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Franklin v. Manufacturers and Traders Trust Co.

United States District Court, S.D. West Virginia, Bluefield

July 19, 2018



          David A. Faber Senior United States District Judge

         Pending 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.

         I. BACKGROUND

         Plaintiffs, 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 ¶¶ 5-9.

         Plaintiffs 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. See Complaint.

         On June 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. 1.

         M&T 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 ¶¶ 25-29.

         On May 17, 2018, plaintiffs filed the instant motion to remand, and the case has now been fully briefed. ECF Nos. 8, 9, 15, 16.


         A 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).

         While 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.

         Removal, 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 added).


         A. Plaintiffs Must Provide an Unequivocal Statement from which Removal ...

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