Susan Lines v. Bank of America, National Association et al, No. 2:2015cv06156 - Document 18 (C.D. Cal. 2015)
Court Description: ORDER GRANTING PLAINTIFFS MOTION TO REMAND 10 AND VACATING AS MOOT DEFENDANTS MOTION TO DISMISS 8 by Judge Dean D. Pregerson: Case remanded to State Court Case Remanded to Los Angeles Superior Court, No.BC587862. MD JS-6. Case Terminated. (lc). Modified on 9/29/2015 (lc).
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Susan Lines v. Bank of America, National Association et al Doc. 18 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SUSAN LINES, 12 Plaintiff, 13 14 15 16 v. BANK OF AMERICA, NATIONAL ASSOCIATION, FIA CARD SERVICES, N.A., Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-06156 DDP (PJWx) ORDER GRANTING PLAINTIFF’S MOTION TO REMAND AND VACATING AS MOOT DEFENDANTS’ MOTION TO DISMISS [Dkt. Nos. 10 and 8] 17 Presently before the Court are Plaintiff Susan Lines’s Motion 18 19 for Order Remanding Removed Action to State Court and Defendants’ 20 Motion to Dismiss Plaintiff’s Complaint. 21 parties’ submissions, the Court adopts the following order. 22 I. 23 Having considered the BACKGROUND Plaintiff Susan Lines (“Lines”) brought a consumer protection 24 suit against Defendants Bank of America, National Association 25 (“BOA”) and FIA Card Services, N.A. (“FIA”) in California Superior 26 Court. 27 complaint that in 1986, William Lines (Plaintiff’s former husband) 28 opened a credit card account that was eventually transferred to BOA (See Notice of Removal, Ex. 1 .) Plaintiff alleged in her Dockets.Justia.com 1 and FIA. (Id. at 4-5.) Plaintiff found that the account was 2 “being reported on her consumer credit reports” even though she had 3 never been an account holder or authorized anyone to open an 4 account in her name. 5 Defendants that she should not be responsible for any collections 6 connected to the account and that the account should not be on her 7 credit reports, but Defendants “told plaintiff that she was 8 responsible for the [account] because her name appeared on their 9 records.” (Id.) (Id. at 5.) Plaintiff tried to communicate to Plaintiff alleges that she has suffered 10 “damage to her credit rating, loss of credit, [and] loss of the 11 ability to purchase and to benefit from credit.” 12 Plaintiff filed her suit on July 13, 2015. (Id. at 6.) On August 13, 13 2015, Defendants filed a Notice of Removal to bring the case to 14 this Court. 15 on the basis of federal question jurisdiction because Plaintiff 16 alleged violations of the federal Truth in Lending Act and Fair 17 Credit Reporting Act in addition to state consumer protection laws. 18 (Id.) 19 (Dkt. No. 1, Notice of Removal.) Defendants removed On August 20, 2015, Defendants filed a Motion to Dismiss, 20 arguing that Plaintiff’s claims are variously time barred, 21 preempted, and without standing. 22 28, 2015, Plaintiff filed a Motion to Remand the case back to the 23 California Superior Court. 24 II. (Defs.’ Mot. Dismiss.) On August (Pl.’s Mot. Remand.) LEGAL STANDARD 25 A. 26 A defendant may remove a case from state court to federal Motion to Remand 27 court if the case could have originally been filed in federal 28 court. 28 U.S.C. § 1441(a). There is a “strong presumption” 2 1 against removal and the Defendant has the burden of establishing 2 that removal is proper by a preponderance of evidence. 3 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); Morrison v. Zangpo, 4 No. C-08-1945 EMC, 2008 WL 2948696, at *1 (N.D. Cal. July 28, 5 2008). 6 after receiving, “through service or otherwise, . . . a copy of the 7 initial pleading setting forth the claim for relief upon which such 8 action or proceeding is based.” 9 a “motion to remand the case on the basis of any defect other than Gaus v. A defendant has thirty days in which to remove the case 28 U.S.C. § 1446(b)(1). Likewise, 10 lack of subject matter jurisdiction must be made within 30 days 11 after the filing of the notice of removal under section 1446(a).” 12 28 U.S.C. § 1447(c). 13 B. 14 A 12(b)(6) motion to dismiss requires a court to determine the Motion to Dismiss 15 sufficiency of the plaintiff's complaint and whether it contains a 16 “short and plain statement of the claim showing that the pleader is 17 entitled to relief.” 18 12(b)(6), a court must (1) construe the complaint in the light most 19 favorable to the plaintiff, and (2) accept all well-pleaded factual 20 allegations as true, as well as all reasonable inferences to be 21 drawn from them. 22 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 23 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 24 1998). 25 Fed. R. Civ. P. 8(a)(2). Under Rule See Sprewell v. Golden State Warriors, 266 F.3d In order to survive a 12(b)(6) motion to dismiss, the 26 complaint must “contain sufficient factual matter, accepted as 27 true, to ‘state a claim to relief that is plausible on its face.’” 28 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. 3 1 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, 2 “[t]hreadbare recitals of the elements of a cause of action, 3 supported by mere conclusory statements, do not suffice.” 4 678. 5 legal theory or sufficient facts to support a cognizable legal 6 theory.” 7 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63 8 (dismissal for failure to state a claim does not require the 9 appearance, beyond a doubt, that the plaintiff can prove “no set of Id. at Dismissal is proper if the complaint “lacks a cognizable Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 10 facts” in support of its claim that would entitle it to relief). 11 complaint does not suffice “if it tenders ‘naked assertion[s]’ 12 devoid of ‘further factual enhancement.’” 13 (quoting Twombly, 550 U.S. at 556). 14 plausibility when the plaintiff pleads factual content that allows 15 the court to draw the reasonable inference that the defendant is 16 liable for the misconduct alleged.” 17 as true “legal conclusions merely because they are cast in the form 18 of factual allegations.” 19 F.3d 1136, 1139 (9th Cir. 2003). 20 III. DISCUSSION A Iqbal, 556 U.S. at 678 “A claim has facial Id. The Court need not accept Warren v. Fox Family Worldwide, Inc., 328 21 A. 22 Plaintiff has filed a Motion to Remand the case back to the Motion to Remand 23 California Superior Court. 24 of Removal was filed thirty-one days after receiving service of 25 summons and the complaint, thus making the removal untimely and 26 improper. 27 the removal was timely because Plaintiff sent an email to Defendant 28 BOA stating that Plaintiff had served Defendant FIA on July 23, She argues that Defendant BOA’s Notice (Pl.’s Mot. Remand at 7-10.) 4 Defendants respond that 1 2015, which means that filing for removal on August 13, 2015, was 2 within the thirty-day window for FIA. 3 2-3.) 4 separate legal entity because on October 1, 2014, FIA merged into 5 BOA. 6 cannot sue or be sued, much less be served with a complaint or file 7 a notice of removal. 8 9 (Defs.’ Opp’n Mot. Remand at Plaintiff responds that Defendant FIA is no longer a (Pl.’s Reply at 4-6.) Plaintiff argues that this means FIA (Id. at 4-7.) Plaintiff is correct that the thirty-day time limit of 28 U.S.C. § 1446 is strictly construed. See Roth v. CHA Hollywood 10 Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013)(“For good 11 reason, § 1446(b)(1) and (b)(3) place strict limits on a defendant 12 who is put on notice of removability by a plaintiff.”). 13 true that if BOA filed the Notice of Removal on August 13, 2015, 14 then BOA filed on the thirty-first day after receiving service of 15 the summons and complaint based on the time computation of Federal 16 Rule of Civil Procedure 6. 17 could or did file the Notice of Removal, which would be timely as 18 FIA would be a later-noticed defendant. 19 630 F.3d 952, 956 (9th Cir. 2011). 20 It is also Thus, the key question is whether FIA See Destfino v. Reiswig, In Defendants’ Motion to Dismiss, Defendants noted that 21 “[e]ffective October 1, 2014, FIA Card Services, N.A. has merged 22 with and into Bank of America, N.A.” 23 n.1.) 24 Motion to Remand this case. 25 belief that FIA was still an active party and had been served with 26 the summons and complaint “was in error.” 27 Richard Scott Lysle ¶ 3.) 28 Dismiss put Plaintiff’s counsel on notice of his error: he states (Defs.’ Mot. Dismiss at 1 After the Motion to Dismiss was filed, Plaintiff filed her As Plaintiff’s attorney explained, his (Pl.’s Reply, Decl. It seems that Defendants’ Motion to 5 1 that after he tried to serve FIA, he “ha[d] since been informed” 2 and “accept[ed] Bank of America’s representation” that FIA was 3 merged “out of existence” into BOA. 4 (See id. at ¶¶ 3-4.) Defendants’ evidence of FIA’s service is an almost entirely 5 redacted email from Plaintiff’s attorney stating that “co-defendant 6 F.I.A. Card Services, N.A. was served with Summons, Complaint and 7 other papers on July 23, 2015.” 8 Sethna Ex. A.) 9 Lysle’s email, FIA removed this action on August 13, 2015” but that (Defs.’ Opp’n, Decl. Of Judith T. Defendants’ counsel declares that “[b]ased on Mr. 10 “[t]o date, FIA has been unable to locate a copy of the Summons, 11 Complaint served by Plaintiff.” 12 receiver to which Plaintiff’s attorney sent the complaint for FIA 13 told Plaintiff’s counsel that the receiver “did not have the legal 14 capacity to accept [certified mail] on behalf of a no-longer extant 15 entity.” 16 have the legal capacity to appear as a litigant” and “does not have 17 the legal capacity to file a Notice of Removal on its own behalf.” 18 (Pl.’s Reply at 7.) 19 (Id. ¶ 5.) (Id. ¶ 3-4.) However, the Plaintiff now contends that FIA “does not Based on BOA’s representations to this Court, it appears that 20 Plaintiff is correct and that FIA is no longer a separate legal 21 entity and did not file the Notice of Removal. 22 Notice of Removal, the attorney caption states: “Attorneys for 23 Defendant Bank of America, N.A., for itself and as successor by 24 merger to FIA Card Services, N.A.” 25 phrase is repeated in the motion itself: “Please take notice that 26 Defendant Bank of America, N.A., for itself and as successor by 27 merger to FIA Card Services, N.A. (“BANA”), hereby removes the 28 action described below . . . .” (Notice of Removal.) (Id. at 2.) 6 In the Defendants’ The same Thereafter, all 1 references to the “defendants” are to a singular “BANA” in both the 2 Notice of Removal and the Motion to Dismiss. 3 And even if FIA were to exist as a separate party, there is no 4 indication that FIA did not also have notice of the complaint at 5 the same time BOA did on July 13, 2015, as BOA is the successor by 6 merger for FIA. 7 or did — consent to BOA’s filing of the Notice of Removal. 8 telling is the footnote in the Motion to Dismiss stating that FIA 9 “merged with and into” BOA and the dropping of all further There is also no indication that FIA needed to — Most 10 reference to FIA. 11 these representations indicate that FIA did not file the Notice of 12 Removal and is not a separate legal entity who was served at a 13 later date. 14 filed after the thirty-day time limit for removing a case. (Defs.’ Mot. Dismiss at 1 n.1.) Altogether, Therefore, the Notice of Removal is untimely as it was 15 B. 16 Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may Attorney’s Fees 17 require payment of just costs and any actual expenses, including 18 attorney fees, incurred as a result of the removal.” 19 Court has interpreted this statutory section to warrant attorney’s 20 fee awards “only where the removing party lacked an objectively 21 reasonable basis for seeking removal” unless “unusual 22 circumstances” provide a basis for deviating from the general rule. 23 Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). 24 of attorney’s fees are discretionary, but are to be guided by the 25 principles underlying § 1447(c): to “deter removals sought for the 26 purpose of prolonging litigation and imposing costs on the opposing 27 party.” (Id. at 140.) 28 7 The Supreme Grants 1 Here, Plaintiff has not provided any argument or facts showing 2 that Defendants’ Notice of Removal was filed with the purpose of 3 delaying litigation or imposing costs. 4 12-13.) 5 there is a legitimate legal ground for removal under 28 U.S.C. § 6 1441 because Plaintiff’s federal law claims could have originally 7 been brought in federal court. 8 purposes for awarding attorney’s fees under § 1447(c) are not 9 present here and Plaintiff’s request for attorney’s fees is denied. 10 (See Pl.’s Mot. Remand at Further, absent the untimeliness of the Notice of Removal, Therefore, the Court finds that the IV. CONCLUSION 11 For the reasons stated above, Plaintiff’s Motion to Remand is 12 GRANTED in part as to the remand and DENIED in part as to the 13 attorney’s fees. 14 the Defendants’ Motion to Dismiss is VACATED as moot. 15 8.) Because the Court lacks jurisdiction to hear it, (Dkt. No. 16 17 IT IS SO ORDERED. 18 19 20 Dated: September 28, 2015 DEAN D. PREGERSON United States District Judge 21 22 23 24 25 26 27 28 8
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