Corpe, II et al v. Bank of America, N.A. et al

Filing 17

ORDER - Motions terminated: denying 8 plaintiffs' MOTION to remand and granting 10 plaintiffs' MOTION for extension of time to file response to 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Suggestions in opposition/response now due 2/8/2013 unless otherwise directed by the court and Reply suggestions now due 2/22/2013 unless otherwise directed by the court. Signed on 1/22/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ANTHONY G. CORPE, et al.,
Plaintiffs,
v.
BANK OF AMERICA, N.A., et al.,
Defendants.

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Case No. 2:12-CV4229-FJG

ORDER
Currently pending before the Court is Plaintiffs’ Motion to Remand (Doc. No. 8 &
9). Also, pending before the Court is Defendant Bank of America’s Motion to Dismiss
(Doc. No. 3), Defendant Millsap & Singer P.C.’s Motion to Dismiss (Doc. No. 7), and
Plaintiffs’ Motion for Extension of Time (Doc. No. 10).
I.

BACKGROUND
On July 14, 2011, Plaintiffs Anthony Corpe and Valerie Corpe (“Plaintiffs”)

brought suit to forestall a foreclosure in the Circuit Court of Pettis County, Missouri. On
July 24, 2012, Plaintiffs filed a First Amended Petition asserting the following causes of
action: (1) Declaratory Judgment; (2) Temporary Restraining Order, Preliminary
Injunction, Permanent Injunction; (3) Breach of Contract/Breach of Duty of Good Faith
and Fair Dealing; (4) Fraudulent Misrepresentation; (5) Negligent Misrepresentation; (6)
Violation of the Missouri Merchandising Practices Act (“MMPA”); and (7) Violation of
Racketeering and Influence Corrupt Organizations (“RICO”) provisions. Plaintiff’s
seventh cause of action under RICO was raised for the first time in the First Amended

Petition. On August 20, 2012, Defendants Bank of America and Millsap & Singer
(“Defendants”) removed the case to federal court pursuant to 28 U.S.C. § 1446. On
September 10, 2012, Plaintiffs filed the present Motion to Remand the case. (Doc. No.
1, 8, 9, 12, & 13).
II.

STANDARD OF REVIEW
28 U.S.C. § 1441 states in part:
(a) Generally- Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed
by the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such
action is pending.
------(c) If a civil action includes (A) claim arising under the Constitution,
laws or treaties of the United States, and (B) a claim not within the
original or supplemental jurisdiction of the district court or a claim that
has been made nonremovable by the statute, the entire action may be
removed if the action would be removable without the inclusion of the
claim described in subparagraph (B).
28 U.S.C. 1367 Supplemental jurisdiction states in part:
(a) Except as provided in subsections (b) and (c) or as expressly
provided otherwise by federal statute, in any civil action of which the
district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.

It is the Defendant’s burden to prove that removal is proper and that all
prerequisites are satisfied. See generally Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d
809, 814 (8th Cir. 1969). The removal statute is to be narrowly construed, and any
doubt about the propriety of removal is resolved in favor of state court jurisdiction.

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Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); See also In re
Business Men’s Assurance Co. of America, 992 F.2d 181, 183 (8th Cir. 1993).
III.

DISCUSSION
A.) Plaintiff’s Motion to Remand (Doc. No. 8 & 9)
Plaintiffs primarily rely on Tafflin v. Levitt, 493 U.S. 455 (1990) to assert that this

action should be remanded to state court. In Tafflin, the Court held that states have
concurrent jurisdiction to consider civil claims arising under RICO. Id. at 467. The
Court began with the established principle that under our federal system, states
possess sovereignty concurrent with that of the Federal Government subject only to
limitations imposed by the Supremacy Clause. Id. at 458. Thus, state courts have
inherent authority, and are thus presumptively competent, to adjudicate claims arising
under the laws of the United States. Id. at 458. The precise question the Court
considered was whether state courts are divested of jurisdiction to hear civil RICO
claims by an explicit statutory directive, by unmistakable implication from legislative
history, or by a clear incompatibility between state-court jurisdiction and federal
interests. Id at 460. The Court determined that there was no such provision under
RICO. Id. at 460-67. Therefore, RICO claims are considered to have permissive
federal jurisdiction and concurrent state jurisdiction. Further, Plaintiffs state equitable
concerns support remand. Where both federal and state courts are equally competent
to decide an action and Plaintiff chooses to file the action in state court, that choice
should be respected. Finally, Plaintiffs state judicial economy concerns support
remand. Allegations of improper foreclosure activity are widespread within the state of
Missouri and the Court could find itself deluged with additional non-diverse mortgage
foreclosure cases if RICO claims become commonplace in such litigation. Additionally,
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the new removal rule taken effect in January 2012 under 28 U.S.C. § 1441(c) requires
that state-law claims over which federal courts do not have supplemental jurisdiction
must be severed and remanded to state court, requiring simultaneous and inefficient
litigation in state and federal courts. As such, the best option is to remand the entire
action to state court. Missouri foreclosure law is difficult for state courts to reconcile,
and would be even harder for federal courts. Given the above, Plaintiffs assert this
action should be remanded. (Doc. No. 8, 9, & 13).
Defendants assert Plaintiffs reliance on Tafflin is misplaced. Defendants state
that while state courts do, indeed, have concurrent jurisdiction to preside in RICO
cases, that point has no bearing on this case, because Tafflin is a case about the
doctrine of “federal abstention”. This case is about the doctrine of removal. The
Defendants against whom the RICO claim had been lodged in Tafflin could have
presumably chosen to remove the case to federal court, but they opted not to. As case
law indicates, “removal is at the defendant’s option.” Caterpillar, Inc. v. Williams, 482
U.S. 386, 399 (1987). Similarly, in the case now before the Court, Defendants could
have opted not to remove the case to federal court, but when Plaintiffs chose to interject
the federal RICO claim into their First Amended Petition, Defendants then had the right
to remove the case to federal court at their option. Defendants have chosen to assert
this option. As such, Defendants assert this case should not be remanded to state
court. (Doc. No. 12).
A RICO claim is one “arising under the laws of the United States” and thus falls
within the district court’s original jurisdiction and is removable pursuant to 28 U.S.C.
§1441; See also 28 U.S.C. § 1331. In Emrich v. Touche Ross & Co, 846 F.2d 1190,

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1195 -96 (9th Cir. 1988), the Ninth Circuit considered the same issue presently before
this Court regarding the removal of RICO claims.1 In Emrich, Plaintiff originally filed its
claims in state court. Id. This included a RICO claim and thus, the claim was removed
to federal court. Id. Plaintiff sought to have the action remanded to state court based
on the argument that state courts have concurrent jurisdiction to consider claims arising
under RICO. Id. The Court ruled that given Congress’ failure to specifically prohibit
removal, federal removal jurisdiction is retained. Id. The Court further stated that
“Plaintiff is also undeniably the master of his case. Should he desire to keep the case in
state court, he could base the claim squarely on state law rather than assert a parallel
federal right.” Id. at 1196; See also Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.
2009). Accordingly, this Court retains jurisdiction over Plaintiffs’ RICO claim.
The issue now before the Court is whether to exercise supplemental jurisdiction
over the remaining claims. Plaintiffs state the RICO activity predated the foreclosure
activities that injured Plaintiffs and thus, the remaining claims are separate and distinct
from the state-law claims brought by Plaintiffs (Doc. No. 13). As such, Plaintiffs state
supplemental jurisdiction is inappropriate (Doc. No. 13). The Court disagrees with
Plaintiffs. All of the claims asserted by Plaintiffs arise from the same nucleus of
operative fact (Doc. No. 1). As such, the Court extends supplemental jurisdiction to the
remainder of Plaintiffs’ claims. Accordingly, Plaintiff’s Motion to Remand (Doc. No. 8 &
9) is DENIED.

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 The Court concurs with Defendants assessment of Tafflin and its dissimilarity to the present case in that 
Defendants in Tafflin did not opt for removal based upon RICO claim.  Tafflin, 493 U.S. 455. 

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B.) Defendant Bank of America’s Motion to Dismiss (Doc. No. 3), Defendant
Millsap & Singer P.C.’s Motion to Dismiss (Doc. No. 7), and Plaintiffs’
Motion for Extension of Time (Doc. No. 10).
On August 22, 2012, Defendant Bank of America filed a Motion to Dismiss (Doc.
No. 3). Plaintiffs’ response was due on or before September 10, 2012. On August 27,
2012, Defendant Millsap & Singer P.C. filed a Motion to Dismiss (Doc. No. 7). Plaintiffs’
response was due on or before September 13, 2012. On September 12, 2012, Plaintiff
filed a Motion for Extension of Time (Doc. No. 10) moving the Court for an extension of
time for filing its response to both Motions to Dismiss. Plaintiffs requested the extension
in anticipation of the Court’s ruling on the Motion to Remand (Doc. No. 10). Given the
Court’s ruling above, Plaintiffs’ Motion for Extension of Time (Doc. No. 10) is hereby
GRANTED. Plaintiffs shall file a response to both Motions to Dismiss on or before
February 8, 2013. Reply Suggestions shall be due on or before February 22, 2013.
IV.

CONCLUSION
Plaintiff’s Motion to Remand (Doc. No. 8 & 9) is DENIED. Plaintiffs’ Motion for

Extension of Time (Doc. No. 10) is hereby GRANTED. Plaintiffs shall file a response to
both Motions to Dismiss (Doc. No. 3 & 7) on or before February 8, 2013. Reply
Suggestions for both Motions to Dismiss (Doc. No. 3 & 7) shall be due on or before
February 22, 2013.
IT IS SO ORDERED.
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: January 22, 2013
Kansas City, Missouri

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