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Pate v. Precheck, Inc.

United States District Court, M.D. Georgia, Macon Division

March 7, 2017

JOHN L. PATE Plaintiff,
v.
PRECHECK, INC, Defendant.

          ORDER

          MARC T. TREADWELL, JUDGE

         I. MOTION FOR REMAND DENIED

         Plaintiff John L. Pate move to remand this case back to the Magistrate Court of Houston County, Georgia. Doc. 5. Pate argues that “[r]emand is appropriate because there is no basis for this Court to exercise jurisdiction over the state law claims alleged by the Plaintiff in his Complaint.” Id. at 1. Pate acknowledges that he brought a claim under “the Fair Credit Reporting Act, 15 U.S.C. § 1681, ” and “[a]n action to enforce any liability created under [the FCRA] may be brought in any appropriate United States district court, without regard to the amount in controversy.” Id. at 2 (quoting 15 U.S.CA. § 1681p). Pate recognizes that “28 U.S.C. § 1441(a), authorizes a defendant to remove from state court to federal court ‘any civil action brought in a State court of which the district courts of the United States have original jurisdiction.'” Id. at 2 (quoting 28 U.S.C. § 1441(a)).

         But Pate emphasizes that jurisdiction over an FCRA claim is also proper in “any other court of competent jurisdiction, ” such as the Magistrate Court. Id. at 2 (quoting 15 U.S.CA. § 1681p). Pate argues that “[b]ecause the Fair Credit Reporting Act allows for claims to be filed in state courts, and a full two-thirds of the original claim against the Defendant are for alleged violations of state law, the Plaintiffs [sic] right to relief is not dependent upon resolution of a substantial question of federal law; therefore, this Court does not have original jurisdiction over this civil action.” Id. Pate is wrong.

         Removal of an action containing state law claims is proper so long as the state law claims form part of the same case or controversy as an accompanying federal claim. See City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 165 (1997); see also 28 U.S.C. §§ 1367(a), 1441(a). Pate's FCRA claim is a federal claim. Pate's motion for remand is accordingly DENIED.

         II. NOTIFICATION OF DUTY TO RESPOND

         Defendant Precheck, Inc. (Precheck) filed a motion to dismiss and a brief in support thereof on February 27, 2017. Doc. 4. In an effort to afford Pate, who is proceeding pro se, adequate notice and time to respond to Precheck's motion, the following notice is given.

         When considering a motion to dismiss, the Court must accept as true all facts set forth in the plaintiff's complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do.” Id. Although the complaint must contain factual allegations that “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff's claims, id. at 556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.'” Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

         A. Right to Amend the Complaint

         Precheck's motion to dismiss alleges there are certain deficiencies in Pate's complaint. In some situations, deficiencies in a complaint may be cured with a more carefully drafted complaint. Under Federal Rule of Civil Procedure 15(a)(1)(B), a plaintiff “may amend its pleadings once as a matter of course within . . . 21 days after service of a motion under Rule 12(b) . . . .” If Pate thinks, based on Precheck's motion to dismiss, that a more carefully drafted complaint or more specific allegations would state a claim, he has 21 days to amend his complaint. Pate should be aware that a dismissal could prevent him from refiling his claims if the running of the applicable statute of limitations would bar further litigation. Brennan v. Comm'r, Ala. Dep't of Corr., 626 F. App'x 939, 946 n.4 (11th Cir. 2015). Pate should, therefore, take the opportunity to amend his complaint to cure, if possible, the deficiencies addressed in Precheck's motion to dismiss.

         B. Right to File Response Brief

         Under the procedures and policies of this Court, motions to dismiss are normally decided on briefs. Pate may submit his argument to this Court by filing a brief opposing Precheck's motion to dismiss. Unless the Court has granted prior permission, any brief should not exceed 20 pages. M.D. Ga. Civ. R. 7.4.

         C. Consequences for Failing to Respond or Amend

         FAILURE OF PATE TO RESPOND TO AND REBUT THE LEGAL ARGUMENTS SET FORTH IN PRECHECK'S BRIEF MAY RESULT IN THESE STATEMENTS ...


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