Hose et al v. Synchrony Bank
Filing
11
MEMORANDUM OPINION AND ORDER granting Defendant's 6 AMENDED MOTION to Transfer from U. S. District Court, Southern District of West Virginia, to U. S. District Court, Northern District of West Virginia; directing that the case be transferred to the United States District Court for the Northern District of West Virginia, Clarksburg Division. Signed by Judge Thomas E. Johnston on 11/19/2015. (cc: counsel of record; any unrepresented party) (tmh)[Transferred from West Virginia Southern on 11/20/2015.]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JACK HOSE, and,
SONJA HOSE,
Plaintiffs,
v.
CIVIL ACTION NO. 2:15-cv-13248
SYNCHRONY BANK,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Synchrony Bank’s Amended Motion to Transfer
this case to the United States District Court for the Northern District of West Virginia, Clarksburg
Division. (ECF No. 6.) For the reasons discussed herein, that motion is GRANTED.
I.
Background
This action was removed to this Court from the Circuit Court of Monongalia County, West
Virginia. On June 11, 2015, Jack and Sonja Hose filed a complaint before that court alleging
violations of the West Virginia Consumer Credit and Protection Act (“WVCCPA”). (ECF No. 11 at 2–6.) Specifically, Plaintiffs alleged that Defendant attempted to collect from them a debt
after Defendant knew that they were represented by counsel, in violation of § 46A-2-128(e) of the
WVCCPA. (Id. at 5.) That same day, the plaintiffs, through the Office of the Secretary of State,
served upon the defendants a copy of the complaint and a summons. (Id. at 9–12; ECF No. 1 at
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1.) Defendant filed an answer to the complaint in the Circuit Court of Monongalia County on
August 19, 2015.
(Id. at 13–22.)
On August 28, 2015, that court set a status/scheduling
conference for December 10, 2015. (Id. at 23.) No further proceedings in this action have taken
place before the state court. (ECF No. 1 at 1–2.)
On September 17, 2015, Defendant filed a notice of removal in this Court. (ECF No. 1.)
That notice is clearly captioned “Northern District of West Virginia Clarksburg Division,” and
Defendant argues that it intended to file the notice in the Northern District. (ECF No. 7 at 1.)
However, according to Defendant, “notice was inadvertently filed in the Southern District of West
Virginia.” (Id.) Defendant now seeks to transfer the case to the Northern District, pursuant to
28 U.S.C. § 1406. Plaintiff does not oppose this motion.
II.
Discussion
Ordinarily, the issue of proper venue in federal court is governed by the general venue
statute, 28 U.S.C. § 1391. However, in cases involving removal from state to federal court, the
general venue statute “has no application.” Polizzi v. Cowles Magazine, Inc., 345 U.S. 663, 665
(1953). Instead, venue is determined with reference to the general removal statute, 28 U.S.C. §
1441(a). See, e.g., Smith v. JP Morgan Chase Bank, N.A., 727 F. Supp. 2d 476, 479 (S.D. W. Va.
2010) (“It is a long-standing rule of federal civil procedure that when a case is removed to federal
court, the general removal statute governs venue.”). That statute provides that:
[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.
28 U.S.C. § 1441(a) (emphasis added). Based on the terms of the statute, Defendant’s removal
to this Court is improper. Removal is only proper in the district court embracing the place where
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the state action is pending, which, in the case of Monongalia County, is the Northern District of
West Virginia. See 28 U.S.C. § 129(a).
However, a procedural defect in the manner of removal does not, by itself, deprive a court
of subject matter jurisdiction over a case and mandate remand to state court. See Ellenburg v.
Spartan Motors Chassis, Inc., 519 F.3d 192, 198 (4th Cir. 2008) (distinguishing between
challenges to removal based on jurisdictional defects, which a court is entitled to dismiss sua
sponte, and those based on procedural defects to removal procedure, which are “nonjurisdictional” and can only be addressed upon timely motions of the parties); S.W.S. Erectors,
Inc. v. Imfax, Inc., 72 F.3d 489, 493 n.3 (5th Cir. 1996) (“Error in the venue of a removed action
does not deprive the district court of subject matter jurisdiction requiring remand of the case”
(citing RTC v. Sonny’s Old Land Corp., 937 F.2d 128, 130 (5th Cir. 1991)). 28 U.S.C. § 1447(c)
imposes “a 30–day limit on the time in which a plaintiff may move a federal court to remand a
case based on a procedural defect in removal.” Ravens Metal Products, Inc. v. Wilson, 816 F.
Supp. 427, 428 (S.D. W. Va. 1993). Accordingly, procedural defects will only form the basis for
remand when asserted in a timely motion by a party challenging the court’s jurisdiction. See
Ellenburg, 519 F.3d at 197 (“Because § 1447(c) provides that a remand based on a defect other
than subject matter jurisdiction must be effected by granting a timely filed motion, an order
granting an untimely filed motion or entered without a motion at all does not fall within the scope
of § 1447(c) . . . .”).
Here, the plaintiffs do not make any challenge to the manner of removal and so any
procedural defect not challenging the Court’s subject matter jurisdiction is waived. 1
See
Defendant admits that its notice of removal was not filed within thirty days of receipt of Plaintiff’s state court
complaint, as required by 28 U.S.C. § 1446(b)(1). (ECF No. 1 at 5.) In that notice of removal, Defendant argues
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Ellenburg, 519 F.3d at 196; Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 378
(N.D. W. Va. 2011). Further, plaintiffs do not dispute that the district court has original diversity
jurisdiction over this action, pursuant to 28 U.S.C. § 1332(a)(1), as it presents claims between
citizens of different states and the amount in controversy exceeds $75,000.2
Several courts addressing the issue have determined that improper removal to an incorrect
district or division is a procedural defect. See S.W.S. Erectors, 72 F.3d at 493 n.3 (“When a case
is removed to the wrong district, the mistake does not require remand and the interest of justice
requires that the action be transferred to the district court of proper venue” (citing Kreimerman v.
Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 644–45 (5th Cir. 1994)); Keeth v. State Farm Fire and
Cas. Co., No. 10-13219, 2011 WL 479903, at *2 (E.D. Mich. Feb. 7, 2011) (“Removal to the
improper district, where a federal court otherwise has the jurisdictional power to hear the case,
presents a procedural (as opposed to jurisdictional) defect curable by transfer to the proper venue);
Mortensen v. Wheel Horse Products, Inc., 772 F. Supp. 85, 89 (N.D.N.Y. 1991) (“[T]he fact that
the removal was effected to this district court rather than to the district court embracing the place
that its removal was nonetheless timely. (Id.) However, this Court need not address the issue of timely removal for
purposes of the current transfer motion. Even assuming arguendo that Defendant’s notice of removal was not timely,
failure to abide by this thirty day time limit is a procedural defect that Plaintiffs waived when they didn’t raise it within
thirty days of Defendant’s filing of a notice of removal. See Sherman v. Sigma Alpha Mu Fraternity, 128 F. Supp.
2d 842, 846 (D. Md. 2001).
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Plaintiff’s state court complaint does not allege a specific amount in controversy, but seeks several measures of
damages, including: (1) actual damages or two hundred dollars against the defendant, whichever is greater, for each
violation of the WVCCPA; (2) in addition to actual damages, statutory damages for each WVCCPA violation; (3)
damages for emotional and mental distress, loss of time, aggravation, anxiety, annoyance, and inconvenience; (4)
consequential and incidental damages; (5) punitive damages; and (6) costs and reasonable attorney’s fees. (ECF No.
1-1 at 5–6.) In its notice of removal, Defendant submitted an affidavit indicating that Defendant had made 16 calls
to Plaintiffs after March 16, 2015, the date Plaintiffs allege they notified Defendant of their representation by counsel.
(ECF No. 1-1 at 2.) Although the plaintiffs do not challenge the amount in controversy or seek remand before this
Court, the Court does note a recent West Virginia district court case in which a court held, under the same statutory
provision and number of calls as are at issue in this case, that the amount in controversy requirement was satisfied by
the plaintiff’s prayer for statutory damages alone, without reference to other damages measures. See Kelley v. Sallie
Mae, Inc., Civil Action No. 5:14cv138, 2015 WL 1650080 at *5 (N.D. W. Va. Apr. 14, 2015) (Stamp, J.).
Accordingly, the Court does not find reason to question its subject matter jurisdiction over the present action.
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where the action was pending as required by §§ 1441(a) and 1446(a) is ‘more akin to an improper
venue situation.’” (quoting Cook v. Shell Chemical Co., 730 F. Supp. 1381, 1382 (M.D. La. 1990)).
As the above-cited cases indicate, one procedure courts have utilized when faced with
removal to an improper district is transfer based on improper venue. 28 U.S.C. § 1406(a) allows
a district court “in which is filed a case laying venue in the wrong division or district” to, in the
interest of justice, “transfer such case to any district or division in which it could have been
brought.” Because venue in removed cases is governed by the removal statute, as noted above, §
1406 “is not directly applicable to a case improperly removed.” Keeth, 2011 WL 479903, at *2.
Nonetheless, because the defect created by an improper removal is “akin to an improper venue
situation,” Cook, 730 F. Supp. at 1382, courts have found it appropriate to consider motions to
transfer based on improper removal to the wrong district under § 1406. See Mortensen, 772 F.
Supp. at 90 (noting that “in addition to cases originally filed in federal court, ‘removed cases
meeting the federal standards of § 1406(a) or § 1404(a) may also be transferred’” (quoting Bentz
v. Recile, 778 F.2d 1026, 1028 (5th Cir. 1985)). As one district court recently addressing this
situation noted, “[t]hough § 1406(a) is not directly applicable to a case improperly removed—as
opposed to filed—in a district court, its tenets apply by analogy with equal force.” Keeth, 2011
WL 479903 at *2.
This Court is persuaded by the reasoning in the cited cases that § 1406(a) is the appropriate
vehicle to transfer the present case to the district in which it properly belongs.
Venue is
appropriate in the Northern District of West Virginia under the terms of the removal statute, and
such a disposition would certainly further the interests of justice. The defendant’s submissions in
this case make clear that its intention was to file a notice of removal in the Northern District and
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that the filing before this Court was inadvertent (and inexplicable). For these reasons, the
situation presented in this case contrasts starkly with that facing the court in Addison v. North
Carolina Dep’t. of Crime and Pub. Safety, 851 F. Supp. 214 (M.D.N.C. 1994), a district court case
from within the Fourth Circuit facing an incorrect district of removal issue and deciding against
transfer.
In that case, the defendants intentionally removed the state court action to an improper
federal district court not embracing the county of the state court action based on their assertion that
the plaintiff was a resident of that district, and thus transfer to their chosen district would have
ultimately been appropriate. Id. at 216, 218. In its disposition, the court granted the plaintiff’s
remand motion, and rejected the defendants’ argument in favor of transfer to the proper removal
district, primarily because “[a] party who deliberately removes an action to the wrong district court
has acted improvidently and outside of the removal statute, thereby violating removal procedure.”
Id. at 218. The Court was especially concerned about the defendants’ blatant circumvention of
appropriate removal procedure, expressing apprehension that not remanding the case would
“encourage litigants to forum shop in order to gain an advantage over plaintiff and disregard
plaintiff’s choice of forum.” Id. Further, it was careful to note that the plaintiff in the case
“brought this removal procedure defect to the Court’s attention within the required thirty day limit
of 28 U.S.C. § 1447(c) and, therefore, has not waived it,” id., and expressly reserved the question
of whether it would retain jurisdiction to transfer a case where removal to the improper district
was “innocent.” Id. at n.3.
Thus, the Addison court did not lay down any bright-line rule against transfer in the case
of improper removal to the incorrect district. Rather, it made a case-specific determination based
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on the “peculiar facts of the present case.” Id. at 216. Those peculiar facts are not present in this
case. The concerns about forum shopping and intentional disregard for proper removal procedure
are eliminated because the removal to this district was the result of a mistake, as evidenced by the
case styling in the document noticing that removal. (ECF No. 1.) Moreover, unlike in Addison,
plaintiffs here have not objected to the procedural defect or made a motion for remand, so remand
on the Court’s own motion would be inappropriate. Instead, on the facts of this case and in the
interest of justice, transfer to the Northern District of West Virginia pursuant to § 1406(a) is the
proper disposition. Although removal to this Court is improper based on a procedural defect in
the defendant’s filing of its notice of removal, there is no dispute as to this Court’s original
diversity subject matter jurisdiction over the case. Moreover, venue is proper in the Northern
District, under both the removal and the general venue statutes, and improper removal to this Court
is the clear result of inadvertence rather than intentional behavior or forum shopping. It is
undisputed that this case should be before the Northern District. In such circumstances, common
sense and the interest of justice dictates that this Court cure the procedural defect that caused the
action to be filed in this Court and transfer the case to the district “in which it could have been
brought.” 28 U.S.C. § 1406(a).
III.
Conclusion
For the reasons discussed herein, Defendant’s Amended Motion to Transfer is
GRANTED. The Court ORDERS that the case be TRANSFERRED to the United States
District Court for the Northern District of West Virginia, Clarksburg Division.
IT IS SO ORDERED.
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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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November 19, 2015
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