Weber v. Wells Fargo Bank, N.A. et al
Filing
19
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND 8 . Signed by District Judge Thomas S. Kleeh on 9/10/2020. (tlg)
Case 3:20-cv-00048-TSK Document 19 Filed 09/10/20 Page 1 of 8 PageID #: 635
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JANE WEBER,
Plaintiff,
v.
Civ. Action No. 3:20-CV-48
(Kleeh)
WELLS FARGO BANK, N.A.;
WELLS FARGO HOME EQUITY
ASSET-BACKED SECURITIES 2004-2 TRUST,
HOME EQUITY ASSET-BACKED CERTIFICATES,
SERIES 2004-2; and HSBC BANK USA,
NATIONAL ASSOCIATION,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
Pending before the Court is a Motion to Remand. For the
reasons discussed herein, the Motion is denied.
I.
PROCEDURAL HISTORY
On March 16, 2020, the Defendants, Wells Fargo Bank, N.A.
(“Wells Fargo”), Wells Fargo Home Equity Asset-Backed Securities
2004-2 Trust, Home Equity Asset-Backed Certificates, Series 20042 (the “Trust”), and HSBC Bank USA, National Association (“HSBC”)
(collectively, “Defendants”), removed this action from the Circuit
Court of Berkeley County, West Virginia. On March 19, 2020, United
States District Judge Gina M. Groh transferred the case to United
States
District
Judge
Thomas
S.
Kleeh.
On
March
23,
2020,
Defendants filed a Motion to Dismiss. ECF No. 6. Plaintiff then
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WEBER V. WELLS FARGO ET AL.
3:20-CV-48
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
filed a Motion to Remand. ECF No. 8. The Court has stayed all
deadlines in this case until the resolution of the two motions.
The Motion to Remand is fully briefed and is the subject of this
Memorandum Opinion and Order.
II.
GOVERNING LAW
When an action is removed from state court, the district court
must determine whether it has original jurisdiction over the
plaintiff’s claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S.
375,
377
jurisdiction.
(1994).
They
“Federal
possess
courts
only
are
that
courts
power
of
limited
authorized
by
Constitution and statute, which is not to be expanded by judicial
decree[.]” Id. (citations omitted). “Because removal jurisdiction
raises significant federalism concerns, we must strictly construe
removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29
F.3d 148, 151 (4th Cir. 1994) (citation omitted).
A defendant must file a notice of removal within 30 days of
receipt of the initial pleading. See 28 U.S.C. § 1446(b)(1).
Failure to comply with this requirement is “grounds for immediately
remanding a removed case to state court.” FHC Options v. Sec. Life
Ins.
Co.
of
Am.,
993
F.
Supp.
378,
380
(E.D.
Va.
1998).
A
defendant’s time period within which it must remove the case does
not run until a defendant is properly served or waives service.
2
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WEBER V. WELLS FARGO ET AL.
3:20-CV-48
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
Murphy Bros., Inc. v. Michetti Pipe Stringing, 526 U.S. 344, 350
(1999). Defendants can consent to the removal of a later-served
defendant even if their original 30-day period has expired. See 28
U.S.C.
§ 1446(b)(2)(C)
(“[A]ny
earlier
served
defendant
may
consent to the removal even though that earlier-served defendant
did not previously initiate or consent to removal.”).
III. FACTUAL BACKGROUND
Plaintiff brings claims of breach of contract and negligence.
She
also
alleges
that
Defendants
violated
the
Real
Estate
Settlement and Procedures Act, the West Virginia Consumer Credit
and Protection Act, and the Fair Debt Collection Practices Act.
However, the facts pertaining to the Motion to Remand relate to
the timing of Defendants’ removal, not the substantive allegations
in the Complaint.
Plaintiff filed the Complaint in the Circuit Court of Berkeley
County,
West
Virginia,
on
December
19,
2019.
According
to
Defendants’ counsel, they called Plaintiff’s counsel on January
29, 2020, to inquire about service. Plaintiff’s counsel stated
that he had no information but would provide an update later.
On February 11, 2020, service was perfected as to Wells
3
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WEBER V. WELLS FARGO ET AL.
3:20-CV-48
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
Fargo. 1 Counsel for Defendants, having no knowledge of this, waived
service on February 13, 2020, for all three defendants. A copy of
the waiver was emailed to Plaintiff’s counsel on the same day, and
Plaintiff’s counsel responded, “Received, thank you.” Plaintiff’s
counsel never indicated to Defendants’ counsel that service had
already been perfected as to Wells Fargo. Nor did Plaintiff’s
counsel reject, object to, or otherwise raise a concern with the
remaining Defendants’ waiver of service. Defendants filed a notice
of removal on March 16, 2020, which was within 30 days of the
waiver of service but not within 30 days of service of Wells Fargo.
To date, Plaintiff has not served either the Trust or HSBC.
IV.
DISCUSSION
Plaintiff argues that Defendants failed to timely remove this
action. She argues that because Defendant received service on
February 11, 2020 (as to Wells Fargo), removal was required on or
before
March
12,
2020.
Plaintiff
believes
that
Defendants
attempted to create a new removal deadline by waiving service for
the remaining defendants. She also argues that because Defendants’
removal
was
objectively
unreasonable,
the
Court
should
award
While the parties seem to agree that service on Wells Fargo was
perfected on February 11, 2020, the docket indicates that service
might have occurred on February 7, 2020. See ECF No. 1-1 at 1.
This discrepancy is ultimately irrelevant to the Court’s analysis
and conclusion.
1
4
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WEBER V. WELLS FARGO ET AL.
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MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
Plaintiff attorneys’ fees.
In response, Defendants argue that the motion should be denied
because the removal was timely. They point out that the notice of
removal was filed within 30 days of service upon the “last-served
defendant,” which was established via waiver, and was joined by
all three defendants. Plaintiff replies that the “last-served
defendant” rule is inapplicable because the Trust and HSBC were
never served. She argues that Defendants have denied her of her
“free choice” not to serve them. The Court disagrees.
To date, HSBC and the Trust have not been served. After
becoming aware of the lawsuit against them, they chose to waive
service rather than wait for it. While there is no rule in West
Virginia that permits a unilateral waiver of service, counsel
representing multiple defendants in an action can certainly accept
service on behalf of all of them. Counsel’s decision to waive
rather than accept is a distinction without a difference and a
matter of semantics. The Court finds that the 30-day removal
deadline began on the day HSBC and the Trust waived service, not
on the date Wells Fargo was served. See 28 U.S.C. § 1446(b)(2)(C).
Plaintiff’s argument that Defendants denied her of her “free
choice” not to serve the remaining defendants is unpersuasive. Not
only are Plaintiff’s cited cases not binding on this Court, but
they do not directly apply. For example, in Lesane v. Hawaiian
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WEBER V. WELLS FARGO ET AL.
3:20-CV-48
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
Airlines, there was no discussion of a plaintiff’s free choice not
to serve a defendant. The court held that the plaintiff needed to
file the complaint within 90 days of receipt of right to sue
letters but was not required to serve the defendant within those
90 days. 75 F. Supp. 2d 1113, 1120 (D. Haw. 1999). While the court
stated that “[t]he statute of limitations will not be tolled merely
by filing a complaint if the plaintiff has no intent to serve
process,” there was no discussion of what would have happened if
a defendant had waived service.
In Batzel v. Smith, the court discussed a case that was
dismissed for failure to prosecute after the plaintiff failed to
serve the defendant. 372 F. Supp. 2d 546, 555 (C.D. Cal. 2005).
The court described this as “holding Plaintiff to her free choice
not to serve Defendant . . . despite being warned that such failure
would result in a dismissal” and found that this was not a denial
of due process. Id. Again, there was no discussion of waiver of
service; Batzel merely discusses failure to serve in the context
of res judicata and is inapplicable to this case. Finally, when
the court in Ferrell v. Forrester said that “[a]n action is not
commenced under Rule 3(a) if ‘it was not filed with the bona fide
intention of having it immediately served,’” it was discussing
Alabama law. No. 3:12-CV-844-WKW, 2018 WL 812424, at *3 (M.D. Ala.
Mar. 5, 2013).
6
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WEBER V. WELLS FARGO ET AL.
3:20-CV-48
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
Here, the waiver of service sent to Plaintiff by Defendants
via email clearly stated that “Defendants Response to the Complaint
shall be filed Thirty (30) days from February 13, 2020; making
Defendants Response due March 16, 2020.” ECF No. 1-2 at ¶ 4.
Plaintiff did not object to Defendants’ email. To the contrary,
Plaintiff responded, “Received, thank you.”
The policy behind the federal rules of service is to give
“all defendants . . . notice of the commencement of the action and
to eliminate unnecessary technicality in connection with service
of process.” 4 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1061 (4th ed. 2020). While it is true
that the West Virginia Rules of Civil Procedure put the onus on
the plaintiff to effect service, the service requirement is not
designed to protect the plaintiff. Further, the Federal Rules of
Civil Procedure place a duty on the defendant to “avoid unnecessary
expenses of serving the summons” by waiving service whenever
possible. Fed. R. Civ. P. 4(d)(1). While the West Virginia Rules
of Civil Procedure lack such specific language about waiver of
service, the same logic applies.
Plaintiff argues, in any event, that privity exists between
the parties, and Defendants should be estopped from claiming the
benefit of the last-served defendant rule. The main case cited by
Plaintiff,
Transport
Indemnity
Co.
7
v.
Financial
Trust
Co.,
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WEBER V. WELLS FARGO ET AL.
3:20-CV-48
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [ECF NO. 8]
involved a defendant that was a subsidiary of another defendant.
339 F. Supp. 405 (C.D. Cal. 1972). That is not the case here. Other
cases cited by Plaintiff on the privity issue do not relate to
service but, rather, to res judicata. 2 Having nothing on point
before it, and unable to find anything on its own, the Court cannot
find that Wells Fargo, HSBC, and the Trust have privity to the
extent that service upon “each of the parties” 3 is no longer
required.
V.
CONCLUSION
For the reasons discussed above, Plaintiff’s Motion to Remand
is DENIED [ECF No. 8]. Because the removal was not unreasonable,
the request for an award of attorney’s fees is also DENIED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: September 10, 2020
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE
See Whitmore v. Bank of N.Y. Mellon, No. 17-1265, 2017 WL 2119957
(E.D. La. May 16, 2017); Everhart v. Citibank, N.A., No. H-132752, 2015 WL 12805172 (S.D. Tex. Mar. 30, 2015); R.G. Fin. Corp.
v. Verara-Nunez, 446 F.3d 178 (1st Cir. 2006).
3 See W. Va. R. Civ. P. 5 (“Except as otherwise provided . . . every
order required by its terms to be served . . . shall be served
upon each of the parties.”).
2
8
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