Palmer v. Nissan Fin.

• Decision Date: 13 August 2019
• Docket Number: Civil Action No. 3:18-CV-3146-N(BH)
• Parties: DARIUS J. PALMER, Plaintiff, v. NISSAN FINANCE, NMAC, EXPERIAN CORP., EQUIFAX, TRANSUNION, INNOVIS DATA SOLUTIONS, ANONYMOUS ATTORNEY 1, ANONYMOUS BUSINESSES CLAIMING TO BE CREDITORS, Defendants.
• Court: U.S. District Court — Northern District of Texas

DARIUS J. PALMER, Plaintiff, v. NISSAN FINANCE, NMAC, EXPERIAN CORP., EQUIFAX, TRANSUNION,INNOVIS DATA SOLUTIONS, ANONYMOUS ATTORNEY 1,ANONYMOUS BUSINESSES CLAIMING TO BE CREDITORS, Defendants.

Civil Action No. 3:18-CV-3146-N(BH)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

August 13, 2019

Referred to U.S. Magistrate Judge¹

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Before the Court are Defendant Innovis's Motion to Dismiss or, in the alternative, for a More Definite Statement, filed November 30, 2018 (doc. 6); Defendant Trans Union LLC's 12(B)(6) Motion to Dismiss Plaintiff's Complaint, filed December 5, 2018 (doc. 11); Defendant Experian Information Solutions, Inc.'s Motion for Judgment on the Pleadings, filed December 18, 2018 (doc. 16); and the plaintiff's Motion to Strike, Overrule, and Deny Defendants Motion to Remove and to Remand and Proceed Regarding Substantive and Common Law Jural Rights Protections, filed January 8, 2019 (doc. 24). Based on the relevant filings and applicable law, the plaintiff's motion should be GRANTED, and the defendants' motions should be DENIED as moot.

I. BACKGROUND

On October 22, 2018, Darius J. Palmer sued Nissan Finance, NMAC, Experian Corp. (Experian), Equifax, Transunion, Innovis Data Solutions (Innovis) (collectively Defendants), "Anonymous Attorney 1" (Attorney), and "Anonymous Business Claiming to be Creditors"(Business), in the 422nd District Court of Kaufman County, Texas, alleging that there is an invalid lien on his vehicle, and that information about that lien is improperly included in his credit report. (doc. 1-1 at 2-16.)² His state court petition states:

This is a pre-suit activities and 'self-help/private administrative processes' /action intended to REVIEW THE TRANSACTIONS AND INQUIRE INTO THE RECORDS APPERTAINING TO OBTAIN DECLARATION OF THE RIGHTS, DUTIES, AND LEGAL RELATIONS OF THE PARTIES INVOLVED in a CREDIT REPORTING EVENT AND CREDITOR-DEBTOR TRANSACTION where Plaintiff has notified the Defendants to cease and desist unless certain foundational documents to verify and validate the existence of enforcement and collection authority and other matters precedent to collections and claims of default AND HOPEFULLY TO THEN GAIN THE RELEASE OF ALL LIENS AND ENCUMBRANCES ON TITLE AND ADVERSE REMARKS, AND FOR DAMAGES - IF ANY - [HYBRID COMBINED COMMON LAW, DECLARATORY RELIEF, FAIR CREDIT REPORTING ACT AS IMPLEMENTED AS STATE LAW AND CONSUMER PROTECTIONS, STATE FAIR DEBT COLLECTION LAW, AND CONSUMER PROTECTION LAWS PRE-SUIT ACTIVITIES AND 'SELF-HELP/PRIVATE ADMINISTRATIVE PROCESSES'].

(Id. at 3-4 (formatting in original)). He seeks a "$7,500.00 Judgment" against Experian, Equifax, Transunion, Innovis, and "the creditor(s) reporting adverse information and not authorizing removal, all severally and interchange[a]bly," as well as a "$2,500.00 Judgment" against their defense counsel "jointly and interchange[a]bly." (Id. at 10.) He also seeks a temporary restraining order (TRO) "enjoining any further collection and/or reporting activities . . . regarding any claims of lien and interest in title by Nissan Finance Persons," an unspecified TRO against "Nissan Finance Persons," and declaratory judgment as to "the rights, duties, and legal relations of the parties to these opposing interests and pre-suit activities and 'self-help/private administrative processes.'" (Id.)

On November 28, 2018, Experian and Innovis removed the action, asserting federal questionjurisdiction under 28 U.S.C. § 1331. (See doc. 1.)³ They contend that Plaintiff asserts claims under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq. (Id. at 2.)

On November 30, 2018, Innovis moved to dismiss Plaintiff's claims, or alternatively, for a more definite statement. (doc. 6). Transunion also moved to dismiss his claims on December 5, 2018, and on December 18, 2018, Experian moved for judgment on the pleadings. (docs. 11, 16.) Plaintiff did not respond to the motions, but instead moved on January 8, 2019, to strike Defendants' motions and to remand this action. (doc. 24.) Defendants jointly responded to the motion on January 29, 2019 (doc. 26), but he did not reply.

II. MOTION TO REMAND

Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over that action. 28 U.S.C. § 1441(a). A district court's original jurisdiction is of two types: federal question jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Federal question jurisdiction exists in all civil actions arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Diversity jurisdiction exists in all civil actions where the amount in controversy exceeds $75,000.00, exclusive of interests and costs, and there is diversity of citizenship between the parties. Id. § 1332(a). When a civil action is removed solely under 1441(a), "all defendants who have been properly joined and served must join in or consent to the removal of the action." Id. at § 1446 (b)(2).

"Section 1447(c) provides two grounds for remand: (1) a defect in removal procedure and(2) lack of subject matter jurisdiction." Burks v. Amerada Hess Corp., 8 F.3d 301, 303 (5th Cir. 1993). To determine whether it has federal jurisdiction over the removed case, the court must "consider the claims in the state court petition as they existed at the time of removal." Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Id. "This burden extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute." Fraire v. Budget Rent-A-Car of El Paso, Inc., No. EP-10-CV-338-PRM, 2011 WL 3678584, at *2 (W.D. Tex. Mar. 31, 2011) (citing Burks, 8 F.3d at 303). If there is "any doubt about the propriety of removal, [it] must be resolved in favor of remand." Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

"[W]hen a court performs its duty to verify that it has jurisdiction, it may be required to survey the entire record, including the defendant's pleadings, and base its ruling on the complaint, on undisputed facts, and on its resolution of disputed facts." Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d 806, 808 (5th Cir. 1992) (citation omitted); see also Smith v. Estate of Wagner, No. CIV A H 06-02629, 2006 WL 2729282, at *3 (S.D. Tex. Sept. 25, 2006) (explaining that a "court . . . [may] consider the defendant's notice of removal, other pleadings, and the record as of the time of removal if necessary to shed light on the plaintiff's pleadings"). "The purpose of this careful survey, however, is to shed light on the plaintiff's pleadings. The court's focus is on the plaintiff's pleadings, not the defendant's." Aquafaith, 963 F.2d at 808.

A. Procedural Defect

Plaintiff contends that removal was not proper because Defendants "waited until their timehas nearly lapsed" before removing this case to federal court. (doc. 24 at 2.) Defendants liberally construe this argument as alleging that their removal was untimely under 28 U.S.C. § 1446(b). (doc. 26 at 4-7.) They argue that because they were never properly served in the state court action, the deadline to remove this matter has not passed, so the removal was timely. (Id. at 7.)

Removal of a civil action or proceeding from a state court must occur within thirty days after a defendant receives a pleading, motion, or other paper that suggests the existence of federal jurisdiction. 28 U.S.C. § 1446(b); see generally Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). The Fifth Circuit has interpreted § 1446 to mean that "a defendant's right to removal runs from the date on which it is formally served with process." Thompson v. Deutsche Bank Nat. Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014). Until formally served with process, a defendant has no obligation to appear in court or defend an action before it, and the thirty-day removal period does not begin to run until that time. Id. (citing Michetti Pipe, 526 U.S. at 350). "[T]he term 'service of process' is defined by state law." Id. at 304 (quoting City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d 206, 210 (5th Cir. 2005)).

Here, the state court docket sheet states that the defendants were "Unserved." (See doc. 5-3 at 1.)⁴ The officer's return on each of the citations to the defendants is blank, and there is no certified mail return receipt or other proof of service in the state court record. (See doc. 1-1 at 19-31.)⁵ Plaintiff did not dispute the allegation that Defendants were properly served. Because there is no evidence that Defendants were ever properly served, the thirty-day removal period has not yet begun. See Thompson, 775 F.3d at 304; see, e.g., Shaffer v. Green Earth Techs., Inc., No. SA-CV-00451-XR, 2017 WL 2628883, at *2 (W.D. Tex. June 19, 2017) ("In short, under the Supreme Court's decision in Michetti Pipe and the Fifth Circuit's decision in Thompson, the 30-day time limit to remove runs from the date of formal service of process, and the record here shows that Plaintiff never served Defendant with formal process. This failure prevents the 30-day time limit from running against Defendant, and for this reason, removal is timely in this regard.").

Defendants' removal of the case to federal court was not untimely, and remand on this basis is not warranted.

B. Jurisdictional Defect

Plaintiff argues that this case should be remanded because he did not intend for the case to be tried in federal court, and the removal "is barred by the rule that the Litigant is the master of their [sic] complaint and may freely choose their [sic] venue and...