Hickman v. Alpine Asset Mgmt. Grp., LLC

• Decision Date: 29 January 2013
• Docket Number: No. 11–1236–CV–S–MJW.,11–1236–CV–S–MJW.
• Citation: 919 F.Supp.2d 1038
• Parties: Joy HICKMAN, Plaintiff, v. ALPINE ASSET MANAGEMENT GROUP, LLC, Defendant.
• Court: U.S. District Court — Western District of Missouri

919 F.Supp.2d 1038

Joy HICKMAN, Plaintiff,

v.ALPINE ASSET MANAGEMENT GROUP, LLC, Defendant.

No. 11–1236–CV–S–MJW.

United States District Court,

W.D. Missouri,

Southern Division.

Jan. 29, 2013.

Donald Brown, Douglas, Haun & Heidemann, Bolivar, MO, for Plaintiff.

Charles L. Litow, Litow & Pech, PC, Cedar Rapids, IA, Mikki L. Copeland, McDowell, Rice, Smith & Buchanan, PC, Kansas City, MO, for Defendant.

ORDER

MATT J. WHITWORTH, United States Magistrate Judge.

On October 1, 2012, plaintiff Joy Hickman (hereinafter “Hickman”) filed a motion to alter, amend or vacate order on motion for summary judgment and motion to remand. On October 18, 2012, defendant, Alpine Asset Management Group, L.L.C. (hereinafter “Alpine”), filed suggestion in opposition. Plaintiff filed a reply in support of her motion on November 5, 2012.

Hickman's motion argues that federal question jurisdiction was not established in this case, and therefore, removal of this case by Alpine was improper. Hickman seeks for this Court to vacate its order granting defendant Alpine's summary judgment motion, and to remand this case to state court for further proceedings.

Background

On December 9, 2011, Alpine filed a notice of removal with this Court. The notice of removal was filed pursuant to 28 U.S.C. § 1441. Alpine stated in support of removal that the only remaining claims in the state court action were that of Hickman against Alpine, which gave this Court federal question jurisdiction. Specifically Alpine asserted that it had dismissed its claims against Hickman in the state court proceedings, and that Hickman's counterclaims against Alpine, which included allegations that Alpine had violated the Federal Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., were the only remaining claims in the state court case. Alpine asserted that such claims against it provided a proper basis for federal jurisdiction under 28 U.S.C. § 1331. Hickman did not file any opposition to the removal of the action from state court to federal court.

On December 21, 2011, Alpine filed a motion seeking realignment of the parties. In support of the motion, Alpine asserted that at the time this case was removed, the only claims in the state court case were that of Hickman against Alpine. Specifically, Alpine stated it had dismissed its claims against Hickman in the state court proceeding prior to removal, and that despite such dismissal, Hickman continued with her claims against Alpine. Accordingly, Alpine requested that Hickman be properly designated as the plaintiff in this federal action, and Alpine designated as the defendant. Hickman filed no objection to the motion. Upon consideration, this Court granted Alpine's motion on April 16, 2012, noting Hickman's failure to file an objection to the request and case law which supported the realignment.

On June 6, 2012, Alpine filed a motion for summary judgment. On July 9, 2012, Hickman filed suggestion in opposition, and Alpine filed reply suggestions in support on July 26, 2012. Upon review, this Court granted Alpine's motion for summary judgment finding there was no dispute of material fact, and that as a matter of law, Alpine had not violated the Fair Debt Collection Practices Act as alleged by Hickman.

Discussion

The burden rests with Alpine to demonstrate removal in this case was proper. In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8th Cir.1993). Traditionally, any doubts as to the propriety of removal are resolved in favor of state court jurisdiction. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir.2007). However, federal courts should “be equally vigilant to protectthe right to proceed in Federal court as to permit the state courts, in proper cases to retain their own jurisdiction.” Wecker v. Nat'l Enameling & Stamping Co., 204 U.S. 176, 186, 27 S.Ct. 184, 51 L.Ed. 430 (1907).

In the case at hand, the sole pending issue at the time of removal was a question regarding the application and interpretation of federal law, specifically the Federal Debt Collection Practices Act (FDCPA). The only allegations were claims Hickman asserted against Alpine. Based on these facts, as discussed in detail below, this Court finds that this Court has subject matter jurisdiction in this case and the order granting summary judgment was properly entered.

Removal/Federal Question Jurisdiction

Whether removal was proper is based on statutory interpretation.

Section 1441(a), Title 28, United States Code, states that generally “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ..., to the district court....”

Sections 1331–32 of Title 28 provide that the federal courts have original jurisdiction of all civil actions arising under the Constitution and laws of the United States, or where there is a diversity of citizenship between the parties with an amount in controversy exceeding the sum or value of $75,000.

Sections 1441, et seq., provide the specifics governing the requirements and procedure for removal of a state court action to federal court. These sections state that a defendant may remove a civil action from state court by filing a notice of removal within 30 days after 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. If the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Section 1447 provides the procedure to be followed after removal. This procedure includes the requirement that “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Section 1447(c).

In applying the statutory requirements for removal to the present case, this Court finds that Alpine followed the correct procedure as set forth by statute in removing this case to federal court. Alpine properly asserted a basis for federal court jurisdiction by asserting federal question jurisdiction, pursuant to section 1331. Specifically, Alpine alleged that after dismissing all of its claims in the state court action, Hickman continued with her claims against Alpine, alleging violation of federal law under the Fair Debt Collections Act (FDCPA), 15 U.S.C. § 1692, et seq. Alpine alleged that this sole remaining claim of Hickman's against Alpine alleging violation of the FDCPA made the claims removable to federal court. See Watson v. NCO Group, Inc., 462 F.Supp.2d 641, 646 (E.D.Pa.2006) (federal courts have original jurisdiction to entertain claims arising under the FDCPA). While Hickman now contests the removability of her FDCPA claims against Alpine, she does not contest these facts or that a claim under the FDCPA presents federal question jurisdiction.

Hickman argues that the litigation history in this case forbids removal because removal jurisdiction cannot be based on a federal question asserted in a claim that was originally made as a counterclaim. While this general principle is correct, Hickman fails to account for the unique facts of this case that make application of the law to this case different.

In this case, although Hickman's FDCPA claims against Alpine were originally counterclaims made by Hickman against Alpine in a state court debt collection proceeding and, therefore, were not initially removable, the nature of these claims changed when Alpine dismissed all claims against Hickman and Hickman continued with her claims against Alpine. When Hickman's claims against Alpine seeking damages were the only claims in the pending state court case, the original state court designations of Alpine as the plaintiff and Hickman as the defendant became nominal only. At this point, Hickman was substantively the plaintiff and Alpine was substantively the defendant. Section 1441(a) provides that a defendant may remove a case from state court to federal court; the statute does not state that a party who was previously a plaintiff in a state court case cannot become a defendant in a state court action where the facts resemble this case. Hickman's argument that her claims against Alpine remained counterclaims, despite Alpine dismissing all its claims in the state court case, is not persuasive. See Stewart v. Bureaus Investment Group # 1, 2011 WL 2313213 (M.D.Ala. June 10, 2011) (“removal by a realigned defendant based upon a pleading originally filed as a counter-complaint is proper”; motion to remand denied). Should this case have continued in state court, there is no question that the state court would have granted a motion to realign the parties to properly designate the interest of Hickman as the plaintiff and Alpine as the defendant.

Hickman's cite to Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941), does not support her argument that the sole remaining FDCPA claim in this case was not removable. The Shamrock case established the general rule of law for removal under section 1441(a) which restricted removal to defendants. However, this restriction that defendants were the only parties which could remove a case to federal court did not establish that once a plaintiff in a state court action, always a plaintiff, or that once a defendant always a defendant. Rather, the facts of the Shamrock case stand for the rule of law that when a plaintiff in a state court action is a true plaintiff with claims pending against the defendant of the state action, the plaintiff cannot remove his or her...