Resurgent Capital Services LP v. Thomason
Filing
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ORDER and OPINION granting 7 Defendant's motion to remand. Signed on 11/05/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
RESURGENT CAPITAL SERVICES LP,
Plaintiff,
vs.
MICHAEL THOMASON,
Defendant.
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Case No. 12-3436-CV-ODS
ORDER AND OPINION GRANTING DEFENDANT’S MOTION TO REMAND
Pending is Defendant’s Motion to Remand. For the reasons set forth below, the
Motion is granted and the case is remanded to the Circuit Court of Polk County, Missouri.
I. BACKGROUND
On July 9, 2012, Plaintiff Resurgent Capital Services, LP (“Resurgent”) filed this
action in Polk County, Missouri asserting allegations of non-payment of a certain debt.
Resurgent’s Petition asserted three claims, all of which arise under state law. On August
20, 2012, Defendant Michael Thomason (“Thomason”) filed his Answer and affirmative
defenses. Thomason also filed a counterclaim against Resurgent alleging violations of
the Fair Debt Collection Practices Act, and requesting class action status.
On September 21, 2012, Resurgent filed a Notice of Removal to this Court under
28 U.S.C. § 1441. On September 28, 2012, Thomason filed his Motion to Remand. On
October 12, 2012, Resurgent filed Suggestions in Opposition to Defendant’s Motion to
Remand alleging that the Class Action Fairness Act (“CAFA”) expands removal authority
to include counterclaim defendants in class action suits.
II. DISCUSSION
Before CAFA, the law had long been settled that a plaintiff in state court who
becomes a counterclaim defendant could not remove the action to federal court.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). The issue presented before
this Court is whether CAFA expands removal authority to include a plaintiff in state court
who becomes a counterclaim defendant.
1. Statutory Interpretation
The starting point in interpreting the statute is the language of the statute itself.
U.S. v. S.A., 129 F.3d 995, 998 (8th Cir. 1997). “If the plain language of the statute is
unambiguous, that language is conclusive absent clear legislative intent to the contrary.”
Id. However, if the language is ambiguous, the Court should consider “the purpose, the
subject matter and the condition of affairs which led to its enactment.” Id. (quoting
Lambur v. Yates, 148 F.2d 137, 139 (8th Cir. 1945)). The traditional removal statute
states:
Any civil action brought in State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendants or the
defendant . . . .
28 U.S.C. § 1441(a) (emphasis added). The CAFA removal statute states:
A class action may be removed to a district court of the United States in
accordance with section 1446 (except that the 1-year limitation under section
1446(b) shall now apply), without regard to whether any defendant is a citizen of
the State in which the action is brought, except that such action may be removed
by any defendant without the consent of all defendants.
28 U.S.C. § 1453(b) (emphasis added).
Resurgent argues that the modifier “any” in the CAFA removal statute expands the
definition of “defendant” to include counterclaim defendants. The Court disagrees. A
simple modifier is not enough to change the settled definition of “defendant.”
See
Deutsche Bank Nat. Trust Co. v. Collins, No. 4:11-CV-04092-SOH, 2012 WL 768206, at
*2 (W.D. Ark. Mar. 7, 2012). The provision that removal can be effectuated by “any
defendant without the consent of all defendants” is intended to specify that all defendants
need not join in removal, as is the case in non-CAFA cases involving multiple defendants.
Further, other Circuits have held that a counterclaim defendant may not remove under
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CAFA. See Palisades Collections, LLC v. Shorts, 552 F.3d 327, 337 (4th Cir. 2008);
First Bank v. DJL Properties, LLC, 598 F.3d 915, 918 (7th Cir. 2010); Progressive West
Ins. Co. v. Preciado, 479 F.3d 1014, 1018 (9th Cir. 2007); Westwood Apex v. Contreras,
644 F.3d 799, 807 (9th Cir. 2011).
2. Legislative History
Resurgent also argues the purpose behind CAFA supports expanding removal
authority to counterclaim defendants. The Court recognizes the purpose behind CAFA
was to broaden federal-court jurisdiction over class-action suits. See, e.g., Palisades
Collections, LLC v. Shorts, 552 F.3d 327, 342 (4th Cir. 2008) (Niemeyer, J., dissenting)
(discussing the history and purpose of CAFA). “CAFA undoubtedly broadened the three
traditional rules of removal jurisdiction by: (1) allowing a single defendant to remove
without unanimous consent of other defendants; (2) allowing a home-state defendant to
remove; and (3) eliminating the one-year limitation on removal.” Deutsche, 2012 WL
768206, at *3. However, the purpose behind CAFA was not to fundamentally alter the
traditional removal definition of “defendant.” Id. If that were the case, Congress would
have made it clear that “any party” or “counterclaim defendants” could remove the case to
federal court.
III. CONCLUSION
There is nothing in the language or legislative history of CAFA that alters the
traditional rule that a counterclaim defendant may not remove a case to federal court.
Defendant Thomason’s Motion to Remand is granted, and the case is remanded to the
Circuit Court of Polk County, Missouri for further proceedings. All other motions remain
pending for disposition by the state court.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: November 5, 2012
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