United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is plaintiffs' motion to remand. ECF No.
8. This motion hinges on whether plaintiffs' Amended
Complaint provided sufficient information to have required
the defendant to remove the action to federal court in July
2016, instead of waiting until April 2018, when removal
occurred. For the reasons that follow, the court finds that
the Amended Complaint did not provide sufficient detail and
DENIES plaintiffs' motion to remand.
Darlenna and Curtis Franklin, became delinquent on their
mortgage sometime before February 2016. Amended Complaint at
¶¶ 3-4. Plaintiffs retained an attorney who
notified the defendant, Manufacturers & Traders Trust
Company (“M&T Bank”), of his representation
by letter dated February 1, 2016. Id. at ¶ 4.
Defendant acknowledged receipt of this letter. Id.
at ¶ 5. Thereafter, M&T Bank allegedly continued
contacting plaintiffs by telephone and mail. Id. at
filed their complaint on May 24, 2016 in Mercer County
Circuit Court alleging these communications violated the West
Virginia Consumer Credit and Protection Act
(“WVCCPA”), West Virginia Computer Crime and
Abuse Act, and constituted an invasion of privacy.
3, 2016, plaintiffs filed an Amended Complaint, which
contained class claims for relief extrapolating the same
legal violations as the original complaint. See
Amended Complaint at ¶ 31. The proposed class included
“all consumers with West Virginia addresses who were
mailed letters [by defendant] . . . in an attempt to collect
a claim owed by a consumer at any time within four years
prior to the filing of this civil action . . . [including]
attorney fees, property inspection fees, and/or additional
fees . . .” Id. at ¶ 32. As relief,
plaintiffs requested actual damages for violations of the
WVCCPA, statutory damages in the maximum amount allowable by
the WVCCPA, general compensatory damages and punitive
damages, along with costs and attorney's fees.
Id. at pp.3-4. While the Amended Complaint declares
that the proposed class “is so numerous that joinder of
all members is impractical, ” id. at ¶
34, the only amount definitively at issue is a bill for $5,
519.02 allegedly owed by the Franklins. See id., Ex.
Bank filed a notice of removal to this court on April 18,
2018 alleging that it became aware on March 21, 2018 that
removal was appropriate under the Class Action Fairness Act
of 2005 (“CAFA”). On this date, M&T Bank
provided plaintiffs with its Supplemental Responses to
Plaintiffs' Third Request for Production and Third Set of
Interrogatories. In this discovery response, M&T Bank
identified 542 defaulted loan accounts involving 5, 153
different property inspection fees or attorney's fees
within plaintiffs' proposed class. These fees multiplied
by the applicable statutory damages provided a maximum $17,
601, 800 in damages. See Notice of Removal at
17, 2018, plaintiffs filed the instant motion to remand, and
the case has now been fully briefed. ECF Nos. 8, 9, 15, 16.
defendant may remove to federal district court “any
civil action brought in a State court of which the district
courts of the United States have original jurisdiction. . .
.” 28 U.S.C. § 1441(a). Under CAFA, an action may
be originally brought in federal court if it has (1) at least
one member of the class who is a citizen of a state different
than at least one of the defendants; (2) the class consists
of at least one hundred members; and (3) the amount in
controversy exceeds $5, 000, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(d)(2). To remove an action to
federal court under CAFA, a defendant must file a notice of
removal “containing a short and plain statement of the
grounds for removal.” 28 U.S.C. § 1446(a); see
also Strawn v. AT&T Mobility LLC, 530 F.3d 293, 297
(4th Cir. 2008).
the defendant bears the burden of alleging federal
jurisdiction under CAFA, id., there is “no
antiremoval presumption attend[ing] cases invoking CAFA . . .
a defendant's notice of removal need include only a
plausible allegation that the amount in controversy exceeds
the jurisdictional threshold.” Dart Cherokee Basin
Op. Co. v. Owens, -- U.S. --, 135 S.Ct. 547, 554 (2014).
If jurisdiction is challenged, the parties are required to
submit proof and the court must determine if federal
jurisdiction under CAFA has been met by a preponderance of
the evidence. 28 U.S.C. § 1446(c)(2)(B); Dart,
135 S.Ct. at 553- 54.
however, is constrained by statutorily-imposed time limits. A
defendant seeking to remove an action to federal court under
CAFA must comply with the time limits of the general removal
statute, 28 U.S.C. § 1446, without considering the
one-year deadline for removing cases under diversity
jurisdiction. See U.S.C. § 1453. Therefore, 28
U.S.C. § 1446 creates two thirty-day windows for removal
under CAFA. First, a defendant may file its notice of removal
within 30 days of the service or receipt of the initial
pleading. 28 U.S.C. § 1446(b)(1). However, “if the
case stated by the initial pleading is not removable, ”
the defendant may file a notice of removal within 30 days of
receiving “a copy of an amended pleading, motion, order
or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3) (emphasis
Plaintiffs Must Provide an Unequivocal Statement from which