United States District Court, S.D. Georgia, Brunswick Division
GODBEY WOOD, CHIEF JUDGE
before the Court is Plaintiff Michael Boyd's
("'Plaintiff") Motion to Remand (Dkt. No. 5)
and Defendant Wells Fargo Bank, N.A.'s
("Defendant") Motion to Dismiss (Dkt. No. 4). For
the reasons set forth below, Plaintiff's Motion to Remand
(Dkt. No. 5) will be DENIED, and Defendant's Motion to
Dismiss (Dkr. No. 4) will be DENIED.
following allegations are taken solely from Plaintiff's
Complaint. Dkt. No. 1-1. Plaintiff asserts that at various
times in August 2009, Defendant published false statements
regarding Plaintiff's indebtedness. Id. p. 127
¶ 3. Plaintiff asserts that these statements adversely
affected his ability to obtain a loan. Id. ¶ 5.
Plaintiff further asserts that he notified various
third-party credit reporting agencies ("CRA") that
these statements were false, but Defendant failed to correct
the faulty information. Id. ¶ 7. It appears
that all of these claims are brought under the Fair Credit
Reporting Act ("FCRA") and are therefore subject to
originally filed this action on September 4, 2009 in Glynn
County State Court. Dkt. No. 1-1 p. 6. At that time, the only
Defendant was Wells Fargo Bank, Inc. ("WFBI"). The
Sheriff's Office served process on a WFBI employee.
Id. p. 9. WFBI did not make an appearance before the
state court and default judgment was granted in favor of
Plaintiff on November 5, 2014. Id. p. 17.
April 5, 2016, Defendant moved to set aside the judgment on
the bases that WFBI was a non-existent entity and Defendant
was not even aware of the suit until 2015. The state court
set aside its previous judgment, finding WFBI did not exist
as a separate entity and that the WFBI employee was not an
authorized agent of Defendant. Id. p. 104. On August
17, 2016, Plaintiff moved to add Defendant as a party in the
state court action. Id. p. 110. The state court
granted this request, though without elaboration.
Id. p. 111. Defendant ultimately removed this action
to this Court on November 10, 2016. Dkt. No. 1.
Plaintiff's Motion to Remand
Court first considers Plaintiff's Motion to Remand. Under
28 U.S.C. § 1441(a), a defendant in a case originally
filed in state court may remove the case to federal district
court if the district court could have exercised original
jurisdiction. Under 28 U.S.C. § 1447(c), however, the
case must be remanded to state court "[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction."
sole argument in favor of remand is that 28 U.S.C. § 144
6(b) requires remand because Defendant was served with this
action in state court in September 2009, but did not remove
until November 10, 2016. Dt. No. 5-1 p. 1. Therefore,
Plaintiff asserts that removal was untimely. Under 28 U.S.C.
§ 1446(b), notice of removal must
be filed thirty days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within thirty days after
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
this rule, the Eleventh Circuit has found that "a
defendant has no obligation to participate in any removal
procedure prior to his receipt of formal service of judicial
process." Bailey v. Janssen Pharmaceutics,
Inc., 536 F.3d 1202, 1208 (11th Cir. 2008). Therefore,
the Court looks to when Defendant received formal service of
process to determine if Defendant's removal was timely.
It appears that Plaintiff's original complaint was
actually filed on September 9, 2009. Dkt. No. 1-1. The record
reflects that Defendant was formally served on October 12,
2016. Dkt. No. 1-1 p. 130. Defendant filed its notice of
removal on November 10, 2016 (Dkt. No. 1) - within the 30-day
deadline. Therefore, Defendant timely removed this matter,
and Plaintiff's Motion to Remand must be denied.