Powell v. Huntington Nat'l Bank
| Decision Date | 01 May 2015 |
| Docket Number | CIVIL ACTION NO. 2:13-cv-32179 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | JEREMY A. POWELL, et al., Plaintiffs, v. THE HUNTINGTON NATIONAL BANK, Defendant. |
Pending before the Court are Defendant's Motion to Certify the Court's September 26, 2014 Order for Interlocutory Review (the "Motion to Certify"), (ECF 64), Defendant's Motion to Expedite Briefing Schedule (the "Motion to Expedite"), (ECF 66), Defendant's Request for a Hearing, (ECF 90), and the Motion by American Bankers Association and Consumer Bankers Association for Leave to File a Memorandum as Amici Curiae in Support of Defendant's Motion to Certify an Interlocutory Appeal (the "Motion to File Memorandum as Amici Curiae"), (ECF 70). For the reasons discussed herein, the Court GRANTS IN PART and DENIES IN PART the Motion to Certify and DENIES AS MOOT the Motion to Expedite, the Request for a Hearing, and the Motion to File Memorandum as Amici Curiae.
Plaintiffs filed the Complaint in the Circuit Court of Kanawha County, West Virginia, on October 15, 2013. (ECF 1-1.) The Complaint alleges that Plaintiffs "bring this action on his [sic] own behalf and on behalf of a class of West Virginia consumers who have had unlawful late feescharged to their home loan accounts." (Id. ¶ 1; see also id. ¶¶ 12-16 ().) The Complaint includes two claims for relief. Count I alleges that Defendant illegally assessed late fees in violation of the terms of Plaintiffs' mortgage loan contract and West Virginia Consumer Credit and Protection Act ("WVCCPA"), Section 46A-3-112. (Id. ¶¶ 17-22.) Count II is a misrepresentation claim under Section 46A-2-127 of the WVCCPA. (Id. ¶¶ 23-24.)
On December 13, 2013, Defendant timely removed the state case to this Court. (See ECF 1.) In the notice of removal, Defendant argued this Court has diversity jurisdiction over this matter under the Class Action Fairness Act of 2005 and based on federal-question jurisdiction. (Id.) As to the latter, Defendant argued that the Complaint includes only usury claims that are completely preempted by the National Bank Act ("NBA"), 12 U.S.C. §§ 85 and 86. (Id. ¶¶ 11-28.) Defendant then moved for judgment on the pleadings. (ECF 6.)
In its Memorandum Opinion and Order, dated September 26, 2014 (the "Opinion"), the Court found that "Plaintiffs' claims are not pre-empted by the NBA" and, "[c]onsequently, Defendant improperly removed this case from state court on the basis of federal question jurisdiction." (ECF 57 at 12.) However, the Court found that it does have diversity jurisdiction over this matter under 28 U.S.C. § 1332(d). (Id. at 12-13.)
On October 7, 2014, Defendant filed the Motion to Certify,1 (ECF 64), and the Motion to Expedite, (ECF 66). On October 9, 2014, the American Bankers Association and the ConsumerBankers Association filed the Motion to File Memorandum as Amici Curiae. (ECF 70.) Plaintiffs subsequently filed their response to the Motion to Certify, the Motion to Expedite, and the Motion to File Memorandum as Amici Curiae on October 21, 2014, (ECF 74), and Defendant filed its reply in support of the Motion to Certify on October 28, 2014,2 (ECF 78).
"In general, appellate review is reserved for final judgments." Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., Civil Action No. 2:13-5006, 2015 WL 1599638, at *2 (S.D. W. Va. Apr. 8, 2015) (citations omitted). "[F]inality is an important component of the judicial structure, for, as a general matter, it prevents the entanglement of the district and appellate courts in each other's adjudications in an unruly and ultimately inefficient way." Evergreen Int'l (USA) Corp. v. Standard Warehouse, 33 F.3d 420, 423 (4th Cir. 1994); see also United States v. Nixon, 418 U.S. 683, 690 (1974) ; Millville Quarry, Inc. v. Liberty Mut. Fire Ins. Co., 217 F.3d 839, at *3 (4th Cir. 2000) ().
28 U.S.C. § 1292(a) provides an exception to this finality rule and states, in relevant part, that "the courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders of the district courts of the United States." Section 1292 further provides the following:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b). "Section 1292(b) is best suited for use in a dispute that involves 'a narrow question of pure law whose resolution will be completely dispositive . . . .'" Stewart v. W. Va. Emp'rs Mut. Ins. Co., Civil Action Nos. 2:09-126, 2:09-127, 2010 WL 1286623, at *1 (S.D. W. Va. Mar. 29, 2010) (quoting Difelice v. U.S. Airways, Inc., 404 F. Supp. 2d 907, 908 (E.D. Va. 2005)).
"Although courts have discretion to certify an issue for interlocutory appeal, interlocutory appeals are rarely allowed . . . [and] the movant bears the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judgment." Nat'l Cmty. Reinvestment Coal. v. Accredited Home Lenders Holding Co., 597 F. Supp. 2d 120, 122 (D.D.C. 2009) (internal quotation marks and citation omitted). Ultimately, "§ 1292(b) should be used sparingly and . . . its requirements must be strictly construed." Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989) (citation omitted).
Defendant argues—and Plaintiffs do not contest—that the Opinion involves a controlling question of law and that immediate appeal from the Opinion may materially advance the termination of this litigation. (ECF 65 at 5-6, 10-12; see ECF 74 at 2 ().) As such, the parties only dispute whether there is "substantial ground for difference of opinion" as to the controlling legal question. (See ECF 74 at 2-6; ECF 78 ().
"The question of whether there is 'substantial ground for difference of opinion' must be considered not from the perspective of the parties, but from that of the courts." Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Civil Action No. 3:12-0785, 2014 WL 4660782, at *3 (S.D. W. Va. Sept. 17, 2014) (citing Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 624 (D. Md. 2013)). "Mere disagreement, even if vehement, with a court's ruling does not establish a substantial ground for difference of opinion sufficient to satisfy the statutory requirements for an interlocutory appeal." Nat'l Cmty. Reinvestment Coal., 597 F. Supp. 2d at 122 (quoting Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 233 F. Supp. 2d 16, 20 (D.D.C. 2002)); see also Lynn, 953 F. Supp. 2d at 626 (). Additionally, "[t]hat a controlling issue of law may be an issue of first impression doesnot necessarily translate into there also being substantial ground for difference of opinion." Elk Run Coal Co., 2014 WL 4660782, at *3 (citing Lynn, 953 F. Supp. 2d at 624). "Furthermore, that a question of law is complex or difficult does not justify immediate appeal pursuant to 28 U.S.C. § 1292(b)." Id. ); see also Lynn, 953 F. Supp. 2d at 623 .
Defendant argues there is "substantial ground for difference of opinion" as to whether Sections 85 and 86 of the NBA preempt Plaintiffs' claims regarding Defendant's assessment of late fees during months Plaintiffs allege they were current on payments. (ECF 65 at 6-10; ECF 78 at 3-7.) As the Court noted in the Opinion, it is "not a novel interpretation" to find—as the Court did—that a claim regarding the practice of charging a "late fee when no late fee should be charged in the first place" is different than a claim asserting that a fee is excessive or usurious. (ECF 57 ...
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