Meisel v. Shade

• Decision Date: 14 June 2011
• Docket Number: Civil Action No. 3:11–CV–0080–G.
• Citation: 795 F.Supp.2d 481
• Parties: Rodney K. MEISEL, Plaintiff,v.USA SHADE AND FABRIC STRUCTURES INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

795 F.Supp.2d 481

Rodney K. MEISEL, Plaintiff,

v.USA SHADE AND FABRIC STRUCTURES INC., et al., Defendants.

Civil Action No. 3:11–CV–0080–G.

United States District Court,N.D. Texas,Dallas Division.

June 14, 2011.

Charles W. Branham, III, Todd Benjamin Goldberg, Goldfarb Branham LLP Saint Ann Court, Dallas, TX, for Plaintiff.S. Wesley Butler, Craig A. McDougal, Crouch & Ramey LLP, Jennifer L. Keefe, Jeffrey T. Prudhomme, Nicholas Alex Sarokhanian, Patton Boggs LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior District Judge.

Before the court is the motion of the plaintiff, Rodney K. Meisel (“Meisel”), to remand this case to the state court from which it was previously removed and to recover costs and attorney's fees incurred as a result of removal (docket entry 7). For the reasons set forth below, the plaintiff's motion to remand is granted, but his motion for attorney's fees is denied.

I. BACKGROUND

A. Factual Background

Meisel brings this action against USA Shade and Fabric Structures Inc. (“Shade”), U.S. Bank, N.A. (“Bank”), Jeff Sarembock (“Sarembock”), and Adam Auten (“Auten”) for libel, slander, and defamation caused by false and defamatory statements and republications that the defendants “made intentionally and/or with conscious indifference to the rights and welfare of the Plaintiff.” See generally Plaintiff's First Amended Petition (“Amended Petition”) ¶¶ 5.0–7.01, attached to Defendant U.S. Bank, N.A.'s Notice of Removal (“Removal”) as Exhibit A–25 (docket entry 1).

Meisel filed his original petition in state court on July 6, 2010, Plaintiff's Original Petition and Application for Temporary Restraining Order and Preliminary Injunction (“Original Petition”), attached to Removal as Exhibit A–2, and later amended his petition on November 29, 2010. Amended Petition. The parties engaged in extensive discovery in state court, where the case was set to begin trial in July. Plaintiff Rodney K. Meisel's Motion for Remand, Request for Expedited Briefing Schedule, and Brief in Support (“Motion”) at 14 (docket entry 7).

Bank removed this case to federal court of the basis of federal-question jurisdiction, arguing that Meisel's claims are completely preempted by the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. (“FCRA”), because “the FCRA specifically preempts state defamation actions against persons who furnish information to consumer reporting agencies, unless false information was reported with malice or willful intent to injure the consumer,” because Meisel's claims are based on Bank's conduct as a furnisher ¹—“allegedly republishing ‘false and defamatory statements to ChexSystems, Inc., a consumer reporting agency,’ ”—and because Bank “did not report that information to ChexSystems, Inc. with malice or willful intent to injure Meisel.” Removal at 2–3 ¶ 5. Bank contends that it removed this case to federal court outside of the statutory 30–day limit because “[i]t was only through discovery that U.S. Bank was able to uncover the true nature and scope of the allegations ... [because] Plaintiff subsequently identified the ‘statements' as ‘reporting,’ and the totality of his discovery responses and document production revealed that the alleged defamatory statements by U.S. Bank consisted exclusively of a U.S. Bank report to the consumer reporting agency ChexSystems....” Defendant U.S. Bank, N.A.'s Response in Opposition to Plaintiff's Motion to Remand (“Response”) at 1. Meisel contests Bank's purported basis for removal and moves to remand. See generally Motion.

B. Procedural Background

Title 28, Section 1441(a) of the United States Code permits the removal of “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. 1441(a). The statute allows a defendant to “remove a state court action to federal court only if the action could have originally been filed in federal court.” Anderson v. American Airlines, Inc., 2 F.3d 590, 593 (5th Cir.1993). Because “removal jurisdiction raises significant federalism concerns,” however, the statute must be strictly construed. Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir.1988); see also Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008). Therefore, “any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court.” Cross v. Bankers Multiple Line Insurance Company, 810 F.Supp. 748, 750 (N.D.Tex.1992) (Means, J.); see also Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). The party seeking removal bears the burden of establishing federal jurisdiction. Willy, 855 F.2d at 1164.

District courts have original jurisdiction over civil cases “arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331; Frank v. Bear Stearns & Company, 128 F.3d 919, 922 (5th Cir.1997). In determining whether a claim arises under federal law, the well-pleaded complaint rule allows a plaintiff to be the “master to decide what law he will rely upon” in pursuing his claims. The Fair v. Kohler Die & Specialty Company, 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913); see also Beneficial National Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003); Aaron v. National Union Fire Insurance Company of Pittsburg, Pa., 876 F.2d 1157, 1160–61 (5th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990). Where potential remedies exist under both state and federal law, a plaintiff may choose to proceed only under state law and avoid federal court jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Carpenter v. Wichita Falls Independent School District, 44 F.3d 362, 366 (5th Cir.1995). “There is an exception to the well-pleaded complaint rule, though, if Congress ‘so completely preempt[s] a particular area that any civil complaint raising this select group of claims is necessarily federal in character.’ ” Arana v. Ochsner Health Plan, 338 F.3d 433, 437 (5th Cir.2003) (en banc) (quoting Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63–64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)), cert. denied, 540 U.S. 1104, 124 S.Ct. 1044, 157 L.Ed.2d 889 (2004). This narrow exception—the artful pleading doctrine—permits the court to look beyond the face of the plaintiff's complaint to determine if federal law “so forcibly and completely displace[s] state law that the plaintiff's cause of action is either wholly federal or nothing at all.” Carpenter, 44 F.3d at 366–67. The artful pleading doctrine, however, is inapposite unless a defendant carries its burden of showing complete preemption. See id. at 367; see also Saia v. Universal Card Services Corporation, No. Civ.A.00–1295, 2000 WL 863979, at *2 (E.D.La. June 27, 2000).

“Complete preemption, which creates federal removal jurisdiction, differs from more common ‘ordinary preemption’ (also known as ‘conflict preemption’), which does not.” Johnson v. Baylor University, 214 F.3d 630, 632 (5th Cir.), cert. denied, 531 U.S. 1012, 121 S.Ct. 567, 148 L.Ed.2d 486 (2000). “Ordinary,” or “conflict,” preemption “arises when a federal law conflicts with state law, thus providing a federal defense to a state law claim, but does not completely preempt the field of state law so as to transform a state law claim into a federal claim.” Arana, 338 F.3d at 439. In order to establish complete preemption, a defendant must show that: (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is clear Congressional intent that the federal action be exclusive. Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.2008) (citing Anderson, 539 U.S. at 11, 123 S.Ct. 2058).

II. ANALYSIS

Meisel asserts three independent bases for remand. First, he argues that his state common law causes of action are not completely preempted by the FCRA because “[d]efamatory statements made maliciously and with the intent to injur [e] the Plaintiff are specifically excepted from the FCRA.” Motion at 13. Second, Meisel contends that, even if the FCRA does completely preempt his claims, Bank's removal of this case to federal court was untimely. Id. at 5–8. Finally, according to Meisel, Bank waived its right to remove by asserting a voluntary cross-claim after it became aware that this case was removable. Id. at 8–9; Plaintiff Rodney K. Meisel's Reply in Support of Motion to Remand and Brief in Support (“Reply”) at 5 (“US Bank filed its cross claim on January 10, 2010, eighteen days after it claims the case became removable by virtue of Meisel's discovery responses of December 23, 2010.”).

For the reasons that follow, the court finds that Meisel's claims are not completely preempted by the FCRA and the court lacks federal-question jurisdiction. Additionally, even it is assumed for the sake of argument that the FCRA does completely preempt Meisel's claims, remand of this case is proper because Bank's removal from state court was untimely. Because remand is appropriate on either of these alternate grounds, the court need not address Meisel's final contention that Bank waived its right to remove by filing a counterclaim in state court.

A. FCRA Preemption

It is undisputed that the FCRA (1) contains a civil enforcement provision, and (2) specifically grants jurisdiction to the federal courts for enforcement. 15 U.S.C. § 1681p; see also Fiume Industries, Inc. v. American Express Travel Related Services Company, Inc., No. 4:09–cv–591, 2009 WL 4667542, at *3 (S.D.Tex. Dec. 1, 2009). To resolve the complete preemption question, therefore, the court must consider whether Congress intended the federal action to be exclusive.

The FCRA contains two preemption provisions...