Chipego v. Five Star Bank
MEMORANDUM and ORDER dismissing class action allegations and directing pltfsto show cuase w/i 7 days re basis of this court's jurisdiction.Signed by Honorable James M. Munley on 4/6/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MATTHEW L. CHIPEGO,
CONSTANCE C. CHURCHILL and
JOSEPH W. EWING,
FIVE STAR BANK,
MEMORANDUM and ORDER
Before the court is the instant case which plaintiffs style as a class
action. For the reasons that follow, we will sua sponte dismiss the class
Plaintiff Matthew L. Chipego instituted the instant lawsuit on
December 14, 2016 with the filing of a complaint. The two-page complaint
contains the words “CLASS ACTION” in the caption, but the complaint
itself contains no class action allegations. (Doc. 1, Compl.).
The facts alleged in the complaint are as follows:
Plaintiff bought an automobile on June 14, 2013 and financed the
purchase through Defendant Five Star Bank. (Id. ¶¶ 3-4). The Bank
eventually repossessed the vehicle, claiming default by plaintiff. (Id. ¶ 5).
The complaint alleges that the defendant bank’s repossession and
collection tactics violated a federal statute, to wit, 15 U.S.C. § 1692f(6).
Specifically, plaintiff alleged that the bank utilized a commercially
unreasonable repossession and the bank failed to follow contractual
requirements for duties of a lender in repossession of a vehicle. (Id. ¶¶ 78). The original complaint sought damages, counsel fees and costs. (Id.
As noted, this original complaint contains no class action allegations.
Although not explicitly mentioned in the original complaint, jurisdiction in
the federal system is evidently premised on the existence of a federal
question as plaintiff bases his suit on 15 U.S.C. § 1692f(6).
Plaintiff filed an amended complaint on January 4, 2017. This
complaint does not assert a cause of action under 15 U.S.C. § 1692f(6).
Rather, it bases its claims on New York law and Pennsylvania law.
Jurisdiction in the federal system is based upon the Class Action Fairness
Act of 2005 as codified in pertinent part in 28 U.S.C. § 1332(d). (Doc. 4,
Am. Compl. ¶ 4).
The amended complaint adds three plaintiffs. All of whom have
claims against the defendant bank regarding the financing of automobiles,
repossession of the vehicles and the notice provided post-repossession.
(See generally Doc. 4, Am. Compl.).
Class action proceedings are governed by certain rules, including
rules found in the Local Rules of Civil Procedure of the United States
District Court for the Middle District of Pennsylvania (hereinafter “L.R.”).
See L.R. 23.1-23.3. These rules require placing the legend “Complaint Class Action” next to the caption of the complaint. L.R. 23.1
Further, the rules govern the contents of the complaint. The rules
require a separate section in the complaint with the heading “Class Action
Allegations”. L.R. 23.2. This section of the complaint must indicate under
which subsection of Rule 23 of the Federal Rules of Civil Procedure the
plaintiff asserts a class action is appropriate. L.R. 23.2(a). This section
must also include appropriate allegations to justify that the case is
maintainable as a class action including: the size of the alleged class; the
basis upon which the plaintiff or his claims are adequate to represent the
class; the alleged questions of fact and law claimed to be common to the
class; and allegations thought to support the finding required by Rule 23(b)
if that is the rule under which the plaintiff seeks to proceed. L.R. 23.2(b).
Plaintiff’s original complaint completely failed to meet the
requirements of L.R. 23.2. The Amended Complaint makes averments that
seemingly attempt to meet the requirements of rule 23.2.
The Local Rules, however, contain one more requirement for class
actions. “Within ninety (90) days after filing of a complaint in a class
action, unless this period is extended on motion for good cause appearing,
the plaintiff shall move for a determination under subdivision (c)(1) of
Fed.R.Civ.P. 23, as to whether the case is to be maintained as a class
action[.]” L.R. 23.3.
Plaintiffs have not filed a motion for class action determination and
the time for such filing has passed.1 Thus, for failure to file a timely motion,
the court sua sponte determines that this case will not proceed as a class
Four plaintiffs are involved with the amended complaint, two
Pennsylvania plaintiffs seeking to enforce a Pennsylvania statute and two
New York plaintiffs seeking to enforce New York statute. As we have
dismissed the class action claims under which the plaintiffs asserted this
The plaintiff filed this case on December 14, 2016, thus the motion
for class action determination was due on or about March 14, 2017.
court’s jurisdiction, the plaintiffs are hereby directed to show cause within
seven (7) days from the date of this order regarding the basis of this court’s
jurisdiction. Failure to respond timely will result in dismissal of the action.
Date: April 6, 2017
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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