Hinkle v. Matthews et al
Filing
24
MEMORANDUM OPINION AND ORDER granting the parties' 19 AGREED MOTION for miscellaneous relief; directing that the plaintiff is authorized to file the Amended Class Action Complaint in the form approved by the state circuit court, as contain ed in Exhibit B to Safe-Guard's 1 Notice of Removal; the plaintiff is directed to file any response to Safe-Guard's 12 motion for partial dismissal no later than 14 days after the entry of this order; terminating as moot plaintiff' s 10 MOTION to Remand and Safe-Guard's 15 MOTION Requesting Entry of an Order Deeming Plaintiff's Amended Class Action Complaint to be Filed. Signed by Judge John T. Copenhaver, Jr. on 12/21/2015. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROBIN L. HINKLE,
Plaintiff,
v.
Civil Action No. 2:15-13856
CASEY JOE MATTHEWS, TIMOTHY MAY,
CONNIE MAY, SANTANDER CONSUMER,
USA, INC., SAFE-GUARD PRODUCTS
INTERNATIONAL, LLC, and JOHNNY
HINKLE,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the parties’ agreed motion
for miscellaneous relief, filed December 7, 2015.1
I.
In this action, originally filed July 20, 2012 in the
Circuit Court of Mingo County, plaintiff asserts claims stemming
from her purchase of a “Safe-Guard GAP Addendum” covering her
automobile loan.
The GAP Addendum provided for the waiver of
outstanding debt on the automobile loan under certain
circumstances following an automobile accident.
1
Plaintiff’s
The clerk is directed to terminate the Plaintiff’s Motion to
Remand (Docket No. 10) and Safe-Guard’s Motion Requesting Entry
of an Order Deeming Plaintiff’s Amended Class Action Complaint
to Be Filed (Docket No. 15) as moot in light of this order.
initial complaint asserts claims against defendants for breach
of contract, violation of West Virginia’s Unfair Trade Practices
Act, W. Va. Code § 33-11-1 et seq., common law and statutory bad
faith, and violations of the West Virginia Consumer Protection
Act, W. Va. Code § 46A-6-101 et seq.
On June 1, 2015, plaintiff sought leave to amend her
complaint.
Plaintiff’s proposed amended complaint, filed with
her motion to amend, asserts class action claims on behalf of a
class of consumers who purchased a GAP Addendum and alleges
violations of West Virginia’s insurance licensing requirements,
W. Va. Code § 33-3-1.
On September 10, 2015, a hearing was held
before Judge Miki Thompson in the circuit court.
Judge Thompson
stated that she was “going to allow the amendment.”
of Hearing at 6-24.
Transcript
On that basis, Safe-Guard removed the
action on October 9, 2015 citing this court’s jurisdiction under
the Class Action Fairness Act, 28 U.S.C. §§ 1332(d) and 1453
(“CAFA”).
Explaining its decision to remove the case prior to
the entry of a written order in the state court, Safe-Guard
states in its notice of removal:
At the time of the filing of this Notice of
Removal, an order had not been entered which
memorialized the findings of the September 10, 2015
hearing. Consequently, Safe-Guard has not been served
with Plaintiff’s Second Amended Complaint asserting
2
class allegations. However, in an effort to be overly
cautious concerning the timing of the filing of the
Notice of Removal, Safe-Guard has proceeded to file
this Notice of Removal within thirty (30) days of the
hearing at which Judge Thompson stated that she would
permit the class allegations to be filed with the
Circuit Court.
Notice of Removal at 4, fn. 3.
The parties’ motion for miscellaneous relief was filed
after the plaintiff moved to remand on the basis that the
operative complaint, having not yet been formally amended, does
not support subject matter jurisdiction in this court.2
The
parties appeared for a conference on December 16, 2015, at which
counsel discussed their requested relief with the court.
The
parties request an order allowing the filing of the plaintiff’s
amended class action complaint in this court and setting a new
date for plaintiff’s response to defendant Safe-Guard’s motion
for partial dismissal of plaintiff’s claims.
They argue that
remand at this juncture is unnecessary because the state court
assented to the plaintiff’s motion to amend her complaint on the
record and the parties agree the amended complaint will provide
a basis for federal jurisdiction.
2
Plaintiff subsequently withdrew her motion to remand, with
prejudice, on December 18, 2015. See Notice of Withdrawal of
Motion to Remand (Docket No. 23).
3
II.
The procedure for removal of class actions is governed
by 28 U.S.C. § 1453, which provides, in relevant part:
A class action may be removed to a district court
of the United States in accordance with section 1446
(except that the 1-year limitation under section
1446(c)(1) shall not apply), without regard to whether
any defendant is a citizen of the State in which the
action is brought, except that such action may be
removed by any defendant without the consent of all
defendants.
28 U.S.C. § 1453(b).
(3)
Section 1446, in turn, states:
Except as provided in subsection (c), if the case
stated by the initial pleading is not removable,
a notice of removal may be filed within 30 days
after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may
first be ascertained that the case is one which
is or has become removable.
28 U.S.C. § 1446(b)(3).
Subject matter jurisdiction over a class action
removed in this manner is granted by 28 U.S.C. § 1332(d), which
provides for original jurisdiction in this court over class
actions in which over $5,000,000 is in controversy and minimal
diversity exists between any putative class member and any
defendant.
It is well-settled that “[t]he burden of
establishing federal jurisdiction is placed upon the party
seeking removal.”
Mulcahey v. Columbia Organic Chemicals Co.,
Inc., 29 F.3d 148 (4th Cir. 1994).
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III.
Assuming without deciding that removal was not proper
in this case, because a written order had not yet been entered
allowing the plaintiff’s motion to amend her complaint, the
court concludes that it should grant the relief requested by the
parties to cure any potential defect.
The court recognizes the
difficult position the defendant was placed in by the circuit
court’s oral indication that it would grant the motion to amend.
While Safe-Guard could have waited to remove until the circuit
judge entered a written order, to do so would have invited the
argument that Safe-Guard had waived the right to remove under
Section 1446(b)(3) by waiting more than 30 days to file its
notice of removal after it ascertained that the case would
become removable under CAFA.
In a rather similar case, the Fourth Circuit held
that a district court can exercise subject matter jurisdiction
over a removed action after the plaintiff files an amended class
action complaint satisfying the jurisdictional requirements of
Section 1332(d).
See Moffitt v. Residential Funding Co., LLC,
604 F.3d 156, 159-60 (4th Cir. 2010).
In Moffitt, the defendant
removed after receiving a letter and draft complaints alleging
class action claims which would give rise to federal
jurisdiction.
The plaintiff filed the amended complaint in
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federal court, but subsequently moved to remand.
The Fourth
Circuit explained:
Here, it would be a waste of judicial resources to
remand these cases on the basis of an antecedent
violation of the removal statute now that jurisdiction
has been established. Were we to do so, defendants
would almost certainly remove the cases back to
federal court in light of plaintiffs’ amended class
action complaints. Plaintiffs have expressed no intent
to abandon their class action complaints, and
defendants would thus be able to file renewed notices
of removal once the cases landed back in state court.
Moreover, defendants would not have to worry about the
normal one-year limitation on removing diversity cases
since it does not apply to class actions. See 28
U.S.C. § 1453(b). Thus, these cases would likely end
up in federal court regardless of whether we ordered
remands at this juncture. Like the district court, we
think that considerations of judicial economy weigh
against requiring such a pointless exercise and in
favor of allowing this case to go forward in a federal
forum where jurisdiction has been perfected.
604 F.3d at 160 (footnote omitted).
For the same reasons, it would be a “pointless
exercise,” wasting both judicial resources and the party’s time,
to remand this matter to the circuit court.
Once the circuit
judge entered a written order allowing the plaintiff’s motion to
amend her complaint, the defendant would have grounds to file a
renewed notice of removal.
Based on the plaintiff’s class
action claims and the facts in the notice of removal, the
jurisdictional requirements of CAFA as to diversity and the
amount in controversy are satisfied.
Inasmuch as the
inevitability of subject matter jurisdiction in this court has
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been established, the court grants the parties’ motion for
miscellaneous relief to the following extent:
1.
It is ORDERED that the plaintiff is
authorized to file the Amended Class Action
Complaint in the form approved by the state
circuit court, as contained in Exhibit B to SafeGuard’s Notice of Removal (Docket No. 1).
2.
The plaintiff is directed to file any
response to Safe-Guard’s motion for partial
dismissal no later than 14 days after the entry
of this order.
The Clerk is requested to transmit a copy of this
order to all counsel of record and to any unrepresented parties.
DATED:
December 21, 2015
Judge John T. Copenhaver, Jr.
United States District Judge
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