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Boyd v. Wells Fargo Financial Bank, Inc.

United States District Court, S.D. Georgia, Brunswick Division

April 11, 2017

MICHAEL BOYD, Plaintiff,
v.
WELLS FARGO FINANCIAL BANK, INC., and WELLS FARGO BANK, N.A. Defendants.

          ORDER

          LISA GODBEY WOOD, CHIEF JUDGE

         Pending 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.

         FACTUAL BACKGROUND

         The 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 federal jurisdiction.

         PROCEDURAL HISTORY

         Plaintiff 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.

         On 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.

         DISCUSSION

         I. Plaintiff's Motion to Remand

         The 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."

         Plaintiff's 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.

         Applying 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.

         II. Defendant's ...


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