Washington v. Direct Gen. Ins. Agency, CIV.A. No. 3:99-CV-883WS.

• Decision Date: 29 August 2000
• Docket Number: CIV.A. No. 3:99-CV-883WS.
• Citation: 130 F.Supp.2d 820
• Parties: D'Angelo WASHINGTON, Plaintiff, v. DIRECT GENERAL INSURANCE AGENCY, INC.; Bob Bates; and Ford Motor Credit Company, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

130 F.Supp.2d 820

D'Angelo WASHINGTON, Plaintiff, v. DIRECT GENERAL INSURANCE AGENCY, INC.; Bob Bates; and Ford Motor Credit Company, Defendants.

CIV.A. No. 3:99-CV-883WS.

United States District Court, S.D. Mississippi, Jackson Division.

August 29, 2000.

Halbert E. Dockins, Jr., Melvin L. Pace, Law Offices of Halbert E. Dockins Jr., Ellie F. Turnage, Dockins Law Office, Jackson, MS, for D'Angelo Washington.

Kent Elliot Smith, Michael L. Dulaney, Webb, Sanders, Balducci & Smith, P.L.L.C., Oxford, MS, Ross E. Henley, Henley, Lotterhos & Henley, Jackson, MS, for Direct General Insurance Agency, Inc., Bob Bates and Ford Motor Credit Company.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before this court is plaintiff's motion to remand this lawsuit to the Circuit Court of Hinds County, Mississippi, where it was filed originally. Plaintiff here is D'Angelo Washington. The defendants are Direct General Insurance Agency, Inc.; Bob Bates; and Ford Motor Credit Company. After plaintiff filed this lawsuit in state court, the defendants, pursuant to Title 28 U.S.C. § 1441,¹ removed this action to this federal forum on the basis of federal question jurisdiction. More specifically, in their removal papers, defendants contend that plaintiff's complaint has asserted a cause of action under the Fair Credit Reporting Act (FCRA), Title 15 U.S.C. § 1681, et seq., a federal statute which would provide this court subject matter jurisdiction under Title 28 U.S.C. § 1331.²

In his motion to remand, filed under the auspices of Title 28 U.S.C. § 1447(c),³ plaintiff argues that his lawsuit should be sent back to state court because his complaint relies solely upon state law causes of action and, further, that nowhere in his complaint does he mention the Fair Credit Reporting Act.

This court, nevertheless, is persuaded by defendants' argument. While plaintiff does not specifically mention the Fair Credit Reporting Act, plaintiff mentions instead the "Fair Faith and Credit Act" which, in the context of its usage, convinces this court that plaintiff simply misnamed the Fair Credit Reporting Act. Accordingly, this court denies plaintiff's motion to remand.

Factual Background

On May 23, 1997, the plaintiff entered into an automobile lease agreement with defendant Ford Motor Credit. The plaintiff leased a 1997 Ford Expedition utility vehicle and was set up with a monthly payment plan of $365.20.

On August 6, 1997, the plaintiff obtained automobile insurance from defendant, Direct General Insurance, through its agent, defendant Bob Bates. This insurance policy subsequently was canceled upon plaintiff's failure to pay the premium. Thereafter, the plaintiff entered into a second contract with defendant Bob Bates, who, at all times pertinent hereto, was an agent of defendant Direct General Insurance Company. The second automobile insurance contract was executed on December 31, 1997, and plaintiff tendered a down payment at that time.

On May 15, 1998, the engine of plaintiff's truck caught fire, causing a part of the vehicle to become engulfed in flames, which resulted in some damage to both the interior and exterior of the truck. The defendants, Ford Motor Credit and Direct General Insurance, went out to the home of the plaintiff and each made an assessment on the damages done to the truck. Subsequent to Direct General's investigation, the plaintiff was informed that his insurance had been canceled effective February 11, 1998, due to insufficiency of down payment. Plaintiff contends that he was never informed by the insurance agent, Bob Bates, that the down payment tendered by the plaintiff had been insufficient to bind coverage on plaintiff's truck.

On August 27, 1997, Ford Motor Credit repossessed the truck from the plaintiff's home, for plaintiff's alleged failure to pay the required monthly lease payment. The truck was then taken to a local Ford dealership in Lawrence, Kansas, and later to Insurance Auto Auction in Kansas. On September 23, 1998, the truck was sold for $9,900.00.

The plaintiff asserts that he was neither informed of the sale of the vehicle, nor given an opportunity to purchase the vehicle. Further, charges plaintiff, he was informed that his credit report showed a delinquent balance of $17,162.41 owed to Ford Motor Credit. As a result, says plaintiff, he was unable to purchase the vehicle. According to plaintiff, this action by Ford Motor Credit has resulted in the plaintiff's inability to access credit for any other purchases or other financial business.

Plaintiff's allegations relative to his contention that Ford Motor Credit improperly reported a delinquent balance due under the lease agreement to credit bureaus is set forth in ¶ 15 of the Complaint as follows:

15. Upon attempting to purchase another vehicle later that year, the plaintiff, D'Angelo Washington, was informed that his credit report showed a delinquent balance of $17,162.41 owed to Ford Motor Credit; as a result, the plaintiff was unable to purchase the vehicle. Such actions by Ford Motor Credit have resulted in the plaintiff's inability to access credit for any other purchases or other financial business.

The Complaint goes on to assert in ¶ 23 that certain actions of the defendants constituted gross negligence, including the following:

c. their intentional, deliberate, and willful failure to properly adhere to the terms of the Fair Faith and Credit Act.

d. their intention, deliberate, and willful damaging of plaintiff's credit rating.

The Complaint concludes that plaintiff has been damaged by the actions of defendants because: (1) plaintiff "has been unable to secure credit or make purchases that require a good credit rating;" (2) plaintiff "has a negative credit record which will remain a part of his permanent financial record for the next seven years, thereby rendering him incapable of securing credit or making purchases, and possibly being denied housing and/or employment for that period of time;" and (3) plaintiff has a "negative credit record that severely hinders his chances of procuring federal financial aid to help finance his educational endeavors." (Complaint ¶¶ 25-27).

Standards for Removal

District courts are granted federal question jurisdiction of all civil claims "arising under the Constitution, laws, or treaties of the United States." Title 28 U.S.C. § 1331. An action is removable under Title 28 U.S.C. § 1441(b) if the district court would have had original federal question jurisdiction of the matter when filed. In other words, removal is appropriate if the action could have been filed originally in federal court. See Aaron v. National Union Fire Ins. Co. of Pittsburg, 876 F.2d 1157, 1160 (5th Cir.1989), reh'g denied, 886 F.2d 1314 (5th Cir.1989) (defendant may remove state court action if action could have been filed originally in federal court); Merkel v. Federal Express Corp., 886 F.Supp. 561, 564 (N.D.Miss. 1995) (removal is proper if the court would have had original jurisdiction to hear the matter if initially filed in federal court as opposed to state court).

Removability is to be determined from the face of the complaint as it exists at the time of removal. Under the "well-pleaded complaint rule," federal courts have original or removal jurisdiction over only those cases in which a well-pleaded complaint establishes that the plaintiff's remedy depends on resolution of a substantial question of federal law, or that the cause of action is created under federal law. Herrington v. J.R. Pounds, Inc., 874 F.Supp. 133, 136 (S.D.Miss.1995). Thus, the court must examine the complaint filed by plaintiff to determine if removal is appropriate.

This court is required to remand any action over which it has no subject matter jurisdiction at any time before final judgment. Sherron v. Private Issue by Discover, A Division of Novus Services, Inc., 977 F.Supp. 804, 805 (N.D.Miss.1997); Buchner v. F.D.I.C., 981 F.2d 816, 819 (5th Cir.1993); Title 28 U.S.C. § 1447. An objection to the subject matter jurisdiction of this court may be raised by any party at any time in the course of these proceedings and may even by raised by the court sua sponte. MCG Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). Title 28 U.S.C. § 1447. This court has no discretionary authority to remand federal law actions to a state court. Burks v. Amerada Hess Corp., 8 F.3d 301, 304 (5th Cir.1993); Buchner, 981 F.2d at 817; In re Wilson Indus., 886 F.2d 93, 96 (5th Cir.1989).

The defendant is the party who bears the burden of establishing that the removal to federal court was proper. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.1993); LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.1992); B., Inc. v. Miller Brewing Company, 663 F.2d 545, 549 (5th Cir.1981). Further, the removal statutes are strictly construed, and all doubts will be resolved against a finding of proper removal. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979).

Analysis

The sole interrogatory here is whether plaintiff's complaint asserts a claim under the Fair Credit Reporting Act, Title 15 U.S.C. § 1681, et seq., ("FCRA"). This court has original federal question jurisdiction over actions brought under the FCRA without regard to the amount in controversy, Title 15 U.S.C. § 1681p. Thus, actions brought in state court under the FCRA are removable to federal district court. See Lockard v. Equifax, Inc., 163 F.3d 1259 (11th Cir. 1998). So, here, if plaintiff's complaint asserts a FCRA claim, then defendants properly removed this lawsuit from state court to this federal forum.

In his memorandum brief in support of his motion to remand, plaintiff argues that federal question jurisdiction is lacking here because the face of his complaint shows no reliance upon any federal law, but rather defendants' misdeeds based only upon state substantive law. Plaintiff argues on pages 3 and...