Hastings v. Bank of America Corporation, No. 4:2013cv02187 - Document 9 (S.D. Tex. 2013)

Court Description: MEMORANDUM AND ORDER granting 5 First MOTION to Remand.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, 4) (Main Document 9 replaced on 10/4/2013) (kcarr, 4).
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Hastings v. Bank of America Corporation Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TOMMY HASTINGS, § § § § § § § § § Plaintiff, v. BANK OF AMERICA CORPORATION, Defendant. CIVIL ACTION NO. H-13-2187 MEMORANDUM AND ORDER Pending is pro se Plaintiff Tommy Hasting's Motion to Remand (Document No.5). ("Plaintiff") After carefully considering the motion, response, reply and the applicable law, the Court concludes that the case must be remanded to the 410th Judicial District Court, Montgomery County, Texas. Plaintiff filed his Original Petition in state court, alleging state law causes of action for negligence, defamation, and breach of fiduciary ("Defendant").l duty against Bank of America Corporation Plaintiff alleges that he entered a contract to sell certain property in July 2012, sentatives for Defendant, and before closing, repre- which evidently had a mortgage on the property, instructed Plaintiff to make no more payments prior to the August closing. Plaintiff 1 as having After August, made a late however, payment, Defendant reported causing negative Document No. I, ex. A (Orig. Pet.). Dockets.Justia.com information to be filed with major credit bureaus. 2 Defendant removed the suit to federal court solely on the basis of federal question jurisdiction, alleging that this Court has jurisdiction under the Fair Credit Reporting Act ("FCRA"), and completely that 15 U.S.C. Plaintiff's claims are 15 U.S.C. § 1681p, preempted under 1681t.3 § Under 28 U.S.C. § 1441, an action filed in state court may be removed to federal court when (1) federal jurisdiction exists and (2) the removal procedure is properly followed. The removing party bears the burden of establishing that federal jurisdiction exists over the controversy. Winters v. Diamond Shamrock Chern. Co., 149 F.3d 387, 397 (5th Cir. 1998). Any doubt about the propriety of the removal is to be resolved in favor of remand. See Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000); Walters v. Grow Group, Inc., 907 F. Supp. 1030, 1032 (S.D. Tex. 1995). Federal jurisdiction based on a federal questi,on exists if a plaintiff's well-pleaded complaint raises a claim that arises under federal law. 29 S. the Ct. 42 complaint 28 U.S.C. § 1331; Louisville & N.R. Co. v. Mottley, (1908). and Generally, may exclusively on state law. 2425, 2429 (1987). 2 avoid a plaintiff is the master of federal jurisdiction Caterpillar Inc. v. Willi~ms, by relying 107 S. Ct. "A defendant cannot establish federal question Id., ex. A at 2-3. 3 Document No.1 at 2. 2 jurisdiction merely by showing that federal law will 'apply' to a case or that there is a 'federal issue' in the plaintiff's state law causes of action." Heston v. AAA Apartment Locating, No. C-09- 151, at *3 2009 WL 2244497, (S.D. Tex. Carpenter v. Wichita Falls Indemnity. Sch. July 24, 2009) District~, (citing 44 F.3d 362, 366 (5th Cir. 1995)). A narrow exception to the well-pleaded complaint rule exists, however, when Congress has so completely preempted a particular area of law "that any civil complaint raising this claims is necessarily federal in character." Ins. Co. v. Taylor, 107 S.Ct. 1542, 1546 (1987). Court has construed § ~lelect group of Metropolitan Life Thus, the Supreme 301 of the Labor Management Relations Act to authorize removal of proceedings that relied only on state law, Avco Corp. v. Aero Lodge No. 735, 88 S.Ct. 1235 (1968) § 502 (a) of ERISA constituted such complete i found that preemption as to authorize the removal of a case alleging only state law claims, Taylor, 107 S. Ct. 1542i and held that §§ 85 and 86 of the National Bank Act so wholly displaced state law causes of action for usury that even those pled under state law are to be const::-ued as arising under the federal act and are therefore removable. Nat'l Bank v. Anderson, 123 S.Ct. 2058 Beneficial (2003). In order to establish complete preemption, the defendant must show that (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the 3 analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that the federal action be exclusive. Gutierrez v. Flores, 543 F.3d 248, 252 ~5th Cir. 2008) (citing Beneficial Nat'l Bank v. Anderson, 123 S.Ct, 2058 (2003)). In his Original Petition, Plaintiff does not seek relief under any federal law and, although he may have been able to allege a claim under the FCRA, he did not do Section 1681h(e) of the defamation and negligent therefore has subject FCRA Defendant argues that completely reporting matter SO.4 claims preempts and that jurisdiction. 5 state this Section law Court 1681h(e) provides that: Except as provided in sections 1681n and 16810 of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against [. .J any person who furnishes information to a consumer reporting agency [. .J except as to false information furnished with malice or willful intent to injure such consumer. 15 U.S.C.A. § 1681h(e). Section 1681h(e) 4 The courts have consistently held that creates a preemption defense against state law Document No. I, ex. A. 5 Document No. 6 at 3. Although Defendant asserted that Plaintiff's claims are completely preempted by Section 1681t in its Notice of Removal (Document No.1), it implicitly abandons that argument in its Opposition to Plaintiff's MoL.on to Remand (Document No.6), now relying solely on Section 16Elh(e) . 4 claims for defamation or negligence that do not allege malice. See, eg., Morris v. Eguifax Info. Servs., LLC, 457 F.3d 460,470-71 (5th Cir. 2006). Defendant's assertion that Plaintiff's claims are "completely preempted" by Section 1681h{e), however, preemption with complete preemption. 6 confuses ordinary The Fifth Circuit explained the distinction as follows: Ordinarily, the term federal preemption refers to ordinary preemption, which is a federal defense to the plaintiff's suit and may arise either by express statutory term or by a direct conflict between the operation of federal and state law. Being a defense, it does not appear on the face of a well-pleaded complaint, and, thus, does not authorize removal to a fede:::-al court. By way of contrast, complete preemption is jurisdictional in nature rather than an affirmative defense to a claim under state law. As such, it authorizes removal to federal court even if the complaint is artfully pleaded to include solely state law claims for relief or if the federal issue is initially raised solely as a defense. Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000) {citing Heimann v. Nat'l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir. 1999)). state law claims defense, but The question here is not whett.er Plaintiff's are whether able this to withstand Defendant's preemption Court has subject natter jurisdiction to hear Plaintiff's state law claims. Fleet Bank, 132 F.Supp.2d 953, 957 (M.D. Ala. 2001) removal See Shaner v. {"[TJhe fact that a complaint alleges willful and malicious conduct 'misses the 6 Document No.6 at 5. 5 point' because whether 'a particular state cause of action is preempted is irrelevant to whether removal of it is appropriate.''') (quoting Swecker v. ( E . D . Va Trans Union Corp., 31 F.Supp.2d 536, 539 . 1998)). 7 It is undisputed that the FCRA satisfies the first two prongs of the Gutierrez test; it contains a civil enforcEment provision and specifically grants jurisdiction to the federal v. USA Shade and Fabric Structures Inc., (N.D. Tex. 2011). ~ourts. Meisel 795 F.Supp.2d 481, 486 In order to establish complete preemption, however, Defendant must also show that Congress iLtended for the federal cause of action under the FCRA to be exclusive. 8 Beneficial, 123 S.Ct. at 2064. not Although the Fifth to have decided this question, (~ircuit See appears "many district courts have considered the issue and concluded that complete preemption is lacking." Galaz v. Chase Bank USA, N.A., CIV.A. 2011 WL 6739612 at *3 (W. D. Tex. Dec. 21, 2011) SA-11-CA-0646, (remanding case to state court); see also, e.g., Ortiz v. Nat'l City Home Loan Servs., 7 The cases relied upon by Defendant may support its defense against Plaintiff's suit, but they discuss only ordinary preemption. None of them answers the j urisdictior..al question of whether FCRA so displaces all state law as to req'L.ire that these claims be construed as having been alleged under FCRA, thereby conferring on the Court removal jurisdiction. Before 2003, the third prong required a clear Congressional intent that claims brought under the federal law be removable, but Beneficial Nat'l Bank v. Anderson, 123 S.Ct. 2058 (2003), shifted the focus to Congress's intent that the federal action be exclusive. Gutierrez, 543 F.3d at 252. 8 6 Inc., Civ. A. Sept. 29, 2009) "Assuming No. H-09-2033, (Hoyt, J.) that any 2009 WL 3255088, *3 (S.D.Tex. (case remanded to state court, holding, state law claim nevertheless, not a basis for removal. defense."); Fiume Indus., at is it preempted, is, It is simply an affirmative Inc. v. Am. Exp. Travel Related Servs. Co., Inc., CIV.A. 4:09-CV-591, 2009 WL 4667542 (S.D. Tex. Dec. I, 2009) (Johnson, M.J.) (case remanded to state court" holding, "As Defendant has not provided, nor has the court uncovered in its own research, any authority to support a finding satisfies the third prong of the Gutierrez test, 1:hat the FCRA the court finds that the FCRA does not completely preempt Plaintiff's state law defamation claim so as to make it removable to fedBral court."); see also, e.g., Meissel, 795 F. Supp. 2d at 491 (case remanded to state court, holding, "Bank has failed to carry its burden to show that Congress clearly intended for civil actions aga:.nst furnishers of credit information to be exclusively litigated in federal court, the court lacks federal-question jurisdiction, and t::1is case should be remanded to the state court from whence it came. ") . Defendant argues that these precedents are distinguishable because the cases cited by Plaintiff, unlike the present case, all alleged false reporting with "malice or willful intent to injure," which is distinction 9 specifically that excluded Defendant from raises--that Document No.6 at 5-6. 7 Section CongresB 1681h. 9 The specifically excluded from the FCRA's preemptive language claims of defamation, invasion of privacy, and negligence in false credit reporting done wi th malice or willful intent to inj ure- -demonstratively shows that Congress did not intend for the FCRA fully to occupy the field of all false credit reporting or wholly to displace all state law pertaining to false reporting. This is quite different from or §§ found § See Beneficial, 123 S. Ct. at 2058. 301 of the LMRA, § 502(a) of ERISA, 85 and 86 of the National Bank Act, where thE: Supreme Court bases for complete jurisdictional preemption. Indeed, Defendant has identified no authority holding that a. federal court has removal jurisdictional over state law claims cf false credit reporting based on complete jurisdictional preemption under the FCRA; the cases on which Defendant relies discuss preemption only as a defense. In his Taylor concurrence, Justice Brennan emphasized the narrowness of the holding, noting that "[i] n future cases involving other statutes, not find a the prudent course for a federal court that does clear congressional intent to create jurisdiction will be to remand the case to state court." 1548 (Brennan, J., concurring) (emphasis in original). removal Id. at "Remand is proper when there is any doubt as to the existence of federal jurisdiction." Noyola v. Oasis Car Wash, 638, 640 (E.D. Tex. 2002). Inc., 2:20 F. Supp. 2d Although Defendant in state court may well prevail against Plaintiff's state law claims with a defense of 8 federal preemption, it has not met its burden to show that this Court has jurisdiction over those state law claims. Accordingly, it is ORDERED that Plaintiff Tommy Hastings's Motion to Remand (Document No.5) is GRANTED, and this case is REMANDED to the 410th Judicial District Court, Montgomery County, Texas. The Clerk will mail a certified copy of this Order to the Clerk of the 410th Judicial District Court of Montgomery County, Texas, as required by 28 U.S.C. § 1447, and shall notify all parties and provide them with a true copy of this Order. SIGNED at Houston, Texas, on this ~~ay of October, 2013. ~/~· WERI~' ATES DISTRICT JUDGE 9