Dill v. Comenity Bank/Sports Authority

Filing 11

ORDER granting in part and denying in part 7 Motion to Dismiss or For a More Definite Statement; granting 8 Motion to Vacate Default Judgment. Signed by Honorable Timothy D. DeGiusti on 2/13/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRANK W. DILL, an individual,
Plaintiff,
vs
COMENITY BANK/SPORTS
AUTHORITY,
Defendant.

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NO. CIV-13-1321-D

ORDER
Before the Court is the motion of Defendant Comenity Bank to dismiss the state court
pleading filed by Plaintiff in state small claims court or, in the alternative, for a more definite
statement [Doc. No. 7]. Also before the Court is Defendant’s motion to vacate the default
judgment entered in the state court after Defendant filed its Notice of Removal both in the
state court and this Court [Doc. No. 8]. Plaintiff has filed a combined response to both
motions [Doc. No. 10].
Defendant’s motion to vacate the state court default judgment must be granted. See,
e.g., Tarbell v. Jacobs, 856 F. Supp. 101, 104 (N.D.N.Y. 1994) (upon the filing of the Notice
of Removal in state court, state court jurisdiction ends and any further action by the state
court is void; federal court has the power to set aside default judgment entered in state court
after removal). See also 28 U.S.C. § 1446(d) (upon filing of a copy of the notice of removal
with the clerk of the state court, the state court “shall proceed no further unless and until the
case is remanded”).
Plaintiff’s pleading is so vague and ambiguous that Defendant Comenity Bank cannot

reasonably prepare a response. It states simply that Defendant owes Plaintiff $1,500.00 for
“violation of FDCPA, Sec. 8091.” See Notice of Removal, Ex. 1 [Doc. No. 1-1]. Under the
circumstances, the Court finds that Plaintiff should be ordered to file a complaint that
satisfies Rule 8(a), Fed. R. Civ. P. Therefore, pursuant to Rule 12(e), Fed. R. Civ. P.,
Defendant’s motion for a more definite statement [Doc. No. 7] will be granted, and Plaintiff
will be directed to file a complaint within fifteen (15) days sufficiently setting forth what he
claims Defendant did, and when and how Defendant’s acts and/or omissions violated the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. Accordingly, Defendant’s
alternative motion to dismiss will be denied.
In accordance with the foregoing, Defendant Comenity Bank’s motion to vacate the
default judgment entered in state court post-removal [Doc. No. 8] is GRANTED. That
default judgment was void ab initio and is VACATED. Further, Defendant Comenity Bank’s
motion for a more definite statement [Doc. No. 7] is GRANTED, and Plaintiff is ORDERED
to file a complaint containing a more definite statement of his claim or claims (as described
herein) within fifteen (15) days. Defendant Comenity Bank’s alternative motion to dismiss
[Doc. No. 7] is DENIED.
IT IS SO ORDERED this 13th day of February, 2014.

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