Niedzinski v. Cooper
| Decision Date | 14 August 2019 |
| Docket Number | CIVIL ACTION NO. 4:19-cv-40037-TSH |
| Parties | VIVIAN NIEDZINSKI, on behalf of herself and all others similarly situated, Plaintiff, v. MR. COOPER f/k/a Nationstar Mortgage LLC, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Hennessy, M.J.
Vivian Niedzinski ("Plaintiff") filed a class action lawsuit in Worcester Superior Court alleging Mr. Cooper f/k/a Nationstar Mortgage LLC1 ("Defendant") violated Massachusetts General Laws ch. 93A, § 2 and Massachusetts Debt Collection Regulation 940 C.M.R. § 7.04(1)(f). On February 26, 2019, Defendant timely removed the instant action pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Dkt. no. 1. The stated ground for removal was diversity jurisdiction. Id. at 1. Now pending before the Court are Plaintiff's motion to remand for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447 (dkt no. 10) and Defendant's motion to dismiss the complaint and to strike its class action allegations (dkt. no. 4). The motions are fully briefed and ripe for adjudication. This Report and Recommendation issues pursuant to a referral of the above motions from District Judge Timothy S. Hillman. Dkt. no. 18. For the reasons that follow, the undersigned recommends that Plaintiff's motion be granted insofar as it seeks to remand the action to Worcester Superior Court; that Plaintiff's request for attorneys' fees andcosts in connection with its motion to remand be denied; and that Defendant's motion to dismiss the complaint and to strike the putative class claims be denied as moot and without prejudice.
Title 940 of the Code of Massachusetts Regulations, § 7.04(1)(f) prohibits, inter alia, creditors from "[i]nitiating communication with any debtor via telephone, either in person or via text messaging or recorded audio message, in excess of two such communications in each seven-day period to either the debtor's residence, cellular telephone, or other telephone number provided by the debtor as his or her personal telephone number." Such conduct "constitute[s] an unfair or deceptive act or practice." Id. § 7.04(1). The regulation implements Massachusetts General Laws ch. 93A, § 2, which renders unlawful "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
On January 25, 2019, Plaintiff filed a class action complaint in Worcester Superior Court alleging Defendant violated the above laws by calling her more than two times in a seven-day period. Dkt. no. 13-2 ("Complaint") ¶ 14 (). Plaintiff alleges that she and Defendant meet the Massachusetts Debt Collection Regulations' definitions of "debtor" and "creditor," respectively. Id. ¶¶ 5-6 (citing 940 MASS. CODE REGS. § 7.03). She brings the instant suit individually and on behalf of others similarly situated, seeking to represent the following class:
All consumers residing in the Commonwealth of Massachusetts who, within four years prior to the filing of this action [that is, January 25, 2019], received in excess of two telephone calls regarding a debt from [Defendant] within a seven-day period to their residence, cellular telephone, or other provided telephone number.
Complaint ¶ 20. She alleges that Defendant's regular business practice is to place numerous debt collection calls per week to known debtors, and that thousands of Massachusetts consumers have been affected by this practice. Id. ¶¶ 21-23.
The complaint further alleges that Defendant's harassing communications caused Plaintiff injury, including anger, anxiety, emotional distress, fear, frustration, and embarrassment. Id. ¶¶ 15-16. Additionally, the calls allegedly were distracting, inconvenient, constituted an invasion of Plaintiff's privacy, and wasted her time and energy. Id. ¶¶ 17-18.
"A case is properly removed to federal court pursuant to 28 U.S.C. § 1441(a) only if the action could originally have been brought in federal court." Toro v. CSX Intermodal Terminals, Inc., 199 F. Supp. 3d 320, 322 (D. Mass. 2016) (Hillman, J.) (citing Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002)). Where the predicate for removal is 28 U.S.C. § 1332, "the parties must be diverse in citizenship and the amount in controversy must exceed $75,000."2 Id. at 322. The amount-in-controversy calculation may include statutory multipliers of damages and statutory attorneys' fees. Id. at 322-23 (citing Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 82 (1st Cir. 2014); Velez v. Crown Life Ins. Co., 599 F.2d 471, 474 (1st Cir. 1974)). The removing party bears the burden of demonstrating that the court has subject-matter jurisdiction over the action. Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009).
A removing party's burden to satisfy the amount-in-controversy requirement is higher than that imposed on a plaintiff seeking to litigate in federal court. Lopez v. U.S. Bank Nat'l Ass'n, No. 14-cv-11944-MGM, 2014 WL 4928883, at *1 (D. Mass. Sept. 30, 2014) (citing Amoche, 556 F.3d at 49) ( "the First Circuit has determined that it is appropriate to imposeon a defendant seeking removal a higher burden of proof to establish the amount in controversy than is imposed on a plaintiff seeking to litigate in federal court"). In Amoche v. Guarantee Trust Life Insurance Co.—where the stated basis for removal was not diversity jurisdiction, but rather the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 ()—the First Circuit stated that the burden is best described as a "reasonable probability" that the amount-in-controversy threshold is satisfied. 556 F.3d at 50.
However, "[t]he First Circuit has not yet decided how heavy a burden the removing party must bear when proving the amount-in-controversy requirement" when the stated ground for removal is diversity jurisdiction. Huston v. FLS Language Ctrs., 18 F. Supp. 3d 17, 20 (D. Mass. 2014) (citing Milford-Bennington R.R. v. Pan Am Rys., Inc., 695 F.3d 175, 178-79 (1st Cir. 2012)). This Court has interpreted Amoche as suggesting that the First Circuit would have no reason to use an alternative standard when removal is predicated on diversity jurisdiction.3 Lopez, 2014 WL 4928883, at *3 n.1; see also Huston, 18 F. Supp. 3d at 21 ().
This Court utilizes the following framework to determine whether the removing party has satisfied the above standard:
First, if the jurisdictional amount is not facially apparent from the complaint, then a court need look to the notice of removal and any other materials submitted by the removing defendant. However, whether a defendant has shown a reasonable probability that the amount in controversy exceeds [the jurisdictional minimum] may well require analysis of what both parties have shown. Second, as part of the analysis of whether a removing defendant has met the standard of reasonable probability, a court may consider which party has better access to the relevantinformation. Third, a court's analysis of the amount in controversy focuses on whether a removing defendant has shown a reasonable probability that more than [the jurisdictional minimum] is in controversy at the time of removal. Fourth, any doubts in the evidence should be construed in favor of remand because the court has a responsibility to police the border of federal jurisdiction. Fifth, this preliminary determination concerning whether a defendant has met its burden should be done quickly, without an extensive fact-finding inquiry. Finally, a plaintiff's likelihood of success on the merits is largely irrelevant to the court's jurisdiction because the pertinent question is what is in controversy in the case, not how much the plaintiffs are ultimately likely to recover.
Reynolds v. World Courier Ground, Inc., 272 F.R.D. 284, 286 (D. Mass. 2011) (quotation marks and citations omitted) (alternations and emphasis in original).
Finally, because the removal statute is strictly construed, "any doubts about the propriety of removal are resolved in favor of remand to the state forum." Doe v. Access Indus., Inc., 137 F. Supp. 3d 14, 16 (D. Mass. 2015) (quoting In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liab. Litig., 76 F. Supp. 3d 321, 327 (D. Mass. 2015)); see also Kingsley v. Lania, 221 F. Supp. 2d 93, 95 (D. Mass. 2002) .
I first consider Plaintiff's motion to remand. See Doe v. McGuire, 289 F. Supp. 3d 266, 269 (D. Mass. 2018) ().
"The Court first looks to [P]laintiff's specific damage allegations to determine the amount in controversy." Huston, 18 F. Supp. 3d at 21 (citing Coventry Sewage Assocs. v. Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir. 1995)). Plaintiff's complaint does not allege amonetary damages amount, but her amended civil cover sheet claims damages of $750,000. Dkt. no. 1-1, at p. 2. In support of removal, Defendant contends that Plaintiff individually seeks more than the jurisdictional threshold amount, "particularly when in her [civil cover sheet] she purports damages of $750,000." Dkt. no. 1 ¶ 3(d). This argument is unconvincing.
As this Court observed in Toro v. CSX Intermodal Terminals, Inc., "civil cover sheets are inherently imprecise, and...
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