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Justice v. Branch Banking & Trust Co.

United States District Court, S.D. West Virginia, Charleston Division

January 4, 2017

LORI JUSTICE, Plaintiff,



         Pending before the Court is Plaintiff's Motion to Remand and for Fees and Costs. (ECF No. 7.) For the reasons discussed below, the Court DENIES the motion.

         I. BACKGROUND

         This case arises out of Defendant's efforts to collect a debt from Plaintiff resulting from a Retail Installment Sales Contract executed in August 2014 to purchase an automobile. (See ECF No. 27 at 2, ¶¶ 7, 9.) Plaintiff is a resident of West Virginia, (id. at 1, ¶ 1), and Defendant “is a corporation existing under the laws of North Carolina with its principal place of business located in Winston-Salem, North Carolina.” (ECF No. 1 at 2, ¶ 6.)

         The Amended Complaint alleges that “Defendant engaged in unconscionable and illegal practices in attempts to collect a consumer claim and by repossessing property belonging to the Plaintiff in violation of the law without authority or a current right of possession to do so.” (ECF No. 27 at 2, ¶ 6.) As part of its debt-collection efforts, Defendant allegedly “engaged in repeated telephone calls to the Plaintiff, her family, [and] her friends . . . [that] were abusive, oppressive, harassing, threatening, and rude.” (Id. at 3, ¶¶ 15-16.) Furthermore, Plaintiff claims that “[t]he Defendant debt collector's statements were misleading, threatening, abusive, oppressive, rude, and harassing towards the Plaintiff in an attempt to collect the claim.” (Id. at 3, ¶ 22.) The Amended Complaint also avers that Defendant unlawfully repossessed the vehicle that was the subject of the August 2014 contract without providing “any Notice of Default or Right to Cure or court order allowing Defendant to repossess the property . . . .” (See Id. at 3, ¶¶ 23-26.)

         On March 2, 2016, Plaintiff filed her Complaint in the Circuit Court of Logan County, West Virginia. (ECF No. 1-1 at 7.) Defendant removed the case to this Court on April 6, 2016. (ECF No. 1.) In the Notice of Removal, Defendant asserts that the sole basis for this Court's subject-matter jurisdiction over this case is diversity pursuant to 28 U.S.C. § 1332. (See Id. at 1-2.)

         Plaintiff filed an Amended Complaint on November 3, 2016, (ECF No. 27), in accordance with this Court's order on November 1, 2016. (ECF No. 26.) The Amended Complaint includes eleven counts: (1) violations of section 46A-2-125 of the West Virginia Consumer Credit and Protection Act (“WVCCPA”), (ECF No. 27 at 4-5, ¶¶ 31-35); (2) violations of section 46A-2-128 of the WVCCPA, (id. at 5, ¶¶ 36-39); (3) violations of section 46A-2-127 of the WVCCPA, (id. at 5-6, ¶¶ 40-43); (4) violations of section 46A-2-106 of the WVCCPA, (id. at 6-7, ¶¶ 44-46); (5) violations of section 46A-2-123 of the WVCCPA, (id. at 7, ¶¶ 47-50); (6) common law conversion, (id. ¶¶ 51-52); (7) violations of section 46A-6-104 of West Virginia's Unfair and Deceptive Acts and Practices (“UDAP”) law, (id. at 7-8, ¶¶ 53-55); (8) tort of outrage, (id. at 8, ¶¶ 56-60); (9) common law negligence, (id. at 9, ¶¶ 61-68); (10) intentional infliction of emotional distress (“IIED”), (id. at 9-10, ¶¶ 69-75); and (11) common law invasion of privacy, (id. at 10- 11, ¶¶ 76-80). The Amended Complaint requests a broad array of relief, including the following: (1) “[a]ctual damages for the past and future violations of the WVCCPA as authorized by West Virginia Code 46A-5-101(1);” (2) “[s]tatutory damages in the maximum amount authorized by West Virginia Code 46A-5-[ ]101(1);” (3) “[i]njunctive relief ordering Defendant to remedy any negative reporting that may have occurred to credit bureaus and the like;” (4) “Plaintiff's cost of litigation;” (5) that Plaintiff's “alleged debt be canceled;” (6) “[g]eneral damages and punitive damages for Defendant's past and future conduct alleged in Counts VI, VIII, IX, X, and XI;” and (7) “other such relief as the Court shall deem proper and appropriate.” (Id. at 11, ¶ 81.)

         Plaintiff filed the current motion to remand on May 6, 2016, in which she asserts that this Court lacks subject-matter jurisdiction over the matter because the amount in controversy is below the $75, 000 requirement for diversity jurisdiction. (See ECF No. 8 at 2-3.) Defendant filed its Response to Plaintiff's Motion to Remand on May 20, 2016. (ECF No. 12.) Plaintiff did not file a reply brief.

         As such, this motion is briefed and ripe for the Court's consideration.


         Article III of the United States Constitution provides, in pertinent part, that “[t]he judicial Power shall extend . . . to Controversies . . . between Citizens of different States.” U.S. Const. art. III, § 2. “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).

         Congress provided a right to remove a case from state to federal court under 28 U.S.C. § 1441. This statute states, in relevant part:

Except as otherwise expressly provided by Act of Congress, 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). Because removal of civil cases from state to federal court infringes state sovereignty, federal courts strictly construe the removal statute and resolve all doubts in favor of remanding cases to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); see also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because removal jurisdiction raises ...

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