Escano v. Concord Auto Protect, Inc.
| Decision Date | 13 July 2021 |
| Docket Number | CV No. 21-223 MV/CG |
| Parties | RUBEN ESCANO, Plaintiffs, v. CONCORD AUTO PROTECT, INC., et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Plaintiff Ruben Escano's Motion to Remand to State Court (the "Motion"), (Doc. 11), filed April 7, 2021; Defendants Liberty Mutual Group, Inc. and Liberty Mutual Auto and Home Services, LLC's Opposition to Plaintiff's Motion to Remand, (Doc. 20), filed April 22, 2021; Defendant ForeverCar, LLC's Opposition to Plaintiff's Motion to Remand to State Court, (Doc. 22), filed April 22, 2021; Mr. Escano's Consolidated Reply to the Liberty Defendants' and ForeverCar's Opposition to Motion to Remand, (Doc. 32), filed May 27, 2021; and his Notice of Completion of Briefing, (Doc. 36), filed June 1, 2021.
On June 21, 2021, United States District Judge Martha Vazquez referred this matter to the undersigned to perform legal analysis and recommend an ultimate disposition, pursuant to 28 U.S.C. § 636(b). (Doc. 46). The Court, having considered the parties' briefing, the record, and the relevant law, RECOMMENDS that Plaintiff's Motion to Remand to State Court, (Doc. 11), be DENIED.
This case concerns a series of robocalls and robotexts transmitted to the cellular phone of Plaintiff Ruben Escano, offering vehicle service plans and extended warranties. (Doc. 1-1 at 3, ¶ 14). Over the course of a year, from approximately February 20, 2020, through February 5, 2021, Mr. Escano received at least thirty-five of these communications, thirteen of which were robocalls and twenty-two of which were robotexts. Id. These communications were sent despite Mr. Escano's registration with the National Do Not Call Registry. Id. As a result, Mr. Escano commenced this action.
On February 10, 2021, Mr. Escano, proceeding pro se, filed a complaint (the "Complaint"), (Doc. 1-1 at 1-18), in the Sixth Judicial District in Grant County, New Mexico. In the Complaint, he alleges Defendants Concord Auto Protect, Inc. ("Concord") and Alon Salman, operating under the direction of Defendants Liberty Mutual Group, Inc. and Liberty Mutual Auto and Home Services, LLC (collectively "Liberty Mutual"), transmitted the twenty-two robotexts." Id. at 5, ¶ 22. Mr. Escano alleges Defendant ForeverCar, LLC ("ForeverCar"), operating under the direction of Liberty Mutual, transmitted the thirteen robocalls. Id. at 5, ¶ 23.
Mr. Escano alleges that these communications "caused [him] concrete injuries in fact[,]" including "partial depletion of the charge of [his] cell phone's battery, a partial depletion of the lifespan of the [phone display's] LED backlight, and unwarranted wear and tear for at least both of those components." Id. at 5, ¶ 24. He further alleges these communications were "invasions of privacy that required [him] to divert attention away from . . . work and personal life." Id. at 5, ¶ 25.
Mr. Escano alleges these communications, and the resultant injuries they caused him, violated the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227, et seq. Id. at 5-14, ¶ 26-62. Accordingly, Mr. Escano seeks damages in the amount of $61,500 and treble damages in the amount of $184,500, for a total of $246,000, as well as, among other things, an injunction against Defendants. Id. at 18.
On March 12, 2021, Liberty Mutual filed a Notice of Removal (the "Notice of Removal"), (Doc. 1), on the basis of federal question jurisdiction, removing this action from the Sixth Judicial District Court in Grant County to the United States District Court for the District of New Mexico. Id. at 2, ¶ 6. Liberty Mutual indicated in the Notice of Removal that "ForeverCar . . . has consented to this Notice of Removal[,] [but that] Concord . . . and Alon Salm[a]n have not been served [with the Summons and Complaint] as of the date of this filing." Id. at 3, ¶ 11. Thereafter, Concord and Mr. Salman filed a Notice of Consent to Removal, (Doc. 14). On April 7, 2021, Mr. Escano filed the instant Motion, contending this Court lacks jurisdiction over this case. (Doc. 11).
An action initially filed in state court may be removed to federal district court if the district court has original jurisdiction. See 28 U.S.C. 1441(a). Federal courts have original jurisdiction over claims arising under the U.S. Constitution or federal law, pursuant to 28 U.S.C. § 1331. See U.S. CONST., art. III, § 2; Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).
The presence of federal question jurisdiction "is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). In other words, the plaintiff is "the master of the claim," and thus "may avoid federal jurisdiction by exclusive reliance on state law." Id. On the other hand, a plaintiff may not avoid federal jurisdiction by mere "artful pleading." Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1061 (10th Cir. 2006).
Removal statutes are strictly construed, Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), and "[a]ll doubts are to be resolved against removal," Fajen v. Found. Reserve Ins., 683 F.2d 331, 333 (10th Cir. 1982) (citation omitted). The defendant seeking removal bears the burden of establishing federal court jurisdiction "by a preponderance of the evidence." McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008). "If at any time before final judgement it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
In his Motion, Mr. Escano requests the Court remand this case back to state court. (Doc. 11 at 1). He argues this Court lacks subject matter jurisdiction over the matter for the following reasons: (1) "[T]he TCPA . . . expressly grants victims . . . the option to bring their cases in state court[,]" thus preventing defendants from then removing those cases to federal court; and (2) Mr. Escano lacks Article III standing on "a significant portion of the causes of action within this action[.]" Id. at 2. He further argues that Liberty Mutual failed to obtain consent from Concord and Mr. Salman to remove this matter to federal court. Id.
In their separate responses, both Liberty Mutual and ForeverCar contend that the TCPA "allows for concurrent federal and state jurisdiction[,]" which empowers defendants to remove such actions from state court to federal court. (Doc. 20 at 3); see(Doc. 22 at 7-8). Liberty Mutual and ForeverCar further argue that Mr. Escano has Article III standing, given the concrete injuries he alleged in the Complaint, and that Concord and Mr. Salman have consented to removal. (Doc. 20 at 4-7); (Doc. 22 at 4-7, 8-10).
First, Mr. Escano argues that, in enacting the TCPA, Congress granted plaintiffs the option to file suit in either state court or federal court. (Doc. 11 at 3-5). He contends, accordingly, that once a plaintiff has chosen state court as his forum, the defendant cannot then remove the case to federal court. Id. at 5. In response, Defendants rely on the Supreme Court's decision in Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012), which held "'that Congress did not deprive federal courts of federal-question jurisdiction over private TCPA suits []' when it allowed for concurre[nt] jurisdiction." (Doc. 20 at 3) (quoting Mims, 565 U.S. at 376). Defendants explain that, following the Mims decision, "federal courts have routinely exercised jurisdiction over TCPA cases removed from state court." Id. In his Reply, Mr. Escano agrees with Defendants about the holding in Mims, but argues the holding does not contradict his position that defendants cannot remove to federal court TCPA cases initially filed in state court. (Doc. 32 at 7-8).
The TCPA outlaws specific telemarketing practices, and it permits "person[s] or entit[ies]" aggrieved by such practices to bring private suits "in an appropriate [state court]." 47 U.S.C. § 227(b)(3). In analyzing this language in the TCPA, the Supreme Court in Mims held "that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA." Mims, 565 U.S. at 372. Justice Ruth Bader Ginsberg, writing for a unanimous Court in Mims, further considered the very issuepresented by the instant Motion: whether TCPA cases filed in state court are removable to federal court. See id. at 385-86.
In particular, the defendants in Mims, who had taken the position that the TCPA grants state courts exclusive jurisdiction over TCPA cases, argued that "if plaintiffs are free to bring TCPA claims in federal court under 28 U.S.C. § 1331, then defendants sued in state court would be equally free to remove those cases to federal court under 28 U.S.C. § 1441." Id. at 386. The Mims defendants warned that "defendants could use removal as a mechanism to force small-claims-court plaintiffs to abandon suit rather than fight it out in the more expensive federal forum." Id. (internal quotations omitted). Justice Ginsberg rejected this "floodgate argument[,]" explaining that in the seven years since the Seventh Circuit held that the TCPA confers concurrent jurisdiction on state and federal courts, only 65 cases in the Seventh Circuit were removed from state court to federal court, and all were class actions. Id. at 386. Of particular relevance here, Justice Ginsberg noted in dicta that "[w]hen Congress wants to make federal claims instituted in state court nonremovable, it says just that." Id. at 386, n.15.
Since the Mims decision, neither this District, this Circuit, nor any other circuit has considered directly whether TCPA cases may be removed from state court to federal court. However, it is noteworthy that many TCPA cases have been removed from state court to...
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