United States District Court, M.D. Georgia, Macon Division
JOHN L. PATE Plaintiff,
PRECHECK, INC, Defendant.
T. TREADWELL, JUDGE
MOTION FOR REMAND DENIED
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)).
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
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.
NOTIFICATION OF DUTY TO RESPOND
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.
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).
Right to Amend the Complaint
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
Right to File Response Brief
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.
Consequences for Failing to Respond or Amend
OF PATE TO RESPOND TO AND REBUT THE LEGAL ARGUMENTS SET FORTH
IN PRECHECK'S BRIEF MAY RESULT IN THESE STATEMENTS ...