Mark R. Hornak, Chief United States District Judge.
Pending before the Court is Plaintiff Joshua Hughes's Motion to Amend/Correct
The Court initially notes that both the Complaint and the PAC contain a jurisdictional defect that must be addressed. The Complaint asserts subject-matter jurisdiction on the basis of diversity jurisdiction under 18 U.S.C. § 1332(a) and (d). (Compl. ¶¶ 16-17.) With respect to diversity of citizenship jurisdiction under § 1332(a), the Complaint alleges that Plaintiff is a resident of Pennsylvania and that Defendant is a corporation with a principle place of business in Ohio, and the amount in controversy exceeds $75,000. (Id.) "Plaintiffs references to the individuals as `residents' rather than `citizens' are `jurisdictionally inadequate.' Mere residency is insufficient for purposes of diversity of citizenship." Coulter v. Tatananni, No. 17-629, 2017 WL 3835964, at *3, 2017 U.S. Dist. LEXIS 102900, at *6 (W.D. Pa. June 30, 2017) (quoting McNair v. Synapse Group, Inc., 672 F.3d 213, 219 n.4 (3d Cir. 2012)). "The burden of establishing federal jurisdiction rests with the party asserting its existence." Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). Although this defect escaped the Court's attention until now, it still must be addressed, as it goes to this Court's jurisdiction to hear this case. Without establishing Plaintiff's citizenship, Plaintiff fails to establish diversity jurisdiction under § 1332(a).
With respect to CAFA jurisdiction under § 1332(d), Plaintiff merely alleges that "at least one class member is a citizen of a different state than Defendant." (Compl. ¶ 17) But, there are no allegations of the citizenship of any class member, including Plaintiff.
The PAC, interestingly, does not plead § 1332(d) diversity jurisdiction, but its repeated failure to plead Plaintiffs citizenship creates the same jurisdictional defect with respect to § 1332(a). (ECF No. 45-1 ¶ 24.) This alone requires the Court to deny the Motion to Amend on the basis that the PAC fails to invoke this Court's subject-matter jurisdiction and, because the operative Complaint is also deficient, dismiss this case without prejudice. Because this defect is likely curable, the Court will continue to analyze Defendant's
On September 17, 2018, Plaintiff initiated this action individually and on behalf of all others similarly situated against Defendant Nationwide Bank. (Compl.) The Complaint states that "[t]his consumer protection class action seeks equitable, declaratory, and monetary relief to redress Defendant's pattern and practice to fail to provide commercially reasonable post-repossession consumer disclosure notices." (Id. ¶ 2.)
According to the Complaint, in 2013, Plaintiff, a Pennsylvania resident, refinanced his 2012 Ford Mustang through Defendant, executing a Promissory Note in favor of Defendant and entering into a Consumer Security Agreement ("CSA") with Defendant, both attached to Plaintiff's Complaint as Exhibits A and B, respectively. (Id. ¶¶ 3, 6-10.) On September 17, 2015, Defendant (or agents on its behalf) repossessed Plaintiffs Ford Mustang. (Id. ¶ 11.) Defendant sent Plaintiff a Notice of Repossession on the same day as repossession, which Plaintiff alleges failed to comply with the UCC requirements for post-repossession consumer disclosure notices.
Plaintiffs Complaint asserts that his own individual claims fall under the Pennsylvania UCC, but the Complaint's class description, as relevant here, includes individuals who "resided in a state that adopted the sections of the UCC which is the same or substantially similar in content to 13 Pa. C.S. §§ 9610, 9611, 9613, 9614, and 9625," in which case the equivalent statute in that state applies to the proposed class member's claims. (Id. at n.1 & ¶ 40 (emphasis added).) Therefore, "[t]he UCC of the state each class member resides in at the time of the filing of this Complaint is the governing law." (Id. ¶ 19.)
The Complaint pleads a proposed "Main Class" comprised of all persons:
(Id. ¶ 40 (emphasis added).) Claims of the "Main Class," which focus on UCC violations related to Notices of Repossession, are labeled as "Count I." (Id. ¶¶ 58-61.) The Complaint then pleads a "Subclass" defined as all persons in the Main Class:
(Id. ¶ 41 (emphasis added).) Claims of the "SubClass," which relate to UCC violations pertaining to Post-Sale Notices, are labeled as "Count II." (Id. ¶¶ 62-64.) In summary, the "Main Class" captures recipients of allegedly deficient Notices of Repossession, and the "Subclass" captures recipients of those Notices of Repossession who also were sent allegedly deficient Post-Sale Notices or were not sent Post-Sale Notices at all.
Defendant answered the Complaint, ECF No. 29, and filed a Motion for Partial Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c)—seeking dismissal of Count II of Plaintiffs Complaint for failure to state a claim and lack of standing—and a Motion to Strike Plaintiffs Class Allegations under Rule 23(d)(1)(D). (Def.'s Mot. for Partial J., ECF No. 30.) Defendant filed a brief in support of that Motion for Partial Judgment. (ECF No. 31.) Instead of filing a response to the Motion for Partial Judgment, Plaintiff filed a Motion to Determine Choice of Law and supporting brief (Mot. to Determine Choice of Law, ECF No. 38; Pl.'s Br. in Supp., ECF No. 39), the pending Motion to Amend, and finally a Motion
Plaintiff seeks leave to amend his Complaint: "(1) to add more factual detail in light of the preliminary discovery provided; (2) to make the claims for relief under Ohio law (in the alternative to Pennsylvania); (3) to add additional classes; and (4) to bolster the pending UCC claims, adding an additional subclass." (Mot. to Amend ¶ 2.) Plaintiff attached the PAC to the Motion to Amend. (ECF No. 45-1.)
The PAC contains substantial changes from the Complaint. Most important to the pending Motion to Amend, the PAC pleads that the CSA (Exhibit 7 to the PAC) and the Promissory Note (Exhibit 6 to the PAC) trigger the application of Ohio substantive law to Plaintiffs individual UCC claims at issue, but should the Court conclude Ohio law is not the applicable law, then Pennsylvania law applies. (PAC ¶¶ 9, 26.) Plaintiff relies on two contractual provisions to support his shift in position from the initial Complaint, which asserted that Pennsylvania law applied to his individual claims. The first provision is located in the attached Promissory Note
(Ex. 6-Promissory Note, PAC.) The second provision is in the attached CSA
(Ex. 7-CSA, PAC.)
The PAC also re-structures the Complaint's proposed classes and subclasses. The PAC pleads:
In opposing the Motion to Amend, Defendant argues that Plaintiff is attempting to avoid a ruling on arguments raised in its Motion for Judgment on the Pleadings and is using this pending motion to "test drive various legal positions to avoid adverse rulings." (ECF No. 49, at 2.) Specifically, Defendant argues that the PAC would be futile because the proposed amendments seeking to add claims under Ohio law fail to state a claim upon which relief could be granted. Defendant incorporates its brief in opposition to Plaintiffs Motion to Determine Choice of Law. (ECF No. 44.) Plaintiff replied, incorporating its Motion to Determine Choice of Law and brief in support.
Leave to amend shall be "freely given when justice so requires," Fed. R. Civ. P. 15(a)(2), in order to promote the general policy of the Federal Rules of Civil Procedure that cases are better resolved on their merits. Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017). The standard for granting leave to amend was recently outlined by our Court of Appeals in Mullin:
Mullin, 875 F.3d at 149-50. A court should only deny leave "when these factors suggest that amendment would be `unjust.'" Arthur, 434 F.3d at 203.
Because Defendant has only raised arguments under the futility factor, the Court will only analyze that factor. "`Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted. In assessing `futility,' the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (internal quotations omitted).
Defendant argues that many of the proposed amendments in Plaintiffs PAC are futile, as they erroneously rely on Ohio law. Therefore, Defendant asks this Court to first determine the governing law for Plaintiffs UCC claims. Both parties agree that the CSA and Promissory Note include valid choice-of-law provisions, and the Court agrees.
Before the Court may evaluate the CSA's general Governing Law provision and its Exception Clause, it must first address the Promissory Note and that "Governing Law" provision. Although Plaintiff argues that his claims fall under the CSA's Ohio Choice-of-Law provision. Plaintiff also argues that the Promissory
The Promissory Note unequivocally invokes Ohio law, but only with respect to the governance of the Promissory Note itself. The CSA mandates that it is to be governed by the laws of Ohio "except and only to the extent of procedural matters related to the perfection and enforcement of Lender's rights and remedies against the Property, which will be governed by" Pennsylvania law (the Exception Clause). (CSA ¶ 28.)
The proposed amended claims allege that Defendant failed to send commercially reasonable post-repossession consumer disclosure notices to its debtors, including Plaintiff. (PAC ¶ 2.) Specifically:
(PAC ¶¶ 39-46.)
These claims plainly relate to matters arising under the CSA and not the Promissory Note. Plaintiffs claims do not address Plaintiffs obligations or rights as they pertain to his loan from Defendant. Rather, these claims go the heart of the repossession process for secured collateral, which is squarely within the purview of the CSA. Furthermore, Plaintiff roots his claims in Article 9 of the UCC, as adopted by various states. The scope of Article 9 applies to "a transaction ... that creates a security interest in personal property." § 9-109(a)(1). It is the CSA that creates Defendant's security interest in the 2012 Ford Mustang. Because Plaintiffs rights under the UCC spring to life upon the transaction that creates the security interest, Plaintiffs UCC claims arise under the CSA, not the Promissory Note.
Even if the Court read both agreements together,
The next question is, according to the CSA's Governing Law provision, whether Plaintiff's claims fall under the Exception Clause so that Pennsylvania law applies, or whether they do not, so that they are subject to Ohio law. The CSA is a contract, so this is a question of contract interpretation, which is a matter of law. Enter. Bank v. Frazier Family Ltd. P'ship, 168 A.3d 262, 265 (Pa. Super. 2017); Ogan v. Ogan, 122 Ohio App.3d 580, 702 N.E.2d 472, 474 (1997).
Again, the relevant portion of that provision directs that:
(CSA (emphasis added).) Only one other federal court has addressed this contractual language in this context. In Pint ex rel. Lehigh One, LLC v. Breckner, the plaintiff sought to invalidate a mortgage, which contained the following choice of law provision: "[m]ortgage shall be governed by ... the laws of the State of Minnesota except and only to the extent of procedural matters related to the perfection and enforcement by Mortgagee of his rights and remedies against the Property, which matters shall be governed by the laws of the State of Florida." No. 08-CV-5340, 2009 WL 4042905, at *3, 2009 U.S. Dist. LEXIS 107909, at *7 (D. Minn. Nov. 18, 2009) (emphasis added). The Court concluded that Florida law designated in the "exception clause" applied, as the plaintiff was
Like the analysis in Breckner, the Court concludes that the nature of Plaintiff's claims—that Defendant failed to follow the proper procedure while exercising its right to repossess and sell the secured property —fit squarely within the Exception Clause, as they go to the heart of Defendant's right to enforce his remedies against the property (here, the Ford Mustang). This derives from the unambiguous plain meaning of the Exception Clause, and the Court need not dive deeper to reach this commonsense conclusion. See Auto-Owners Mut. Ins. Co. v. Bruce, 2006 WL 73804, at *2, 2006 Ohio App. LEXIS 97, at *6 (Ohio Ct. App. 2006) ("The language voluntarily selected, drafted into the policy, and contracted to by the parties must be given its plain meaning."); see also LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (2009) (same).
Plaintiff's argument for a contrary interpretation is unavailing. Plaintiff argues that his claims cannot fit within the Exception Clause because (1) his claims are not based on "procedural" matters, (2) his claims do not relate to "perfection and enforcement," and (3) his claims do not relate to Defendant's "rights and remedies." Those arguments each fail, and here is why.
Plaintiff argues that his claims cannot fall within the Exception Clause because they are not "procedural matters," as the Exception Clause requires. Plaintiff argues his claims cannot be construed as "procedural" because they are substantive UCC violations, violations rooted in statute. Defendant counters that the word "procedural," as it is used in the Exception Clause, means "procedures under the UCC." (ECF No. 49, at 6.) Defendant also accurately points out that Plaintiff describes his claims in the PAC as "failure[s] to follow the
The Court does agree with Plaintiff that his claims address violations of substantive rights conferred by the state's adoption of the UCC, but the Court disagrees that the term "procedural" as it is used in Exception Clause should be (or even could be) interpreted in the manner in which Plaintiff advocates. Plaintiff cites to the legal definitions of "procedural law" and "substantive law" in Black's Law Dictionary to support his position, but reliance on the term "procedural law" is misplaced for two reasons. First, the Court simply finds no support for the premise that the parties intended the word "procedural" to be synonymous with the legal term of art, "procedural law."
The Court concludes that the unambiguous interpretation of "procedural" as it is used in the CSA's Exception Clause is that it refers to the method of actions or manner in which to accomplish the perfection and enforcement of Defendant's rights and remedies against Plaintiff's 2012 Ford Mustang. The Court is able to discern this interpretation from the four corners of the CSA, but its unambiguity is demonstrated by Plaintiff's own summary of his claims as "failure[s] to follow the proper
Furthermore, if any substantive violation of either the UCC or any other commercial statute or code fell outside the Exception Clause because it is not "procedural," the only remaining claims that would be governed by the Exception Clause would be bare procedural violations. The United States Constitution bars plaintiffs from bringing claims before Article III courts on bare procedural violations. Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). Adopting Plaintiff's interpretation of "procedural" would both render the Exception Clause meaningless and would self-plead him out of this Court. The Exception Clause's term "procedural matters" does not knock Plaintiffs claims out of the Exception Clause.
Plaintiff next argues that the Exception Clause only includes claims that relate to both "perfection and enforcement," as in the use of and should be read in the conjunctive. Plaintiff's proposed interpretation is that the claims must be both a matter of perfection and a matter of enforcement to fall within the Exception Clause. Any other interpretation, Plaintiff argues, would be an impermissible substitution from and to or of the parties' chosen language.
"And can convey that the members of a group are to be considered together, but it can also convey that they are to be considered together and separately." Kenneth A. Adams & Alan S. Kaye, Revisiting the Ambiguity of "And" and "Or" in Legal Drafting, 80 St. John's L. Rev. 1167, 1172 (2006). "[W]hether and is ambiguous, and in what way, depends entirely on the grammatical context." Id.
In the Exception Clause, "related to the perfection and enforcement" functions as a clause modifying "matters," with "perfection and enforcement" functioning as the object predicate of that clause. In Adams and Kaye's article, they discuss object-predicative ambiguity with the following example: "Delta may issue a promissory note to Echo and Foxtrot." Id. at 1176. The meaning is ambiguous because it could mean that "Delta may issue a promissory note to both Echo and Foxtrot, as opposed to one or the other," "to Echo, to Foxtrot, or to each of them," or "to Echo and Foxtrot jointly." Id.
Several canons of interpretations guide the Court's analysis. First, "[t]he usual meaning of the word `and,' however, is conjunctive, and `unless the context dictates otherwise, the `and' is presumed to be used in its ordinary sense...." Reese Bros., 447 F.3d at 235-36 (quoting Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005)). Second, ambiguities are construed in favor of the non-drafting party. Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52, 62-63, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Third, if the two objects predicate cannot be considered collectively,
With respect to this third canon, consider, for example, a municipal code that imposed a tax "on the business of the collection of garbage, rubbish, trash, CDL Waste, and other solid waste." Philip Servs. Corp. v. City of Seattle, 2007 WL 703713, at *7, 2007 U.S. Dist. LEXIS 14906, at *19 (S.D. Texas 2007). In arguing that the tax did not apply to him, the plaintiff argued that the word "and" in the code is conjunctive and required the taxpayer to collect all five enumerated forms of waste. Id. The district court rejected this argument, concluding it would result in absurdity as only businesses that collected every possible type of solid waste would be captured by the code provision. Id. at *7, 2007 U.S. Dist. LEXIS 14906, at *22. The district court concluded that the only reasonable interpretation is that "the enumerated categories of waste are a group that is to be considered separately and individually, not together or collectively." Id. at *7, 2007 U.S. Dist. LEXIS 14906, at *21.
In light of the fact that Plaintiff is the non-drafter and advocating for the ordinary conjunctive form of and, his interpretation will prevail so long as it is not an unreasonable interpretation. But such an interpretation is, in fact, unreasonable. Plaintiff himself acknowledges that it is "quite unclear" what the phrase "perfection and enforcement," would mean if read in the conjunctive. (ECF No. 50, at 5.) Plaintiff then surmises that the phrase is meant to capture Nationwide's "inherent enforcement effect against other lien holders and procedural issues relating to the filing of the financial statement/certificate of title to the motor vehicle." (Id. at 5-6.) This cannot be a reasonable interpretation, as the Governing Law clause only applies to those who are bound by the CSA itself. It certainly does not govern disputes between competing lien holders. Even the second component of Plaintiff's hypothesized meaning—procedural issues related to the filing of financial statement/certificate of title—embraces a disjunctive approach as it only addresses perfection but not enforcement. The reality is that perfection
Plaintiff argues that his claims are brought pursuant to "a debtor's right to a statutory disclosure notice" which is not "akin to a Lender's rights," taking his claims out of the Exception Clause.
Plaintiffs claims fall within the Exception Clause, and Pennsylvania law will apply to Plaintiffs claims. Each of Plaintiff's suggested interpretation arguments independently fails for the same reason: the proposed interpretation of a word or a phrase is unreasonable when viewed in context of the Exception Clause as a whole. Those results become clearer when Plaintiffs three arguments are viewed together. Under Plaintiffs reading of the Exception Clause, only claims related to Procedural Law, as that term is used in the legal context, but simultaneously related to both perfection and enforcement, and that directly enforce Defendant's rights and remedies against the property would fall within the Exception Clause. This is an internally conflicting statement, and its application would render an absurd result.
Now that the Court has concluded that Pennsylvania law applies to Plaintiffs individual claims, the Court may evaluate the PAC for futility. The PAC proposes alternative class descriptions based on either Ohio law or another state's law expressly
The PAC also proposes other class allegations "if it is adjudicated that Plaintiffs' [sic] desired choice of law (Ohio) is not deemed to control these proceedings." (PAC ¶ 54.) The proposed Alternative Main Class is defined, in part, as all persons "whose vehicle was repossessed in Pennsylvania." However, it is unclear what impact the Court's ruling about the applicable law has on this proposed alternative class and its subclasses. The Court's conclusion that Pennsylvania law applied was based on the governing law provision between Plaintiff and Defendant, with Plaintiff's residency or the location of the repossession of no significance. Similarly, the CSA's contractual provisions do not extend to any other individuals. The governing law over other purported class members will in all likelihood hinge on that specific purported class member's governing law provision within his or her own consumer security agreement with Defendant.
Plaintiff's Motion to Amend is denied. Because the Initial Complaint fails to adequately plead subject-matter jurisdiction, this case is dismissed without prejudice to Plaintiff filing a Second Motion to Amend the Complaint conforming with this Opinion and Accompanying Order and without prejudice to Defendant asserting any new argument or re-asserting previous arguments should it decide to oppose the Second Motion to Amend the Complaint.
Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397, 953 N.E.2d 285, 292 (2011) (quoting Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 797 N.E.2d 1256, 1261-62 (2003)) (citations omitted).
Wert v. Manorcare of Carlisle PA, LLC, 633 Pa. 260, 124 A.3d 1248, 1259 (2015) (quotations and citations omitted).
Westfield Ins. Co., 797 N.E.2d at 1262 (internal quotations and citations omitted). Although Westfield addressed the interpretation of an insurance contract, this Court finds no authority that the rule would vary when applied to a consumer security agreement, in which the bargaining positions between a creditor and a debtor mirror those of an insurer and an insured.
Reaching the same conclusion, the Pennsylvania Supreme Court stated that "`[a] contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.' The `reasonably' qualifier is important: there is no ambiguity if one of the two proffered meanings is unreasonable." Trizechahn Gateway Ltd. Liab. Co. v. Titus, 601 Pa. 637, 976 A.2d 474, 483 (2009) (quoting Ins. Adjustment Bureau v. Allstate, 588 Pa. 470, 905 A.2d 462, 468-69 (2006)).
