United States District Court, N.D. Georgia
the Court is Defendant Equifax Information Services,
LLC's motion to transfer venue (Doc. No. 5), and
Plaintiff Christian Eyer's motion to remand (Doc. No.
11), following Defendant's notice of removal (Doc. No.
1). For the reasons that follow, the Court will grant
Defendant's motion to transfer venue, deny
Plaintiff's motion to remand, and close this case.
commenced this action in the Court of Common Pleas of Adams
County, Pennsylvania on June 23, 2017, by filing a praecipe
for a writ of summons, a writ of summons, and a Supreme Court
of Pennsylvania Court of Common Pleas Civil Cover Sheet.
(Doc. No. 1.) On August 24, 2017, Plaintiff filed a praecipe
to amend the writ of summons. (Id.) On September 5,
2017, Plaintiff filed an amended writ of summons.
(Id. at 40.) On November 7, 2017, Plaintiff mailed
the praecipe to amend writ of summons, the amended writ of
summons, the cover sheet, and a cover letter to Defendant.
(Id.) On February 22, 2018, Defendant was served
with the complaint, which asserts, on its face, a violation
of the Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq. (“FCRA”), stemming from an
alleged failure on the part of Defendant to disclose the
address and telephone number for Credit Karma. (Doc. No. 1-1
at 7.) Specifically, in his complaint, Plaintiff alleges
that, prior to commencement of the action, he contacted
Defendant in writing to request a copy of his consumer
report. (Id. ¶ 12.) Defendant complied with the
request and provided Plaintiff with a copy of the consumer
report, which “contained the names and addresses of
several business entities that had accessed Plaintiff's
consumer report in the last [twelve] months.”
(Id. ¶ 20.) The report indicated that Credit
Karma had accessed Plaintiff's consumer report on or
about October 23, 2016. (Id. ¶ 24.)
Consequently, Plaintiff contacted Defendant and requested in
writing the address and telephone number of Credit Karma.
(Id. ¶ 26.) According to Plaintiff, Defendant
refused to disclose the requested information. (Id.
¶ 28.) Plaintiff claims that the refusal to disclose the
address and telephone number of Credit Karma violated 15
U.S.C. § 1681g(a)(3) of the FCRA. (Id. ¶
March 12, 2018, Defendant filed a notice of removal with the
Adams County Court of Common Pleas and with the United States
District Court for the Middle District of Pennsylvania
pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. No.
1.) Shortly thereafter, on March 26, 2018, Defendant filed
the instant motion to transfer venue to the United States
District Court for the Northern District of Georgia, Atlanta
Division, pursuant to 28 U.S.C. § 1404(a) (Doc. No. 5),
together with a supporting brief (Doc. No. 6), a declaration
from Latonya Munson, (Doc. No. 6-1), and a copy of an opinion
by the United States District Court for the Eastern District
of Pennsylvania in Armstrong v. Equifax Information
Services, LLC, addressing a motion to transfer venue
(Doc. No. 6-2).
April 8, 2018, Plaintiff filed a “Response to
Defendant's Motion to Transfer Venue, ” incorrectly
docketed as an “Answer to Statement of Facts [-] Motion
to Transfer Case.” (Doc. No. 7.) Plaintiff then filed
the instant motion to remand (Doc. No. 12), to which he
appended a brief in support (Doc. No. 12-11), and several
exhibits (Doc. Nos. 12-1- 12-19). On April 24, 2018,
following a briefing extension (Doc. Nos. 8, 11), Plaintiff
filed a brief in opposition to Defendant's motion to
transfer. (Doc. No. 13) On April 25, 2018, Defendant filed a
brief in opposition to Plaintiff's motion to remand (Doc.
No. 14), and on May 11, 2018, filed a reply brief to
Plaintiff's brief in opposition to its motion to
transfer, incorrectly docketed as a brief in support of its
motion to transfer. (Doc. No. 15.) Having been fully briefed,
these motions are now ripe for disposition.
Plaintiff's Motion to Remand
motion to remand, Plaintiff argues that remand of this action
is appropriate because Defendant failed to meet the
procedural requirements for removal under 28 U.S.C. §
1446(b). (Doc. No. 12-11 at 4.) 28 U.S.C. § 1446(b)
controls the timing for removing cases from a state court to
a federal court. It provides, in pertinent part, that:
The Notice of removal of a civil action . . . shall be filed
within 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 . . . .
28 U.S.C. § 1446(b).
challenges the timeliness of Defendant's notice of
removal under Section 1446(b) on the basis that it was not
filed within thirty days of Defendant's receipt of the
amended writ of summons and the Pennsylvania Supreme Court
Coversheet that, according to Plaintiff, placed Defendant on
notice of the existence of federal jurisdiction. (Doc. No.
12-11 at 5.) In support of his argument, Plaintiff relies on
Foster v. Mutual Fire, Marine & Inland Insurance
Company, 986 F.2d 48, 54 (3d Cir. 1993), which held that
Section 1446(b) “requires defendants to file their
Notices of Removal within thirty days after receiving a writ
of summons, praecipe, or complaint which in themselves
provide adequate notice of federal jurisdiction.”
opposes Plaintiff's motion to remand. (Doc. No. 14 at 4.)
In its oppositional brief, Defendant represents that it
timely filed its notice of removal on March 12, 2018, within
thirty days of its receipt of the complaint on February 22,
2018. (Id. at 5.) According to Defendant,
Foster, “the case upon which [Plaintiff's]
entire [m]otion hinges, ” is “no longer good law,
and it has not been good law for over a decade.”
(Id. at 7, 9.) The Court agrees with Defendant. In
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999), the United States Supreme Court,
addressing whether the thirty-day removal period is triggered
“on the named defendant's receipt, before service
of official process, of a ‘courtesy copy' of the
filed complaint, ” held that “a named
defendant's time to remove is triggered by simultaneous
service of the summons and complaint, or receipt of the
complaint, ‘through service or otherwise, ' after
and apart from service of the summons, but not by mere
receipt of the complaint unattended by any formal
service.” Id. at 347-48. In Sikirica v.
Nationwide Ins. Co., 416 F.3d 214 (3d Cir. 2005), the
Third Circuit declared that the Supreme Court's decision
in Murphy Bros. implicitly overruled its holding in
Foster, and that “a writ of summons alone can
no longer be the ‘initial pleading' that triggers
the [thirty]-day period for removal under the first paragraph
of . . . [Section] 1446(b).” Id. at 223. The
Third Circuit underscored in Sikirica that it
interpreted Murphy Bros. as “requir[ing] the
filing or receipt of a complaint before the
[thirty]-day period begins, ” and acknowledged that the
“Supreme Court's use of the term
‘complaint' to mean ‘initial pleading' in
Murphy Bros. was not merely an inadvertent
accommodation of the facts.” Id. at 221-22
(emphasis in original).
by the binding authority governing removal of an action under
Section 1446(b), the Court finds that Defendant has met its
burden of showing that removal is proper. See Frederico
v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). Despite
Plaintiff's contentions to the contrary, “[t]he
initial pleading described in [Section] 1446(b) is the
complaint, not the summons, praecipe for writ of summons, or
some other document like a Civil Cover Sheet.”
Polanco v. Coneqtec Universal, et al., 474 F.Supp.2d
735, 737 (E.D. Pa. 2007). Accordingly, because ...