whether the claim of any individual
cardholder

exceeds

the

jurisdictionally

required

amount

in

controversy of $75,000.00,12 or whether the claim of any individual
cardholder should be remanded to state court for failing to meet
that threshold.

See 28 U.S.C. S 1332(d)(11(B)(i)(providing that

“jurisdiction shall exist only over those plaintiffs whose claims
in

a

mass

action

satisfy

12

the

jurisdictional

amount

In its Amended Complaints, the State alleges that none
of the credit card holders have claims in excess of $75,000. See
Am. Compl. at ¶ 16 (alleging “federal jurisdiction does not exist
because the amount in controversy for any individual Mississippi
consumer is less than $75,000., exclusive of interests and
costs.”). The Court finds this allegation is insufficient to
satisfy the exception to CAFA jurisdiction under 28 U.S.C. §
1332(d)(11)(b)(i). First, there has been no showing that the
State knows either the identity of any credit card holder, or the
amount paid by such card holder for Payment Protections Plans.
As such, the allegation that no credit card holder has a claim in
excess of $75,000.00, appears to be rank speculation. Second,
the attempt by the State to limit the amount of restitution that
could be recovered by any credit card holders is not binding on
the Court. See e.g. Standard Fire Ins. Co. v. Knowles, --- U.S.
---, 133 S.Ct. 1345, 1349 (2013)(holding that the attempt to
limit the amount of damages sought through litigation by a party
proceeding in a representative capacity under the CAFA was not
legally binding on the individuals he sought to represent, and
could not “reduce[] the value of the putative class members’
claims.”).
32

requirements”)(emphasis added).
Again, as no Mississippi credit card holder was named a
plaintiff in any of the subject lawsuits (even though the card
holders are considered members of the mass actions based on their
status as parties in interest under Crawford and AU Optronics), the
first task for the Court is to have the card holders identified.
Fortunately, in these cases information regarding the names and
addresses of the credit card holders is likely readily available
based on the on-going contractual relationship that exists between
them and the defendant creditors.13

Once the credit card holders

are identified, they will need to be joined as plaintiffs in the
subject lawsuits, presumably pursuant to Rule 19 of the Federal
Rules of Civil Procedure, even though it is unlikely that they have
knowledge of this case or of a potential claim for damages under
the MCPA.

After being joined as plaintiffs, the Court would then

undertake the task of determining which, if any, of the unwitting
mass action plaintiffs have claims for restitution in excess of
$75,000.

Plaintiffs whose claims are above the threshold would

remain in federal court, while plaintiffs whose claims fall below
the threshold would be remanded to state court.
1332(d)(11)(B)(i).
are

subsequently

See 28 U.S.C. §

In the event all of the mass action plaintiffs
remanded

to

state

court,

the

mass

action

restitution claim would likely be subject to dismissal, either

13

A more daunting task awaits the trial court in AU
Optronics as it is less likely that the manufactures,
distributors, and sellers of the LCD panels will be in possession
of such information.
33

based on mootness, see e.g. Preiser v. Newkirk, 422 U.S. 395, 401
(1975)(explaining that federal courts do not have the power to
“decide questions that cannot affect the right of litigants in the
case before them”), or on a sua sponte review under Rule 12(b)(6)
of the Federal Rules of Civil Procedure because the claim for
restitution would no longer be one upon which relief could be
granted.

If the restitution claim, which is the only claim upon

which federal subject matter jurisdiction attached under the CAFA,
was dismissed, the Court would then have to consider whether to
retain supplemental jurisdiction over the remaining MCPA claims.
See 28 U.S.C. § 1367(c)(3)(“The district court may decline to
exercise supplemental jurisdiction over a claim ... if the district
court

has

dismissed

all

claims

over

which

it

has

original

jurisdiction.”).
Thus, in order for the Court to assure itself of its ability
to retain subject matter jurisdiction over the now removed mass
action restitution claims, the next procedural step will be to
require the parties to preliminarily engage in limited discovery to
identity the Mississippi credit card holders, and then determine
the amount in controversy with respect to each card holder’s
restitution claim.

D.

Complete Preemption Under the NBA
In their Notices of Removal, Defendants claim that the Court

may

exercise

federal

question

jurisdiction

over

lawsuits on the grounds of complete pre-emption.
34

the

subject

Under the complete-preemption doctrine, certain federal
statutes are construed to have such “extraordinary”
preemptive force that state-law claims coming within the
scope of the federal statute are transformed, for
jurisdictional purposes, into federal claims - i.e.,
completely preempted.
See Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 65 (1987). When a plaintiff raises
such a completely preempted state-law claim in his
complaint, a court is obligated to construe the complaint
as raising a federal claim and therefore “arising under”
federal law.
Sullivan v. American Airlines, Inc., 424 F.3d 267, 272 (2D Cir.
2005)(alterations in original).

See also Vaden v. Discover Bank,

556 U.S. 49, 61 (2009)(explaining that a “complaint purporting to
rest on state law ... can be recharacterized as one ‘arising under’
federal

law.”

Under

the

complete

preemption

doctrine,

“a

plaintiff’s state cause of action may be recast as a federal claim
for relief, making its removal by the defendant proper on the basis
of

federal

question

(citations omitted).

jurisdiction.”)(alterations

in

original)

For complete preemption to apply, there must

be a showing that “Congress intended a federal act to provide the
exclusive cause of action for the claims at issue.”

Bernhard v.

Whitley Nat’l Bank, 523 F.3d 546, 553 (5th Cir. 2008).
Federal

question

jurisdiction

in

the

Chase

Action,

HSBC

Action, Citigroup Action, BOA Action, and Capital One Action is
claimed on the National Bank Act (“NBA”), which provides:
Any association may take, receive, reserve, and charge on
any loan or discount made, or upon any notes, bills of
exchange, or other evidences of debt, interest at the
rate allowed by the laws of the State, Territory, or
District where the bank is located, or at a rate of 1 per
centum in excess of the discount rate on ninety-day
commercial paper in effect at the Federal reserve bank in
the Federal reserve district where the bank is located,
whichever may be the greater, and no more, except that
35

where by the laws of any State a different rate is
limited for banks organized under State laws, the rate so
limited shall be allowed for associations organized or
existing in any such State under title 62 of the Revised
Statutes.
When no rate is fixed by the laws of the
State, or Territory, or District, the bank may take,
receive, reserve, or charge a rate not exceeding 7 per
centum, or 1 per centum in excess of the discount rate on
ninety-day commercial paper in effect at the Federal
reserve bank in the Federal reserve district where the
bank is located, whichever may be the greater, and such
interest may be taken in advance, reckoning the days for
which the note, bill, or other evidence of debt has to
run.... And the purchase, discount, or sale of a bona
fide bill of exchange, payable at another place than the
place of such purchase, discount, or sale, at not more
than the current rate of exchange for sight drafts in
addition to the interest, shall not be considered as
taking or receiving a greater rate of interest.
The taking, receiving, reserving, or charging a rate of
interest greater than is allowed by section 85 of this
title, when knowingly done, shall be deemed a forfeiture
of the entire interest which the note, bill, or other
evidence of debt carries with it, or which has been
agreed to be paid thereon. In case the greater rate of
interest has been paid, the person by whom it has been
paid, or his legal representatives, may recover back, in
an action in the nature of an action of debt, twice the
amount of the interest thus paid from the association
taking or receiving the same: Provided, That such action
is commenced within two years from the time the usurious
transaction occurred.
See, 12 U.S.C. §§ 85 and 86, respectively.

These provisions have

been held to completely preempt state law claims premised on usury.
As explained by the United States Supreme Court:
In addition to this Court’s longstanding and consistent
construction of the National Bank Act as providing an
exclusive federal cause of action for usury against
national banks, this Court has also recognized the
special nature of federally chartered banks.
Uniform
rules limiting the liability of national banks and
prescribing exclusive remedies for their overcharges are
an integral part of a banking system that needed
protection from “possible unfriendly State legislation.”
Tiffany v. National Bank of Mo., 18 Wall. 409, 412
(1874).
The same federal interest that protected
36

national banks from the state taxation that Chief Justice
Marshall characterized as the “power to destroy,”
McCulloch v. Maryland, 4 Wheat. 316, 431, (1819),
supports the established interpretation of §§ 85 and 86
that gives those provisions the requisite pre-emptive
force to provide removal jurisdiction.
In actions
against national banks for usury, these provisions
supersede both the substantive and the remedial
provisions of state usury laws and create a federal
remedy for overcharges that is exclusive, even when a
state complainant, as here, relies entirely on state law.
Because §§ 85 and 86 provide the exclusive cause of
action for such claims, there is, in short, no such thing
as a state-law claim of usury against a national bank.
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 10-11 (2003).
In its Motions to Remand, the State of Mississippi argues that
the Payment Protection Plans at issue in the subject lawsuits
cannot be considered “interest” under the NBA.

Although the term

“interest” is not defined by that statute, the Supreme Court has
held that courts may defer to the definition promulgated by the
Office of the Comptroller of the Currency (“OCC”).

See Smiley v.

Citibank (South Dakota), N.A., 517 U.S. 735 (1996)(concluding that
the OCC regulation defining the term “interest” deserved deference
and was reasonable).

Under this definition:

The term “interest” as used in 12 U.S.C. 85 includes any
payment compensating a creditor or prospective creditor
for an extension of credit, making available of a line of
credit, or any default or breach by a borrower of a
condition upon which credit was extended. It includes,
among other things, the following fees connected with
credit extension or availability: numerical periodic
rates, late fees, creditor-imposed not sufficient funds
(NSF) fees charged when a borrower tenders payment on a
debt with a check drawn on insufficient funds, overlimit
fees, annual fees, cash advance fees, and membership
fees.
It does not ordinarily include appraisal fees,
premiums and commissions attributable to insurance
guaranteeing repayment of any extension of credit,
finders’ fees, fees for document preparation or
notarization, or fees incurred to obtain credit reports.
37

12 C.F.R. § 7.4001(a). Applying this definition, courts have found
that many types and fees constitute “interest” under the NBA.

See

e.g. Smiley, 517 U.S. 735 (finding that credit card late payment
fees constituted “interest” for the purpose of the NBA); Phipps v.
Guaranty Nat’l Bank of Tallahassee, 2003 WL 22149646, at *6 (W.D.
Mo. Sept. 13, 2007)(finding that loan origination fees and loan
discount fees constitute “interest” under the NBA).
Here, Defendants have submitted Declarations showing that the
Payment Protection Plans are intended to modify the contractual
terms for repayment of an outstanding credit card balance.14

For

example, the Chase Defendants have submitted a Declaration from
Marc Fink (“Fink”), the Marketing Director for Chase Bank USA,
N.A., who declares:
Chase cardholders ordinarily must make minimum payments
on their credit card account balance each month. Under
a payment protection plan, a cardholder’s obligation to
make these minimum payments is suspended or cancelled in
whole or in part under the circumstances covered by the
plan. In the event of a suspension of the cardholder’s
repayment obligations, the cardholder need not make the
minimum payment that otherwise would be due and is
relieved of interest charges and late fees that otherwise

14

The State has objected to the Declarations on the
grounds that the issue of federal question jurisdiction is to be
decided from the face of the plaintiff’s well-pleaded complaint.
See Rebuttal [Docket No. 9], at 9-10. In limited circumstances,
however, courts may permissibly look at documents outside the
complaint that “clarify that a plaintiff’s state law claim is one
that would be preempted by federal law.” Eggert v. Britton, 223
F. App’x 394, 397 (5th Cir. 2007). Here, the Court finds the
Declarations do no more than clarify Defendants’ bases and
rationales for arguing that the MCPA claims in the Amended
Complaints are preempted. Accordingly, the Court finds it can
permissibly consider the Declarations to determine whether
federal question jurisdiction exists over the subject lawsuits.
38

would accrue during the suspension period, as specified
by the terms of the plan.
In the event of a
cancellation, the cardholder is also relieved of the
obligation to repay some or all of the principal amount
of the loan balance.
Depending on the plan, debt
cancellation or suspension may occur in the event of
death, disability, involuntary unemployment, marriage,
birth of a child, change-of-residence, natural disaster,
call to military service, hospitalization, business
hardship, a once-a-year payment holiday, and other
qualifying events, each of which is specifically defined
by the terms of the plan.
Chase’s payment protection plans extend additional credit
to cardholders in some or all of the following ways: (i)
they relive customers of minimum payment obligations,
thus extending the term of the loan and allowing
customers to retain loaned funds for a longer period of
time before repaying them, (ii) they allow customers to
retain loaned funds on more favorable terms (i.e. without
paying interest charges that would accrue in the absence
of the plan, and without paying late fees that otherwise
would accrue if the customer were to fail to make a
minimum payment, (iii) they relieve customers from the
prospect of breaching or defaulting on their credit card
loan terms, (iv) they allow customers to continue drawing
on the credit extended by their credit card account under
circumstances in which it otherwise might be reduced or
withdrawn (i.e., customers may continue to use their
credit card up to their credit limit while benefitting
from debt cancellation or suspension), and (v) the plans
may permanently relieve customers of some or all of their
loan balances.
See Chase Action, Resp. [Docket No. 30], Ex. 3 (Fink Dec.) at ¶¶ 45.

See also id. at Ex. 1 (Jill J. Dowd Dec.) at ¶¶ 5-6 (providing

similar information with respect to Payment Protection Plans in
HSBC

Action);

Id.

at

Ex.

2

(William

Ellis

Dec.)

at

¶¶

6-7

(providing similar information with respect to Payment Protection
Plans in BOA Action); Id. at Ex. 4 (Macdara Hoade Dec.) at ¶ 4
(providing similar information with respect Payment Protection
Plans in Citibank Action); Id. at Ex. 5 (Mona Jantzi Dec.) at ¶¶ 45 (providing similar information with respect to Payment Protection
39

Plans in Capitol One Action); Id. at Ex. 6 (Nancy M. O’Keefe Dec.)
at ¶¶ 4-7 (providing similar information with respect to Payment
Protection Plans in Discover Action).
Having considered the pleadings, the Court finds the fees paid
for the Payment Protection Plans underlying the MCPA claims in the
subject lawsuits would constitute interest as that term is defined
by the OCC.

Again, the term “interest” is defined to include any

payment that compensates a creditor for an extension of credit.
Here, the underlying extensions of credit were presumably made
pursuant to contractual agreements entered between Defendants and
the individual credit card holders.

Under the Payment Protection

Plans, the credit card holders have a contractual right to have the
terms under which they are required to repay the extended credit
modified.15

15

Likewise, under the Plans, Defendants are obligated to

The OCC define a debt cancellation contract as:

[A] loan term or contractual arrangement modifying loan
terms under which a bank agrees to cancel all or part of
a customer’s obligation to repay an extension of credit
from that bank upon the occurrence of a specified event.
The agreement may be separate from or a part of other
loan documents.
And define a debt suspension agreement as:
[A] loan term or contractual arrangement modifying loan
terms under which a bank agrees to suspend all or part of
a customer’s obligation to repay an extension of credit
from that bank upon the occurrence of a specified event.
The agreement may be separate from or a part of other
loan documents. The term debt suspension agreement does
not include loan payment deferral arrangements in which
the triggering event is the borrower’s unilateral
election to defer repayment, or the bank’s unilateral
decision to allow a deferral of repayment.
40

modify the terms of the contractual agreements under which credit
is extended, i.e. by reducing or eliminating minimum payment
requirements,

by

eliminating

interest

charges,

and/or

by

eliminating some or all of an existing credit balance, in the event
of a specified occurrence.

Because the fees paid for the Payment

Protection Plans compensate Defendants for their having to modify
the terms under which credit is extended, the Court finds the
payments are for extensions of credit and, therefore, constitute
interest as that term is defined by the OCC regulations.

See

Hawaii ex rel Louie v. JP Morgan Chase & Co., 907 F.Supp.2d 1188,
1211 (D. Haw. 2012)(finding that charges imposed by creditors for
participation in payment protection plans constituted interest
under the NBA).

In so doing, this Court disagrees with the

decision reached by the court in West Virginia ex rel McGraw v.
JPMorgan Chase & Co., 842 F.Supp.2d 984 (S.D. W. Va. 2012), a
decision upon which the State relies heavily. In McGraw, the court
found

that

payment

protection

plans

could

not

be

considered

interest under the NBA because (1) participation in the plans was
not a prerequisite for obtaining or continuing to qualify for an
extension of credit, (2) the plans only provided “very limited
modifications of the underlying credit terms”, and (3) the fees are
paid to cover the cost a particular service as opposed to an
extension of credit.

Id. at 991-92.

This Court, however, is not

aware of any authority that supports the finding that a creditor

12 C.F.R. § 37.2(f) and (g), respectively.
41

must assess the same fees or the same rate against each customer in
order for those fees/rates to constitute “interest” under the NBA.
Likewise, the Court is not aware of any authority that establishes
a correlation between the definition of the term “interest” and the
manner and/or degree a fee impacts the terms under which credit is
extended.

Finally, as explained above, the Court finds the fees

paid for the Payment Protection Plans do compensate the creditors
for an extension of credit because the Plans require the creditors
to modify the terms under which they will be repaid.
Having found the fees for Payment Protection Plans constitute
interest under the NBA, the Court next considers the argument by
the State that complete preemption does not exist because it has
not alleged that the rate of the fees is usurious.
the

Amended

Complaints,

however,

shows

that

the

A reading of
State

does

challenge the amounts being paid by Mississippi credit card holders
for the Payment Protection Plans.

See e.g. Am. Compl. at ¶ 22

(alleging that Defendants have charged substantial sums of money
for enrollment in Payment Protection Plans; id. at ¶ 45 (alleging
that Defendants purposefully designate their Payment Protection
Plans in a manner that allows them to avoid state regulation and
charge higher fees); id. ¶¶ 45-46 (alleging that Payment Protection
Plans are unregulated as to terms, conditions, and fees thereby
making them highly profitable for Defendants while offering little
or no benefit to consumers).
1212,

found

that

similar

The court in Louie, 907 F.Supp.2d at
allegations,

i.e.

that

“the

costs

Defendants assessed for their [Payment Protection Plans] exceeded
42

the value conferred upon ... consumers through the product” and
that “consumers have been injured as a result”, “necessarily
constitute[d] challenges to the rate of interest.”

Another court

found that the plaintiff’s allegations that the creditor defendant
had impermissibly combined unwarranted fees with unpaid principal,
and then imposed interest on the whole, had challenged the rate at
which the interest was being charged and, therefore, had stated a
claim under the NBA.

See Nelson v. Citibank (South Dakota) N.A.,

794 F.Supp. 312 (D. Minn. 1992).
Based on its reading of the Amended Complaints, the Court
finds that the State has challenged the rate of the fees being
charged for Payment Protection Plans, and has impliedly alleged
that those fees are excessive in light of the benefits being
derived by the credit card holders who have been enrolled in such
plans.

Accordingly, the Court finds it may properly exercise

federal question jurisdiction, on the basis of complete preemption
under the NBA, in the Chase Action, HSBC Action, Citigroup Action,
BOA Action, and Capital One Action.

E.

Complete Preemption Under the DIDA
In the Notice by which the Discover Action was removed,

Defendants
Institutions

claim

complete

Deregulation

preemption
and

Monetary

(“DIDA”), codified at 12 U.S.C. § 1831d.16

16

under

the

Control

Act

Depository
of

Under DIDA:

The NBA does not apply in the Discover Action because
that lawsuit was brought against a state-chartered bank.
43

1980

In order to prevent discrimination against Statechartered insured depository institutions, including
insured savings banks, or insured branches of foreign
banks with respect to interest rates, if the applicable
rate prescribed in this subsection exceeds the rate such
State bank or insured branch of a foreign bank would be
permitted to charge in the absence of this subsection,
such State bank or such insured branch of a foreign bank
may, notwithstanding any State constitution or statute
which is hereby preempted for the purposes of this
section, take, receive, reserve, and charge on any loan
or discount made, or upon any note, bill of exchange, or
other evidence of debt, interest at a rate of not more
than 1 per centum in excess of the discount rate on
ninety-day commercial paper in effect at the Federal
Reserve bank in the Federal Reserve district where such
State bank or such insured branch of a foreign bank is
located or at the rate allowed by the laws of the State,
territory, or district where the bank is located,
whichever may be greater.
If the rate prescribed in subsection (a) of this section
exceeds the rate such State bank or such insured branch
of a foreign bank would be permitted to charge in the
absence of this section, and such State fixed rate is
thereby preempted by the rate described in subsection (a)
of this section, the taking, receiving, reserving, or
charging a greater rate of interest than is allowed by
subsection (a) of this section, when knowingly done,
shall be deemed a forfeiture of the entire interest which
the note, bill, or other evidence of debt carries with
it, or which has been agreed to be paid thereon. If such
greater rate of interest has been paid, the person who
paid it may recover in a civil action commenced in a
court of appropriate jurisdiction not later than two
years after the date of such payment, an amount equal to
twice the amount of the interest paid from such State
bank or such insured branch of a foreign bank taking,
receiving, reserving, or charging such interest.
12 U.S.C. § 1831d(a) and (b), respectively.

Several courts that

have examined the DIDA have found that it completely preempts state
usury law claim alleged against state chartered banks.
In

re

Commt’y

2005)(finding

Bank
that

of.
DIDA

N.

Va.,

418

“completely

F.3d

277,

preempts

295

any

See e.g.
(3d

Cir.

state

law

attempting to limit the amount of interest and fees a federally
44

insured-state chartered bank can charge.”). See also Discover Bank
v. Vaden, 489 F.3d 594, 606 (4th Cir. 2007), rev’d on other grounds
556 U.S. 49 (2009)(finding, based on (1) the express preemption
language

of

the

DIDA;

(2)

the

statute’s

legislative

history

affirming Congress’ intent to provide competitive equality between
national and state-chartered banks, (3) the virtual identity of the
preemption language in the NBA and that of the DIDA, and (4) the
Supreme Court’s finding of complete preemption under the NBA, that
it would be “hard-pressed to conclude other than that Congress
intended complete preemption of state-court usury claims under the
[DIDA].”).

This Court joins in these decisions.

For the reasons discussed above regarding the findings that
the Payment Protection Plan fees constitute interest and that the
State has challenged the excessive rate at which the fees are
allegedly being charged, the Court finds that these claims in the
Discover Action would be preempted under the DIDA for the same
reasons they are preempted under the NBA.

IV.
In

summation,

the

Conclusion

Court

finds

it

may

properly

exercise

diversity jurisdiction in each of the subject lawsuits in this
consolidated action under the mass action provision of the CAFA.
The Court additionally finds it may exercise federal question
jurisdiction in the Chase Action, HSBC Action, Citigroup Action,
BOA Action, and Capital One Action because some of state claims
alleged in those cases are preempted under the NBA, and it may
45

exercise federal question jurisdiction in the Discover Action
because some of state claims alleged in that case are preempted
under the DIDA.

Finally, with respect to any claim(s) the Court

cannot

federal

exercise

subject

matter

jurisdiction,

exercise supplemental jurisdiction under 28 U.S.C. § 1367.

it

may

As the

Court finds it may exercise subject matter jurisdiction in each of
the subject lawsuits, the Motions filed by the State of Mississippi
to Remand shall be denied.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the Clerk of Court is hereby
directed to file a copy of this Opinion and Order in each of the
civil actions in this consolidated case.
IT IS FURTHER ORDERED that the Motion of Plaintiff to Remand
in the Chase Action, Civil Action No. 3:12-cv-565 [Docket No. 11]
is hereby denied.
IT IS FURTHER ORDERED that the Motion of Plaintiff to Remand
in the HSBC Action, Civil Action No. 3:12-cv-571 [Docket No. 11] is
hereby denied.
IT IS FURTHER ORDERED that the Motion of Plaintiff to Remand
in the Citigroup Action, Civil Action No. 3:12-cv-572 [Docket No.
9] is hereby denied.
IT IS FURTHER ORDERED that the Motion of Plaintiff to Remand
in the Discover Action, Civil Action No. 3:12-cv-573 [Docket No.
11] is hereby denied.
IT IS FURTHER ORDERED that the Motion of Plaintiff to Remand
in the BOA Action, Civil Action No. 3:12-cv-574 [Docket No. 9] is
46

hereby denied.
IT IS FURTHER ORDERED that the Motion of Plaintiff to Remand
in the Capital One Action, Civil Action No. 3:12-cv-575 [Docket No.
8] is hereby denied.
IT IS FURTHER ORDERED that the remand-related stay in this
case is hereby vacated.
IT IS FURTHER ORDERED that the Orders by which these civil
actions were consolidated [Docket Nos. 19 and 20], shall remain in
effect until further order of the Court.

Consolidation is being

maintained to (1) effectuate a consolidated appeal in the event any
of the parties seeks such review under 28 U.S.C. § 1292 and/or 28
U.S.C. § 1453, and (2) permit the parties and magistrate judge the
opportunity to discuss whether the cases should remain consolidated
through, at least, the discovery phase of litigation.
SO ORDERED this the 31st day of July, 2013.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

47