Wexberg v. RBS Citizens Bank, N.A. et al

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (ECF No. 20 ) is GRANTED, and that this case is REMANDED to the Circuit Court of the City of St. Louis, Missouri. A separate Order of Remand will accompany this Order. IT IS FURTHER ORDERED that Plaintiffs request for attorneys fees is DENIED. Signed by District Judge Jean C. Hamilton on 2/19/16. (KJS)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LOUIS WEXBERG, et al.,
Plaintiffs,
v.
RBS CITIZENS BANK, N.A., et al.,
Defendants.

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Case No. 4:15-cv-01777-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Remand, filed January 19, 2016.
(ECF No. 20.) The Motion has been fully briefed and is ready for disposition.
BACKGROUND
On February 19, 2015, Plaintiff Louis Wexberg filed a one-count complaint in the Circuit
Court of St. Louis City against Defendants RBS Citizens Bank, N.A. (“RBS”) and Sud’s Motor
Car Company, Inc. (“Sud’s”). (ECF No. 1.7 at 1.) Wexberg asserted that RBS and Sud’s had
violated the Missouri Merchandising Practices Act, based upon allegations that he had entered
into a purchase agreement with Suds to buy a motor vehicle, which was subsequently assigned to
RBS, and that Sud’s had engaged in fraud by failing to provide him with a proper certificate of
title. Id. at 1-5. Wexberg thereafter amended his complaint to add Citizens Automobile Finance,
Inc. as a party defendant. Id. at 27.
On August 7, 2015, Defendants filed a document titled “Suggestion of Bankruptcy,”
“inform[ing] [the] Court that on March 7, 2015, Plaintiff Louis Wexberg filed for Chapter 7
Bankruptcy in the United States Bankruptcy Court for the Eastern District of Missouri, Case No.:

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15-41526.” Id. at 142. Defendants attached as an exhibit a copy of Wexberg’s Chapter 7
Petition, which showed $149,800 in total liabilities. (ECF Nos. 1.7 at 144-148; 1.8 at 1-45.) On
August 10, 2015 Wexberg amended his complaint by interlineation to include the bankruptcy
trustee as a party plaintiff, and on August 12, 2015 Plaintiffs filed a second amended complaint
(hereinafter, “Amended Complaint”). (ECF No. 1.1; ECF No. 1.8 at 47, 62.)
In the Amended Complaint, Plaintiffs allege the following in connection to the
bankruptcy:
3. Plaintiff, Stuart Radloff, Trustee of the Bankruptcy Estate in Cause No. 1541526, is the Trustee for the bankruptcy estate, has standing to pursue this
lawsuit, and in whose name this lawsuit is also presently being pursued.
(ECF No. 1.1 ¶ 3.) In addition, similar to Wexberg’s original complaint, Plaintiffs allege the
following with respect to damages:
8. On or about June 12, 2012, Mr. Wexberg signed at least one document at the
Suds dealership, a Retail Purchase Agreement (“RPA”), in which he agreed to
purchase a 2010 Audi A5 for $43,000 (the majority amount of which was
financed), plus interest…
10. In connection with the above transaction, Suds and Wexberg discussed,
negotiated and agreed to other fees charged by Suds, including $161.39 for
documents and $25.00 for license and title fees…
25. Pursuant to RSMo. 407.025, this Court may award Mr. Wexberg his actual
damages, punitive damages, equitable relief, attorney[’]s fees, and the costs of
this action.
26. As a result of the foregoing, Mr. Wexberg and his family have suffered
harms, losses, and damage including damage to their credit and interest rates,
financial anxiety and distress, and other harms and losses that are difficult to
quantify such as humiliation and embarrassment, distress, and betrayal.
WHEREFORE Plaintiffs pray the Court enter Judgment to declare the
purported sale void and rescinded, award Mr. Wexberg in excess of $25,000 for
his actual damages, punitive damages in amounts that are fair and reasonable, his
reasonable attorney’s fees, and the costs of this action, and for such other and
further relief as the court deems just and proper in the circumstances.
(ECF Nos. 1.1 ¶¶ 8, 10, 25, 26; 1.7 at 1-6.)
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On December 2, 2015, Defendants filed a Notice of Removal, asserting diversity
jurisdiction. (ECF No. 1.) Defendants state therein that on November 2, 2015, in response to a
motion to dismiss filed by Sud’s, “[Wexberg] filed an Affidavit claiming for the first time that he
‘also suffered a bankruptcy’ as a result of [D]efendants’ alleged actions in this case.” Id. ¶ 21.
Defendants contend that, “based on Plaintiff’s newly alleged damages [(i.e., $149,800 in total
liabilities included in Wexberg’s bankruptcy petition)] combined with the damages alleged in the
[Amended Complaint], the amount in controversy exceeds $75,000.” Id. ¶¶ 22-23. Defendants
assert that their notice of removal is timely because it was filed within thirty days of receipt of
the Affidavit—the document from which, they argue, removability was first ascertainable. Id. ¶¶
25-30. Defendants have attached a copy the Affidavit to their Notice of Removal, the relevant
provision of which reads in its entirety:
17. I continued to make monthly payments to Citizens bank from my home in
Missouri. All of my monthly payments were made from my home in Missouri.
Nobody could legally drive this car in Missouri or register it in Missouri with the
title. I also can’t sell the car without the title, so its worthless. All of the harm
and damage has been done to me in Missouri, including the adverse effects on my
credit. I’ve also suffered a bankruptcy which I filed in Missouri.
(ECF No. 1.2 ¶ 17.)
Plaintiffs now move for remand, arguing that Defendants’ Notice of Removal was not
timely. (ECF No. 20.)
DISCUSSION
Plaintiffs contend that Defendants’ Notice of Removal was not timely under 28 U.S.C.
§ 1446(b). Section 1446(b) provides, in pertinent part, as follows:
(1) The notice of removal of a civil action or proceeding shall be filed within 30
days after the receipt by the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief upon which such action or
proceeding is based…
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(3) Except as provided in subsection (c), if the case stated by the initial pleading
is not removable, a notice of removal may be filed within 30 days after receipt by
the defendant, through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is
one which is or has become removable.
28 U.S.C. § 1446(b).
The section 1446(b) time limit, while not jurisdictional, is mandatory, and “a timely
motion to remand for failure to observe the thirty-day limit will be granted.” McHugh v.
Physicians Health Plan of Greater St. Louis, Inc., 953 F. Supp. 296, 299 (E.D. Mo. 1997)
(citations omitted); see also Johnson v. Wyeth, No. 4:06CV00286 ERW, 2012 WL 1829868, at
*3 (E.D. Mo. May 18, 2012). “[R]emoval statutes must be strictly construed,” and “any doubts
about the propriety of removal are resolved in favor of remand.” See Johnson, 2012 WL
1829868, at *3 (citations omitted).
The parties dispute when the thirty-day removal period began. Plaintiffs assert that the
“isolated statement” in Wexberg’s Affidavit, which references the location of Wexberg’s
bankruptcy filing “because location was relevant to the issues raised by Defendants’ motion to
dismiss for lack of personal jurisdiction,” revealed nothing that was not already known or
ascertainable by Defendants more than thirty days prior to removal. (ECF Nos. 20 at 3; 21 at 1.)
Plaintiffs contend that the thirty-day removal period began, “at the latest,” when Plaintiffs filed
their Amended Complaint, as their Amended Complaint “refers to the same bankruptcy filing
which lists the same financial liabilities and losses that serve as [Defendants’] basis for
removal.” (ECF No. 21 at 5.) Defendants counter that “knowledge of the bankruptcy did not
necessarily impute the knowledge of legal causation,” and that until Wexberg filed his Affidavit
“[i]t was not ascertainable that all of the liabilities and debts referenced in [Plaintiffs’ Amended
Complaint] were the direct result of the failure to deliver title.” (ECF No. 22 at 2.)
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The Court concludes that Wexberg’s Affidavit did not provide any information to
Defendants that was not already known or ascertainable by them more than thirty days prior to
removal. Although Defendants assert that “[Wexberg] filed an Affidavit claiming for the first
time that he ‘also suffered a bankruptcy’ as a result of [D]efendants’ alleged actions in this case,”
the Affidavit reads, “I’ve also suffered a bankruptcy which I filed in Missouri.” The Court finds
that Wexberg’s statement in the Affidavit, when read in totality and in context, did not explicitly
assert a new claim for damages.

Rather, the statement merely indicates the location of

Wexberg’s bankruptcy filing—a fact that was known to Defendants, at the latest, on August 7,
2015 when they filed their Suggestion of Bankruptcy.

Because Defendants knew of the

bankruptcy filing and its location prior to their receipt of the Affidavit, the Affidavit was not an
other paper from which it was first ascertainable that the case was or had become removable.
See 28 U.S.C. § 1446(b)(3); see also Allen v. Bayer Healthcare Pharmaceuticals, Inc., 4:14-CV420 (CEJ), 2014 WL 1613949, at *2 (E.D. Mo. Apr. 22, 2014) (Court must determine at what
point defendants could have intelligently ascertained that action was removable). Thus, the
Affidavit did not trigger an opportunity for Defendants to remove the matter, and the notice of
removal was not timely under section 1446(b).
Plaintiffs have requested attorney’s fees incurred in bringing this Motion. Pursuant to 28
U.S.C. § 1447(c), an order remanding a case “may require payment of just costs and any actual
expenses, including attorney’s fees, incurred as a result of the removal.” “As the statutory
language indicates, such an award is to be made at the court’s discretion.” See M&K Chem.
Eng’g Consultants, Inc. v. Mallinckrodt Inc., No. 4:08CV1194 CDP, 2008 WL 3981990, at *1
(E.D. Mo. Aug. 22, 2008) (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)).
In general, a district court may award attorney’s fees where the removing party had no

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“objectively reasonable basis” for removal. Martin, 546 U.S. at 141. Upon consideration, the
Court finds that an award of fees and costs is not warranted in this matter.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (ECF No. 20) is
GRANTED, and that this case is REMANDED to the Circuit Court of the City of St. Louis,
Missouri. A separate Order of Remand will accompany this Order.
IT IS FURTHER ORDERED that Plaintiffs’ request for attorney’s fees is DENIED.

Dated this 19th day of February, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE 

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