Wass v. Amerigroup Texas, Inc., 080320 TXNDC, C. A. 4:20-cv-00445-BP

Docket NºCivil Action 4:20-cv-00445-BP
Opinion JudgeHAL R. RAY, JR., UNITED STATES MAGISTRATE JUDGE
Party NameBILLY WASS, Plaintiff, v. AMERIGROUP TEXAS, INC., Defendant.
Case DateAugust 03, 2020
CourtUnited States District Courts, 5th Circuit, Northern District of Texas

BILLY WASS, Plaintiff,

v.

AMERIGROUP TEXAS, INC., Defendant.

Civil Action No. 4:20-cv-00445-BP

United States District Court, N.D. Texas, Fort Worth Division

August 3, 2020

MEMORANDUM AND OPINION

HAL R. RAY, JR., UNITED STATES MAGISTRATE JUDGE

Before the Court are two motions: (1) Defendant's Motion to Dismiss, ECF No. 7; Plaintiff's Response, ECF No. 11; and Defendant's Reply, ECF No. 14; and (2) Plaintiff's Motion to Remand, ECF No. 9; and Defendant's Response, ECF No. 12. After considering the pleadings and applicable legal authorities, the undersigned ORDERS that Defendant's Motion to Dismiss, ECF No. 7, shall be GRANTED unless Plaintiff files an amended complaint within fourteen days from the date of this Memorandum and Opinion. Plaintiff's Motion to Remand, ECF No. 9, is DENIED.

I. BACKGROUND

In this case removed from state court, pro se Plaintiff Billy Wass (“Wass”) sued Defendant Amerigroup Texas, Inc. (“Amerigroup”) in County Court at Law No. 2 of Wise County, Texas. ECF No. 5 at 1. In his petition, Wass alleges that Amerigroup violated the Telephone Consumer Protection Act (“TCPA”) and Chapter 304 of the Texas Business and Commerce Code by calling and sending text messages to his phone even though he is on the national and Texas “do not call lists.” ECF No. 5-1 at 4, 7 (citing Telephone Consumer Protection Act, 47 U.S.C. § 227 (2020); Tex. Bus. & Com. Code §§ 304.001-304.259 (2019)). He alleges that some of the calls were “robo- calls” that did not provide an avenue for removing one's phone number from the call list. Id. at 4. Amerigroup filed a notice properly removing the case to this Court based on federal question jurisdiction under 28 U.S.C. § 1331. ECF No. 5 at 1.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. The Rules require that each claim contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). A complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 12(b)(6) motion, courts “take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff . . . and ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its face.'” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (quoting id. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

In ruling on a Rule 12(b)(6) motion, a court may rely on the complaint, documents properly attached to the complaint or incorporated by reference and matters of which a court may take judicial notice. Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). “The court may judicially notice [an adjudicative fact] that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

There exists a “well-established policy that the plaintiff be given every opportunity to state a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). It is federal policy to decide cases on the merits rather than technicalities, and thus when possible the Fifth Circuit has recommended that suits be dismissed without prejudice on Rule 12 motions. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); Hines v. Wainwright, 539 F.2d 433, 434 (5th Cir. 1976) (vacating and remanding a Rule 12(c) dismissal with instructions to the district court to dismiss without, instead of with, prejudice). As a result, courts generally allow plaintiffs at least one opportunity to amend following a Rule 12 dismissal on the pleadings. Great Plains Tr. Co., 313 F.3d at 329; see Parker v. Allstate Ins. Co., No. 3:16-CV-00892-CWR-FKB, 2017 WL 4287912, at *1 (S.D.Miss. Sept. 27, 2017) (“It is well-established that plaintiffs who fail to meet their burden on a motion for judgment on the pleadings and yet may still have a viable avenue to recover should be granted leave to amend their complaint and make their best case.” (citation and internal quotation marks omitted)); In re Online Travel Co. (OTC) Hotel Booking Antitrust Litig., 997 F.Supp.2d 526, 548-49 (N.D. Tex. 2014) (dismissing for failure to state a claim without prejudice because dismissing with prejudice would be “too harsh a sanction”).

A pro se plaintiff's pleadings are liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “‘however inartfully pleaded,' must be held to ‘less stringent standards than formal pleadings drafted by lawyers . . . .'” Id. (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). If the district court determines that a plaintiff has pleaded his or her best case, however, the court does not err in dismissing a pro se complaint with prejudice. Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)).

III. ANALYSIS

A. Amerigroup's removal notice was timely.

Amerigroup timely removed the case to this Court based on federal question jurisdiction under 28 U.S.C. § 1331. ECF No. 5 at 1. Federal courts can assert jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Wass alleges violations of 47 U.S.C. § 227 and 15 U.S.C. §§ 57a and 6102. These are federal statutes, so his suit is a civil action arising under the laws of the United States, and this Court may hear it.

Under 28 U.S.C. § 1367(a), a federal court may assert supplemental jurisdiction over state law claims that are so related to the original claims that they form part of the same case or controversy, “deriv[ing] from a common nucleus of operative fact.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). Here, in addition to Wass's TCPA claims, he alleges violations of Chapter 304 of the Texas Business and Commerce Code. Both the federal and state claims on the face of the pleadings concern the same core factual issue: telephone communications from Amerigroup to Wass. See ECF No. 5-1. The claims are sufficiently related for purposes of section 1367(a), and this Court may properly hear the state law claim under the doctrine of supplemental jurisdiction.

“A civil action filed in a state court may be removed to federal court if the claim is one ‘arising under' federal law . . . .” Allen v. Bank of Am., N.A., 5 F.Supp.3d 819, 826 (N.D. Tex. 2014) (quoting Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003)). “Section 1441(a), the general removal statute, permits ‘the defendant or the defendants' in a state-court action over which the federal courts would have original jurisdiction to remove that action to federal court.” Home Depot USA, Inc. v. Jackson, ___ U.S. ___, 139 S.Ct. 1743, 1746 (2019) (citing 28 U.S.C. § 1441). The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1). The Supreme Court has interpreted this language to mean “a named defendant's time to remove is triggered by simultaneous service of the summons and complaint . . . but not by mere receipt of the complaint unattended by any formal service.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). Unless the defendant has waived, the 30-day period under the removal statute does not begin to run until formal service of process has been made on Defendant. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 356 (1999); City of Clarksdale v. BellSouth Telecomm., Inc., 428 F.3d 206, 210 (5th Cir. 2005). The term “service of process” as used by the Supreme Court in Murphy Bros. is “defined by state law.” 526 U.S. at 356. Under Texas state law, formal service requires service of the citation. See Tex. R. Civ. P. 106(a); Soin v. JPMorgan Chase Bank, N.A., et. al., No. 4-14-1861, 2014 WL 4386003, [at] *1 (S.D. Tex. Sept. 4, 2014).

Powe v. Deutsche Bank Nat'l Tr. Co., No. 4:15-CV-661-ALM-CAN, 2015 WL 10013787, at *3 (E.D. Tex. Dec. 23, 2015), rec. adopted, No. 4:15-CV-661, 2016 WL 475181 (E.D. Tex. Feb. 8, 2016).

The facts of Powe are similar to those here. In Powe, the plaintiff sent a copy of the petition to the defendant via email on July 31, 2015, and the defendant acknowledged receipt of it. Id. at 1-3. The defendant removed the case on August 28, 2015. Id. at 1. Prior to removal, citation was not issued, and the defendant did not waive its right to service. Id. at 3. The court held that the informal email exchange between the parties did not constitute formal service. Id. Because the defendant had not...

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