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Eyer v. Equifax Information Services, LLC

United States District Court, N.D. Georgia

May 31, 2018



          Kane Judge

         Before 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.

         I. BACKGROUND

         Plaintiff 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. ¶ 22.)

         On 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).

         On 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.


         A. Plaintiff's Motion to Remand

         In his 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).

         Plaintiff 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.”

         Defendant 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).

         Informed 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 ...

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