Marro v. CitiBank N.A., Inc.
Filing
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MEMORANDUM OPINION re: 2 MOTION to Dismiss for Failure to State a Claim, MOTION to Dismiss for Failure to Join a Party under Rule 19 by CitiBank N.A., Inc.., 13 MOTION to Remand, or in the alternative, to Nonsuit by Donald C. Marro. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 10/31/12. (nhall)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
DONALD C. MARRO,
)
)
)
)
)
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)
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Plaintiff,
v.
CITIBANK N.A.,
Defendant.
1:12cv932 (JCC/TCB)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff’s “Motion
to Remand, or in the Alternative, to Nonsuit” (the “Motion to
Remand or Nonsuit”) [Dkt. 13] and Defendant’s Motion to Dismiss
[Dkt. 2].
For the following reasons, the Court will deny in
part and grant in part Plaintiff’s Motion to Remand or Nonsuit
and deny Defendant’s Motion to Dismiss as moot.
I.
Background
On July 16, 2012, Plaintiff filed his Complaint in the
General District Court of Fauquier County, Virginia.
1.]
[Dkt. 1-
In his Complaint, Plaintiff brings five counts: Count I is
titled “Breach of Contract” and, in addition to alleging breach
of contract, requests among other things damages under 15 U.S.C.
§ 1640, a provision of the Truth in Lending Act (“TILA”), 15
U.S.C. § 1601 et seq.; Count II is titled “Further Breach of
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Contract” and, in addition to alleging breach of contract,
alleges the loan contract at issue was “subject to federal truth
in lending . . . statute[],” alleges a “breach of 15 USC 1666c,”
and requests among other things “statutory damages;” Count III
also is titled “Further Breach of Contract” and, in addition to
alleging breach of contract, alleges that the loan contract at
issue was “subject to federal truth in lending . . . statute[],”
and requests among other things “statutory damages;” Count IV is
titled “59.1-200” and alleges breach of the Virginia Consumer
Protection Act; and Count VI alleges “Fraudulent Inducement of
Contracts.”
[Id. at 5-8.]
On August 21, 2012, Defendant removed the action to
this Court.
[Dkt. 1.]
On August 28, 2012, Defendant filed a
Motion to Dismiss for Failure to State a Claim and Failure to
Join a Party under Rule 19 (the “Motion to Dismiss”), which
included a Roseboro notice.
memorandum in support.
[Dkt. 2.]
[Dkt. 3.]
Defendant also filed a
Defendant originally noticed
its Motion to Dismiss for hearing on October 5, 2012.
[Dkt. 5.]
On September 10, 2012, Defendant filed an amended Notice of
Hearing Date, moving the hearing to October 19, 2012.
[Dkt. 8.]
The next day, Defendant filed another amended Notice of Hearing
Date, moving the hearing to October 26, 2012.
[Dkt. 10.]
October 9, 2012, Defendant filed a final amended Notice of
2
On
Hearing Date, moving the hearing on its Motion to Dismiss to
November 2, 2012.
[Dkt. 25.]
On September 11, 2012, Plaintiff filed a “Notice of
Objection and Objection to Defendant’s Premature Motion to
Dismiss.”
[Dkt. 11.]
Defendant responded to this filing on
September 13, 2012 [Dkt. 12], and Plaintiff replied on September
18, 2012 [Dkt. 18.]
On September 5, 2012, Plaintiff filed a “Notice of
Intent to Petition for Remand.”
[Dkt. 4.]
On September 14,
2012, Plaintiff filed a “Motion to Remand, or In The Alternative
to Nonsuit” (the “Motion to Remand or Nonsuit”).
[Dkt. 13.]
Plaintiff also filed a declaration in support of his Motion to
Remand or Nonsuit on September 20, 2012 [Dkt. 20], and noticed
the motion for hearing on November 2, 2012 [Dkt. 21].
Defendant
filed its opposition brief on September 27, 2012 [Dkt. 22], and
Plaintiff replied on October 5, 2012 [Dkt. 26].
On September 6, 2012, Plaintiff filed a “Notice of
Motion and Motion to Amend a Briefing Schedule” (the “Motion to
Amend Briefing Schedule”).
[Dkt. 7.]
On September 11, 2012,
Magistrate Judge Theresa C. Buchanan entered an Order denying
Plaintiff’s Motion to Amend Briefing Schedule.
[Dkt. 9.]
In
response, Plaintiff filed a “Rule 72 Objection to Magistrate
Judge Order and Motion for Reconsideration” (the “Rule 72
Objection”).
[Dkt. 14, 15.]
Defendant filed its opposition
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brief on October 1, 2012 [Dkt. 24], and Plaintiff replied on
October 9, 2012 [Dkt. 27].
On October 10, 2012, Plaintiff filed
a “Motion to Continue 10/26/12 Hearing Date for Defendant’s
Motion to Dismiss” (the “Motion to Continue”).
Defendant responded on October 18, 2012.
[Dkt. 28.]
[Dkt. 31.]
This Court
denied Plaintiff’s Rule 72 Objection and his Motion to Continue
on October 23, 2012.
[Dkt. 33]
Plaintiff’s Motion to Remand or Nonsuit and
Defendant’s Motion to Dismiss are before the Court.
II.
A.
Standard of Review
Motion to Remand or Nonsuit
Civil actions over which a federal court would have
original jurisdiction can be removed by the defendant from state
court to the appropriate federal district court pursuant to 28
U.S.C. § 1441.
The party seeking removal bears the burden of
establishing federal jurisdiction.
See, e.g., Mulcahey v.
Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97
(1921)).
“If federal jurisdiction is doubtful, a remand is
necessary.” Id. (citations omitted).
B.
Pro se Plaintiff
Complaints filed by pro se plaintiffs are construed
more liberally than those drafted by an attorney.
Kerner, 404 U.S. 519, 520 (1972).
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See Haines v.
“However inartfully pleaded
by a pro se plaintiff, allegations are sufficient to call for an
opportunity to offer supporting evidence unless it is beyond
doubt that the plaintiff can prove no set of facts entitling him
to relief.”
Thompson v. Echols, No. 99–6304, 1999 WL 717280
(4th Cir. 1999) (citing Cruz v. Beto, 405 U.S. 319 (1972)).
While a court is not expected to develop tangential claims from
scant assertions in a complaint, if a pro se complaint contains
potentially cognizable claims, the plaintiff should be allowed
to particularize those claims.
Id. (citing Beaudett v. City of
Hampton, 775 F.2d 1274 (4th Cir. 1985); Coleman v. Peyton, 340
F.2d 603, 604 (4th Cir. 1965)).
III.
Analysis
In its Notice of Removal, Defendant argues removal is
appropriate under 28 U.S.C. § 1441(a).
(“Notice”) [Dkt. 1] ¶ 4).
(Notice of Removal
Defendant contends the Court has
original jurisdiction over Counts I-III under 28 U.S.C. § 1331
because these counts include requests for damages for violations
of the federal Truth in Lending Act (“TILA”), 15 U.S.C. § 1601
et seq., and supplemental jurisdiction over Plaintiff’s other
claims under 28 U.S.C. §§ 1367(a) and 1441(c).
¶ 3-5.)
(Notice [Dkt. 1]
In his Motion to Remand or Nonsuit, Plaintiff raises
three main arguments for remanding his case to state court: (1)
he argues that Defendant waived its right to remove; (2) he
argues that Defendant’s removal was not timely; and (3) he
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argues that the Court does not have original or pendant
jurisdiction over Counts I, IV, and V.
Nonsuit [Dkt. 13] at 3.)
(Pl. Mot. to Remand or
In the alternative, if his case cannot
be remanded, Plaintiff requests that the Court grant him leave
to nonsuit his case.
(Id. at 1.)
The Court concludes that remand is inappropriate in
this case.
First, the Court finds that Defendant did not waive
its right to remove the case to federal court.
Plaintiff
asserts that Defendant waived its right to remove by failing to
protest jurisdiction when he informed them about his Complaint
and by accepting service of process in a Virginia state court.
(Id. at 3.)
These actions do not support a finding of waiver.
The Fourth Circuit has stated that a defendant’s waiver of its
right to remove must be “clear and unequivocal” and will only be
found in “extreme situations.”
Grubb v. Donegal Mut. Ins. Co.,
935 F.2d 57, 59 (4th Cir. 1991).
Waiver may occur if a
defendant took “some such substantial defensive action in the
state court before petitioning for removal.”
Aqualon Co. v. Mac
Equipment, Inc., 149 F.3d 262, 264 (4th Cir. 1998).
In this
case, however, Defendants filed no pleadings or other documents
whatsoever – much less took any defensive actions -- in the
state court before removing the case to this Court.
[Dkt. 22] at 5.)
(Def. Opp.
Moreover, Defendant’s lack of immediate
objection to state court jurisdiction when initially informed
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about the Complaint, and later acceptance of service of process,
do not result in waiver.
Under 28 U.S.C. § 1446(b), defendants
have a 30 day period during which they can choose to remove a
case to federal court.
Nothing in this statute requires
immediate objection to jurisdiction or a refusal of service.
As
a result, none of Defendant’s alleged actions rise anywhere
close to the “extreme circumstances” necessary to show waiver.
Second, the Court finds that the facts show that
Defendant’s removal was timely.
on August 21, 2012.
Defendant removed this action
(Notice of Removal [Dkt. 1].)
Plaintiff
contests that this was untimely because he asserts that
Defendant first received notice and a copy of the Complaint on
July 5, 2012, agreed on July 16, 2012 that Defendant’s attorney
was authorized to accept service of process for the Complaint on
behalf of Defendant, and received notice of Plaintiff’s filing
the Complaint on July 19, 2012.
[Dkt. 13] at 2-3.)
(Pl. Mot. to Remand or Nonsuit
Defendant argues that its removal was timely
because (a) by the agreement of the parties, service of the
Complaint was not effected until July 23, 2012 and (b) it did
not receive a copy of the filed complaint until July 23, 2012.
(Notice of Removal [Dkt. 1] at 1; Def. Opp. [Dkt. 22] at 7; Ex.
1 to Def. Opp. [Dkt. 22-1].)
Under 28 U.S.C. § 1446(b), the 30 day period begins to
run either “after the receipt by the defendant, through service
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or otherwise, of a copy of the initial pleading” or “after the
service of summons upon the defendant if such initial pleading
has then been filed in court and is not required to be served on
the defendant,” “whichever period is shorter.”
of the former is at issue here.
The application
In interpreting this provision,
it is well established that this Court follows the “receipt
rule” which states that the 30 day period “commences when
defendant comes into possession of [a] copy of [the] initial
pleading, regardless of whether delivery thereof satisfies state
service-of-process rules.”
See Witzel v. 1969, Inc., 11 F.
Supp. 2d 684, 688 (E.D. Va. 1998) (collecting cases).
As a
result, Plaintiff is correct that it is irrelevant whether the
parties here agreed that formal service was effected on July 23,
2012.
Nonetheless, although formal service is unnecessary
under this rule, a defendant must receive an actual copy of the
initial pleading.
This Court has held that “constructive
receipt or some form of general notice” is insufficient to
satisfy the receipt rule.
753 (E.D. Va. 1997).
Murphy v. Allora, 977 F. Supp. 748,
Neither Plaintiff, nor the actual
underlying communications between the parties, indicates that
Defendant received anything beyond some form of general notice
on July 16 or 19, 2012.
(See Pl. Mot. to Remand or Nonsuit
[Dkt. 13] at 2; Pl. Reply [Dkt 26] at 2; Exs. 2-6 to Def. Opp.
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[Dkts. 22-2, 22-3, 22-4, 22-5, 22-6].)
Instead, the only two
days on which Defendant’s attorney received an actual version of
Plaintiff’s Complaint were July 5 and July 23, 2012.
(See Pl.
Mot. to Remand or Nonsuit [Dkt. 13] at 2; Def. Opp. [Dkt. 22] at
2-3, 6-8; Exs. 1-2, 7 to Def. Opp. [Dkts. 22-1, 22-2, 22-7].)
In addition, the Court concludes that only the July
23, 2012 version of the Complaint received by Defendant
constitutes the receipt of an “initial pleading” necessary to
trigger the 30 day period.
Courts in this district have held
that “it is not until a complaint has been filed in court that
it becomes an initial pleading” and that “a defendant has
received an initial pleading for purposes of the removal statute
only if the complaint bears a ‘filed’ stamp.”
Kurihara v. CH2M
Hill, Inc., 6 F. Supp. 2d 533, 536 (E.D. Va. 1998).
The version
of the Complaint sent by Plaintiff to Defendant on July 5 had
not been, and indeed never was, filed in court.
to Def. Opp. [Dkts. 22-2, 22-7].)
(See Ex. 2, 7
As a result, Defendant’s
receipt of that document on July 5, 2012 did not start the 30
day removal period.
That period did not commence until
Defendant received a copy of the actual, filed Complaint, an
event which first occurred on July 23, 2012.
As a result, the
Court concludes that Defendant’s removal on August 21, 2012 was
timely.
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Third, the Court finds that it has original and
supplemental jurisdiction.
The removal statute relied on by
Defendant provides that “[a]ny civil action of which the
district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties, or laws of the
United States shall be removable without regard to the
citizenship or residence of the parties.” 28 U.S.C. § 1441(a).
Federal district courts have original jurisdiction over “all
civil actions arising under the Constitution, laws, or treaties
of the United States.”
28 U.S.C. § 1331.
Under this provision,
federal question jurisdiction exists when a plaintiff’s cause of
action is created by federal law.
As Defendant notes,
Plaintiff’s Complaint seeks damages under TILA in Counts I, II,
and III and therefore presents an action arising under federal
law.
(See Compl. [Dkt. 1-1] at 5-7.)
Defendant concedes this as
to Counts II and III in his Motion to Remand or Nonsuit, since
as alternate relief he requests the dismissal of “counts (2) and
(3) to preclude federal jurisdiction” and excludes these counts
from his assertion that the Court does not have original or
pendant jurisdiction over his claims.
Nonsuit [Dkt. 13] at 1, 3.)
(Pl. Mot. to Remand or
In addition, Plaintiff admits that
he invoked a remedy under TILA in Count I, although he
characterizes this as “defensively as an optional election of
remedy under TILA in the event defendant responded by trying to
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evade responsibility . . . by contending that Virginia Consumer
Protection Statutes don’t apply to banking transactions.”
Reply [Dkt. 26] at 2.)
(Pl.
Regardless of this characterization by
Plaintiff, claims that invoke the protections and remedies
afforded by federal law -- as Counts I, II, and III do here -constitute claims arising under federal law and therefore
trigger federal question jurisdiction.
Moreover, nothing
precludes this Court from exercising supplemental jurisdiction
over the state law claims in Counts IV and V and any state law
claims encompassed in Counts I-III in addition to the TILA
claims in those counts.
These claims involve straightforward
issues of Virginia law on consumer protections, contracts, and
fraud.
(See Compl. [Dkt. 1-1] at 7-8.)
As the Court concludes that Defendant did not waive
removal, that removal was timely, and that this Court properly
has jurisdiction over this action, the Court will deny in part
Plaintiff’s Motion to Remand or Nonsuit with respect to his
argument for remand.
The Court, however, will grant in part Plaintiff’s
Motion with respect to his request for voluntary dismissal of
his case.
In his Motion, if remand is unavailable, Plaintiff
requests that the Court grant him “leave to nonsuit” his case to
preclude federal jurisdiction.
[Dkt. 13] at 1, 7.)
(Pl. Mot. to Remand or Nonsuit
Although Plaintiff grounds his request for
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this relief in Virginia state law, nonsuits “are no longer in
use in the federal courts under the Federal Rules of Civil
Procedure.”
1985).
Scoggins v. Douglas, 760 F.2d 535, 538 (4th Cir.
Instead, Federal Rule of Civil Procedure 41 sets out an
“analogous procedure” to Virginia nonsuit, providing that
plaintiff voluntarily “may dismiss an action without a court
order by filing: (i) a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgment.”
Fed. R. Civ. P. 41(a)(1)(A)(i).
Although Plaintiff references
Virginia nonsuit, his underlying request is in essence for his
case to be voluntarily dismissed, relief which Rule 41 does
provide in federal court.
As the Fourth Circuit noted in
Scoggins, “the difference in a Rule 41 dismissal and a Virginia
nonsuit under Va. Code § 8.01-380 goes more to matters of form
than substance” as “both the federal rule and the Virginia
statute have as their purpose the voluntary dismissal of an
action by a plaintiff without prejudice at some stage of a
proceeding.”
760 F.2d at 538.
In light of this common purposes
and the liberal construction by the Court of pro se plaintiffs’
pleadings, the Court construes Plaintiff’s request as a notice
of voluntary dismissal of his case under Rule 41.
Voluntarily
dismissal is available to Plaintiff because he requested this
relief prior to Defendant filing either an answer or a motion
for summary judgment.
Therefore, given this construction of
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Plaintiff’s alternate relief requested, the Court finds that
Plaintiff successfully has dismissed his case voluntarily.
This
dismissal is without prejudice and Plaintiff may choose to
refile his case in state court.
Fed. R. Civ. P. 41(a)(1)(B).
As a final note of caution, however, the Court warns Plaintiff
that if he refiles a Complaint in state court which invokes
protections or remedies arising under federal law (“defensively”
or otherwise), then he runs the risk of Defendant again removing
his case to federal court.
IV.
Conclusion
For the reasons stated above, the Court will deny in
part and grant in part Plaintiff’s Motion to Remand or Nonsuit,
denying Plaintiff’s request to remand the case to state court
but granting his request to voluntarily dismiss it.
Defendant’s
Motion to Dismiss is denied as moot.
An appropriate Order will issue.
October 31, 2012
Alexandria, Virginia
/s/ __ __
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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