MICHAEL JOHN ALOI, Magistrate Judge.
This matter is before the undersigned pursuant to an Order of Referral (ECF No. 16) signed by Senior United States District Judge Irene M. Keeley on May 23, 2019. On June 7, 2019, Plaintiff filed a Motion to Remand (ECF No. 32). For the foregoing reasons, the undersigned
According to Plaintiff's Complaint ("Pl. Compl."), pro se Plaintiff Joshua J. Minix is an incarcerated individual in the state of West Virginia and has been such since 2013 (ECF No. 1 at 9). In March 2018, a request for Plaintiff's consumer credit report was submitted to Defendants Experian Information Solutions, Inc. ("Experian"); Equifax Information Services, LLC. ("Equifax"); and Transunion, LLC ("Transunion") through services of Defendant Central Source, LLC ("Central Source"). (Pl. Compl. ¶ 17). Upon receipt of the report from Experian in April 2018, Plaintiff claims that he noticed erroneous entries. (Pl. Compl. ¶ 18). In order to correct these errors, Plaintiff's complaint alleges that he submitted requests to Defendants Biltmore Asset Management ("Biltmore"), Progressive Casualty Insurance Company ("Progressive"), and Capital One to discover why inquiries were made on his credit. (Pl. Compl. ¶¶ 22, 24, 25).
On or about September 14, 2018, Plaintiff submitted a dispute regarding alleged Department of Education debts demanding that the erroneous debts be removed. (Pl. Compl. ¶ 30). On or about September 16, 2018, Plaintiff filed a written credit dispute with Experian, Transunion, Equifax, Capital One, Progressive, and Biltmore requesting all erroneous inquiries be removed. (Pl. Compl. ¶ 32). Additionally, in December 2018, Plaintiff submitted two written disputes to Experian regarding outdated names and addresses present in his credit report. (Pl. Compl. ¶¶ 39-40). Plaintiff's Complaint alleges that he is also currently in dispute with Defendant Child Support Collection Unit as they continue to report an alleged debt but have failed to correspond with Plaintiff. (Pl. Compl. ¶¶ 50-52). Plaintiff's complaint alleges that actions of the named Defendants have caused him to suffer "actual damages, including economic loss, lost opportunity to receive credit, damage to reputation, invasion of privacy, interference with his normal an[d] usual activities, emotional distress, anger, frustration, anxiety, humiliation, fear, worry, and related health problems." (E.g., Pl. Compl. ¶ 71).
On or about April 9, 2019, Plaintiff filed suit against Defendants Central Source, Experian, Equifax, Transunion, Biltmore, Capital One, Progressive, Child Support Collection Unit, and U.S. Department of Education in the Circuit Court of Preston County, West Virginia. (ECF No. 8 at 2). Plaintiff seeks a permanent injunction and monetary compensation for alleged violations under the West Virginia Consumer Credit and Protection Act (W. Va. Code §§ 46A-1-101 et seq.), West Virginia Uniform Declaratory Judgments Act (W. Va. Code §§ 55-13-1 et seq.), West Virginia Common Law, Fair Credit Reporting Act (15 U.S.C. §§ 1681 et seq.), Fair Debt Collection Practices (15 U.S.C. §§ 1692 et seq.), Civil Rights Act (42 U.S.C. §§ 1981 et seq.), and Title 42 U.S.C. §§ 666 et seq. (Pl. Compl. at 1). Plaintiff alleges that these violations include reporting false, inaccurate, and outdated information to credit-reporting agencies; failing to disclose consumer's complete credit file; failing to place a security freeze on Plaintiff's credit report as requested; accessing Plaintiff's consumer report without a permissive purpose; and failing to remove inaccurate or erroneous inquiries from Plaintiff's credit report. (Pl. Compl. at 4-12). While proceedings were before the Circuit Court of Preston County, Defendants Equifax and Biltmore filed answers denying Plaintiff's allegations. (ECF No. 8 at 2).
On May 15, 2019, Defendant Progressive, with consent of all other Defendants (ECF No. 1 at 126-133), filed a Notice of Removal (ECF No. 1) stating that the federal courts have original jurisdiction over the case and supplemental jurisdiction over any state law allegations under federal question jurisdiction because the action was brought pursuant to 15 U.S.C. §§ 1681 et seq.; 15 U.S.C. §§ 1692 et seq.; 42 U.S.C. §§ 1981 et seq.; and Title 42 U.S.C. §§ 666 et seq. as alleged in the Plaintiff's Complaint. After the case was removed to the Northern District of West Virginia, Defendants Progressive (ECF No. 5), Experian (ECF No. 9), TransUnion (ECF No. 10), and Child Support Collection Unit (ECF No. 15) filed answers to Plaintiff's Complaint.
On June 7, 2019, Plaintiff filed a Motion to Remand (ECF No. 32) disputing Defendant's removal to the United States District Court for the Northern District of West Virginia. Opposition to this motion was filed by Defendants Central Source, Experian, Equifax, TransUnion, Capital One, Progressive, and Child Support Collection Unit on June 20, 2019.
In Plaintiff's Motion ("Pl's Mot.") to Remand (ECF No. 32) filed June 7, 2019, Plaintiff presents three main arguments in support of his assertion that the case should be remanded back to the Circuit Court of Preston County. First, Plaintiff alleges that this Court does not have proper subject matter jurisdiction because, (1) Plaintiff's claim is substantially predominated by issues of State Law with any federal law claims being "merely incidental to the core of the action," (2) Defendants Biltmore, Transunion and Child Support Collection Unit failed to satisfy the statutory requirement for removal by not including the signer's address, email, and phone number as required by Rule 11 of the Federal Rules of Civil Procedure and therefore removal was deficient, and (3) all Defendants except Progressive failed to attach a copy of process as required by 28 U.S.C. § 1446(a). (Pl. Mot. at 3-4).
Second, Plaintiff alleges that this case should be remanded because this Court does not have personal jurisdiction over Defendants U.S. Department of Education, Progressive, Capital One, Transunion and Central Source as they "have not served an answer to this Plaintiff's complaint and summons and therefore they are not an official party to this action.
Pursuant to 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a);
When determining whether removal is proper, the court must first determine whether it has original jurisdiction over the plaintiff's claims. Under Title 28 of the United States Code, Section 1331, District Courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." "A cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law."
In this case, Plaintiff argues his complaint "was substantially predominated by the West Virginia Consumer Credit and Protection Act" and that his "FCRA claims are merely incidental to the core of the action arising under the West Virginia Consumer Credit and Protection Act and West Virginia tort law" and therefore federal question jurisdiction is improper as the state court has "the power and jurisdiction to handle matters where federal questions arise that are similar to state counterparts." Plaintiff's argument however, is not supported by law because the predominance of state claims is not determinative of federal question jurisdiction. District courts have original jurisdiction to hear cases where "a federal question is presented on the face of the plaintiff's properly pleaded complaint."
Regarding state law claims made by Plaintiff, the claims may be appropriately brought in federal court so long as the state claims are so related to the federal law claims that they create the "same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367. The Plaintiff's state law claims—violation of the West Virginia Consumer Credit and Protection Act, West Virginia Declaratory Judgments Act and West Virginia Common Law— stem from the same alleged conduct by the same Defendants as described in Plaintiffs federal claims. The undersigned
The court must next determine whether Progressive followed the proper removal procedure as set forth in 28 U.S.C. § 1446. The rule states in pertinent part as follows:
28 U.S.C. § 1446(b). After the 2011 amendments, the statute established a unanimity requirement for cases involving multiple defendants, requiring all defendants to join in or consent to removal. The "`statute does not address the form consent must take. Neither does it expressly address when consent must be filed if separate from the notice of removal.'"
Here, Plaintiff asserts Progressive improperly removed this case to federal court, arguing that Defendants Biltmore, TransUnion and Child Support Collection Unit failed to comply with Federal Rule of Civil Procedure 11(a) when signing their respective Joinder and Consent to Removal notices because the notices did not include the signer's address, email address, and telephone number.
Plaintiff's argument lacks merit. The Fourth Circuit has held that the rule of unanimity does not require that "each of the defendants sign the notice of removal or file a separate notice of removal complying with § 1446(b)."
In
Progressive's notice of removal in this case goes far beyond what was deemed sufficient in
Plaintiff asserts that Progressive was the only defendant to attach "a copy of process" as required by 28 U.S.C. § 1446(a) and therefore removal was defective and grounds for remand. (Pl. Mot. ¶ 14).
The federal rules require defendants who are interested in removing a case to federal court to accompany their notices of removal with "a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). Failure to attach these state court papers is "merely procedural" and "may be cured."
In this case, Progressive did not file the summonses for the other Defendants when it filed its notice of removal. However, the Summonses for all Defendants were provided with the certified copy of the state court records and have been entered onto the docket in this case. (ECF No. 8-1 at 45-53). Accordingly, the undersigned
Plaintiff argues that the Notice of Removal was improper because the court lacks personal jurisdiction over Defendants Central Source, TransUnion, Capital One, Progressive, and the U.S. Department of Education as these defendants had not served Answers to Plaintiff's Complaint prior to the Notice of Removal's filing. (Pl. Mot. ¶ 15). As a Defendant is not required under 28 U.S.C. § 1446 to file an answer prior to removal and under Federal Rule of Civil Procedure 81(c)(2) is expressly permitted to file an answer after removal, the undersigned
Finally, Plaintiff asserts that the doctrine of permissive abstention applies, and as a result the case should be remanded to state court. (Pl. Mot. ¶ 16-17). Defendants argue the permissive abstention doctrine is not applicable to this case, explaining that it applies only to bankruptcy cases.
Codified in 28 U.S.C. § 1334, under the heading "Bankruptcy cases and proceedings," the doctrine of permissive abstention permits a district court to abstain from hearing a state law claim, if the case could not have been initially brought in the district court but for a pending bankruptcy.
While the doctrine of permissive bankruptcy abstention is not applicable to this case, the undersigned acknowledges that there are non-bankruptcy abstention doctrines by which the district court can choose to abstain from adjudicating a case. However, "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule."
First, abstention is appropriate when there is a "federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.
The present case does not fall within any of the above abstention categories. Consequently, the undersigned
For the foregoing reasons, the undersigned
Any party shall, within fourteen (14) days after being served with a copy of this Report and Recommendation, file with the Clerk of the Court
The Court directs the Clerk of the Court to provide a copy of this Order to any parties who appear pro se and all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.