Bourdeau, Stacey v. Credit Acceptance Corporation et al

Filing 23

ORDER granting 7 Motion to Remand to State Court. Plaintiff's request for attorney fees and costs under 28 U.S.C. § 1447(c) is due 12/27/2016. Defendants' response is due 1/10/2017. The clerk is directed to remand this case to the Circuit Court for Douglas County, Wisconsin. Signed by District Judge William M. Conley on 12/13/2016. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STACY BOURDEAU,
Plaintiff,

OPINION AND ORDER

v.
16-cv-397-wmc
CREDIT ACCEPTANCE CORPORATION,
and DAUBERT LAW FIRM, LLC,
Defendants.
Plaintiff Stacy Bourdeau filed this civil action in state court, asserting a plethora of
claims, all of which rest on the allegation that defendants Credit Acceptance Corporation
and its law firm garnished plaintiff’s wages without filing a transcript of judgment in
Minnesota in violation of Wis. Stat. § 806.24. Based on this omission, plaintiff claims
defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., the Wisconsin Consumer Act (“WCA”), Wis. Stat. § 421 et seq., and plaintiff’s due
process rights. Plaintiff also asserts claims for abuse of process under Wisconsin common
law and for conversion under both Wisconsin and Minnesota common law.

Finally,

plaintiff seeks declaratory judgment and injunctive relief to address violations of the
Commerce Clause and the Full Faith and Credit Clause of the United States
Constitution. (Compl. (dkt. #1-2) ¶¶ 40-67.)
After defendants removed the lawsuit to federal court, plaintiff filed a motion for
remand (dkt. #7), which the court will now grant for reasons set forth below. Because
there are good grounds to award plaintiff her fees and costs for having to bring this
motion, the court will also set a briefing schedule to determine both.

BACKGROUND1
This is not the first time Bourdeau has filed suit against these same defendants
challenging the same underlying action. Indeed, this court previously dismissed a similar
complaint filed by Bourdeau as barred by the Rooker-Feldman doctrine.2 Bourdeau v. Credit
Acceptance Corp., No. 14-cv-144 (W.D. Wis. Mar. 12, 2015 (dkt. #28); see also Kobilka v.
Cottonwood Financial Wisconsin, LLC, et al., 14-cv-268 (W.D. Wis. Mar. 12, 2015) (dkt.
#16) (companion case explaining the reasoning for dismissal in greater detail).
Following this court’s ruling in Case No. 14-cv-144, Bourdeau filed this new
complaint in state court asserting the same claims as before and adding two new claims
for declaratory judgment and injunctive relief for violations of the Commerce Clause and
Full Faith and Credit Clause. In an odd reversal of roles, the defendants removed her
claims supposedly based on this court’s federal question jurisdiction, 28 U.S.C. § 1331.
Plaintiff promptly moved to remand to state court under the Rooker-Feldman doctrine.
(Dkt. #10.) In response, defendants argue that because the newly-added claims are not
“inextricably intertwined” with defendants’ state court garnishment action, the court has
subject matter jurisdiction over at least those claims.

Rather than set forth the allegations again, the court simply directs the parties to the allegations
described in the court’s opinion and order in the 2014 case. What follows in text is a brief
background for context.
1

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923).
2

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OPINION
Critical to deciding the present motion, plaintiff’s claims are again premised on
her theory that defendants failed to file a transcript of judgment in Minnesota
purportedly in violation of Wis. Stat. § 806.24 before garnishing her wages. (Compl.
(dkt. #1-2) ¶¶ 47-48.)

Still, defendants press in their opposition to the motion to

remand that her claims under the so-called “Dormant” Commerce and the Full Faith and
Credit Clauses of the Constitution challenge the defendants’ actions against “any
Wisconsin resident that are earned and payable outside of the state,” and as such, are
“for alleged actions that are not related to the Judgment against her, but that were
supposedly incurred by other Wisconsin residents who may have had out-of-state wages
garnished by Defendants.” (Defs.’ Opp’n (dkt. #18) 5-6.)
The court is not convinced. Even if these new claims extend beyond plaintiff and
touch on defendants’ garnishment actions against other individuals, the claims
nonetheless would require this court to review the state court’s garnishment of Bourdeau’s
wages.

See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)

(explaining that Rooker-Feldman doctrine applies generally to “cases brought by state-court
losers complaining of injuries caused by state court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of those
judgments”); Harold v. Steele, 773 F.3d 884, 885 (7th Cir. 2014) (“the state court
judgment is the source of the injury of which plaintiffs complain in federal court,”
challenge to state court garnishment order not reviewable for alleged violation of federal
Fair Debt Collection Practices Act as barred by Rooker-Feldman). Indeed, in order for
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Bourdeau to have standing to present her challenge under the Dormant Clause and Full
Faith and Credit Clause, the claims necessarily must concern her injury.
For all of the reasons previously explained by this court in prior orders, therefore,
Bourdeau’s avenue of relief lies in state court, not in a federal court action challenging
defendants’ request for a garnishment notice or the state court’s action of issuing the
requisite forms listing an out-of-state employer. Because the court lacks subject matter
jurisdiction over this action, it must grant plaintiff’s motion to remand.
In addition to seeking remand, plaintiff requests fees and costs incurred in having
to seek remand. (Pl.’s Mot. (dkt. #8) 4.) Section 1447(c) allows an award of “just costs
and any actual expenses, including attorney fees, incurred, as a result of the removal.” 28
U.S.C. § 1447(c) (emphasis added). A district court may award fees and costs under this
provision, however, only where the removing party lacked an objectively reasonable basis
for seeking removal. See Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). In
Lott v. Pfizer, Inc., 492 F.3d 789 (7th Cir. 2007), the Seventh Circuit elaborated on this
standard:
As a general rule, if, at the time the defendant filed his notice
in federal court, clearly established law demonstrated that he
had no basis for removal, then a district court should award a
plaintiff his attorney’s fees. By contrast, if clearly established
law did not foreclose a defendant’s basis for removal, then a
district court should not award attorney’s fees.
Id. at 793.
In their opposition, defendants contend that the removal of this action was not
contrary to clearly established law, perversely citing Rooker-Feldman under the
misapprehension that this court could exercise subject matter jurisdiction long enough to
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deice the two new claims and then dismiss the remainder under Rooker-Feldman.
Regardless, defendants fail to cite any case law in support of their argument that a claim
seeking relief beyond the individual plaintiff somehow brings her claim outside of the
Rooker-Feldman doctrine. While application of the doctrine may be nuanced under certain
circumstances, the limits of federal court jurisdiction under the doctrine are clearly
established and were at the time defendants removed this case. As such, the court agrees
with plaintiff that an award of attorneys’ fees and costs under § 1447(c) is warranted.
Because plaintiff failed to demand a specific sum or submit proof of her actual fees
and costs in bringing the motion to remand, plaintiff may have until December 27, 2016,
to file proof of her expenses, including attorney’s expenses, actually incurred as a result of
removal. Defendants may have until January 10, 2017, to respond, but if they challenge
either the hours spent or the hourly rate claimed, they must attach their actual invoice(s)
for the same work, as well as any underlying records supporting the invoice(s) maintained
by the law firm.

ORDER
IT IS ORDERED that:
1) Plaintiff Stacey Bourdeau’s motion to remand (dkt. #7) is GRANTED.
2) Plaintiff’s request for attorney’s fees and costs under 28 U.S.C. § 1447(c) is
due on or before December 27, 2016; defendants’ response, if any, is due
January 10, 2107.

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3) The clerk of court is directed to remand this case to the Circuit Court for
Douglas County, Wisconsin.
Entered this 13th day of December, 2016.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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