Pete v. Capital One National Association
Memorandum Opinion and Order: The court ORDERS that (1) plaintiff's motion for remand 9 be, and is hearby, denied; (2)defendant's motion to dismiss 6 be, and is hearby, denied; (3) Amended pleadings due by 9/21/2017; (4) Responses due by 9/28/2017. (see order for further specifics) (Ordered by Judge John McBryde on 9/14/2017) (edm)
CAPITAL ONE, NATIONAL
MEMORANDUM OPINION AND ORDER
Now pending are the motion of plaintiff, Quentin Pete, for
remand and the motion of defendant, Capital One, N.A.', to
dismiss. As explained below, the court finds that the motions
should be denied and that plaintiff should be given an
opportunity to file an amended complaint.
The record reflects that, on June 12, 2017, plaintiff filed
his original petition in the 96th Judicial District Court of
Tarrant County. In it, plaintiff named Capital One Bank, N.A., as
defendant. Doc.' 5, App.002. Plaintiff requested the clerk of the
state court to serve the defendant by registered or certified
'Capital One, N.A., says that it was improperly named "Capital One, National, Association." The
state court papers reflect that plaintiff named "Capital One, National Association" as defendant in its first
amended petition. Doc. 5, App. 012. Defendant appears to have inserted the extra comma, which is an
obvious typographical error.
"reference is to the number of the item on the docket in this action.
mail, return receipt requested. Id. at App.011. The clerk did so
by serving the named defendant's registered agent, Corporation
Service Company d/b/a CSC-Lawyers Incorporating Service
("Agent"). Id. at App. 020-023. Agent then sent a letter to
plaintiff purporting to reject service of process for the reason
that plaintiff had not properly named defendant. Doc. 11 at 015.
Agent did not forward the original petition to defendant. Doc. 15
on June 27, 2017, plaintiff filed his first amended
petition, this time naming Capital One, National Association as
defendant. Doc. 5, App. 012. The first amended petition was
served on Agent by the clerk in the same manner as the original
petition. Doc. 5, App. 024-027. This time, Agent forwarded the
pleading to defendant, which received it on July 5, 2017. Doc. 15
On July 24, 2017, defendant filed its notice of removal,
bringing the action before this court. Doc. 1. On July 31, 2017,
defendant filed its motion to dismiss. Doc. 6. Plaintiff has not
responded to the motion. On August 18, 2017, plaintiff
electronically filed his second amended complaint. Doc. 7. That
document was stricken as it violated the undersigned's judgespecific requirement that does not allow electronic filing. Doc.
Grounds of the Motions
Plaintiff maintains that defendant did not timely file its
notice of removal and, for that reason, the action must be
remanded to the state court.
Defendant maintains that plaintiff has not pleaded
sufficient facts to state a plausible claim for relief.
Applicable Pleading Standard
Rule B(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. B(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
a context-specific task that requires the
reviewing court to draw on its judicial experience and common
As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev.,
554 F.3d 525, 528
(S'h Cir. 2008). In sum,
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29.
Motion to Remand
Under Title 28, United States Code, section 1446(b), a
notice of removal must 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. Thus, there are two
conditions precedent to removal:
(1) formal service of process,
and (2) actual notice. Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 u.s. 344, 347-48
(1999); Medina v. JIK
Cayman Bay Exchange, LLC, No. 3:13-CV-3263-B, 2014 WL 923962, at
(N.D. Tex. Mar. 7, 2014). And, courts agree that the thirty-
day removal period begins after receipt by the named defendant of
the pleading and not simply after service on the its agent.
Medina, 2014 WL 923962, at *3; Barrackman v. Banister, No. H-063622, 2007 WL 189378, at *1 (S.D. Tex. Jan. 22, 2007) (citing
Here, the record reflects that defendant did not have notice
of plaintiff's lawsuit until it received the first amended
petition on July 5, 2017. The notice of removal filed July 24,
2017, was timely. Accordingly, the motion for remand must be
Motion to Dismiss
Although plaintiff failed to respond to defendant's motion
to dismiss, it appears that plaintiff can plead facts to support
his claims.' See Doc. 7. And, the court's practice is to require
amended pleadings after an action has been removed from state
court. Accordingly, the court will give plaintiff an opportunity
to file an amended complaint.
The court ORDERS that:
(1) plaintiff's motion for remand be, and is hereby, denied;
(2) defendant's motion to dismiss be, and is hereby, denied;
(3) by 4:00p.m. on September 21, 2017, plaintiff file his
second amended complaint in compliance with the pleading
requirements of the Federal Rules of Civil Procedure• and the
The court is not opining about the sufficiency of the second amended complaint.
''Plaintiff is to pay particular attention to, and comply with, the pleading requirements of Rule
8(a) of the Federal Rules of Civil Procedure, as explained and clarified by the Supreme Court in Bell At!.
(continued ... )
Local Civil Rules of the United States District Court for the
Northern District of Texas, and the judge-specific requirements
of the undersigned; and
(4) by 4:00p.m. on September 28, 2017, defendant file an
answer or other response to plaintiff's second amended complaint
in compliance with the requirements of the Federal Rules of Civil
Procedure and Local Civil Rules of the United States District
Court for the Northern District of Texas, and the judge-specific
requirements of the undersigned.
The court further ORDERS that failure of any party to comply
with this order may result in the imposition of sanctions, up to
and including dismissal of plaintiff's claims or granting of a
default judgment, as appropriate, without further notice.
SIGNED September 14, 2017.
'( ... continued)
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), as well as the
requirements of Rules 9(b) and I 0 of the Federal Rules of Civil Procedure.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?