Fds Restaurant, Inc. v. All Plumbing, Inc., Service, Parts, Installation

• Court: District Court, District of Columbia
• Decided: September 14, 2012
• Docket: Civil Action No. 2012-0394
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) FDS RESTAURANT, INC., ) ) v. ) Civil No. 12-394 (RMC) ) ALL PLUMBING INC., SERVICE, ) PARTS, INSTALLATION and KAVIR ) SHAFIK, ) ) Defendants. ) )

OPINION AND ORDER

Plaintiff moves to remand to D.C. Superior Court. Because the removal was not

timely, the motion will be granted.

A notice of removal must be filed “within thirty days after the receipt by defendant

. . . of a copy of the initial pleading. 28 U.S.C. § 1446(b). The defendants in a removal action

bear the burden of proving federal court jurisdiction. Bhagwanani v. Howard Univ., 355 F. Supp.

2d 294, 297 (D.D.C. 2005). Federal courts strictly construe the scope of removal jurisdiction.

Id.

In this case, Plaintiff filed a complaint in D.C. Superior Court on December 2, 2011

alleging that Defendants violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §

227, by sending unsolicited advertisements by facsimile. 1 Defendants did not remove this action

until March 9, 2012, relying on an exception to the 30-day rule:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant,

1 Plaintiff has moved to certify this case as a class action. See Notice of Removal [Dkt. 1], Ex. D (Compl.) & Ex. E (Mot. to Certify Class Action). through service or otherwise, of a copy of an amended pleading motion, order, or other paper from which it may be first ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b) (emphasis added). Defendants assert that this case did not become

removable until after the Supreme Court ruled in Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740

(2012). Before Mims, district courts in this Circuit deferred to the majority of the federal circuits

in rejecting federal question jurisdiction over TCPA claims. See, e.g., Kopff v. World Research

Grp, LLC, 298 F. Supp. 2d 50, 55 (D.D.C. 2003). Mims clarified that federal courts and state

courts have concurrent jurisdiction over private TCPA claims. 132 S. Ct. at 747.

The “order or other paper” clause in § 1446(b) generally refers to documents

generated in state court litigation. See, e.g., Akin v. Ashland Chem. Co., 156 F.3d 1030, 1035-36

(10th Cir. 1998) (case became removable when plaintiff answered interrogatories indicating that

alleged injuries occurred on an Air Force Base and federal jurisdiction applied). A judicial

decision in another case is not an “order or other paper,” see Dudley v. Putman Inv. Funds, 472 F.

Supp. 2d 1102, 1110 (S.D. Ill. 2007), 2 except in limited circumstances where the same defendant

is present in both actions. See Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 267 (5th Cir.

2001).

The Mims decision is not an “order or other paper” under § 1446(b). It is not a

document generated in the Superior Court litigation and it is not an order in another case in which

Defendants were a party. Further, while Mims clarified that concurrent federal jurisdiction

applied to TCPA claims, the Mims decision recognized, but did not create, federal jurisdiction.

2 See also Coman v. Int’l Playtex, Inc., 713 F. Supp. 1324, 1327 (N.D. Cal. 1989) (amendment of jurisdictional statute does not constitute an “order or other paper” permitting removal under § 1446(b); Martropico Compania Naviera S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina), 418 F. Supp. 1035, 1037-38 (S.D.N.Y. 1977) (same).

-2- Critchfield Physical Therapy, P.C. v. The Taranto Group., Inc., No. 12-2087, 2012 WL 1298361,

*2 (D. Kan. Apr. 16, 2012). “The release of a Supreme Court decision clarifying that claims

under the TCPA can justify federal question jurisdiction does not constitute a new basis for

removal under 28 U.S.C. § 1446.” Id. at *3. To the contrary, jurisdiction is determined based on

the facts as they existed at the time the case was filed. Grupo Dataflux v. Atlas Global Group,

L.P., 541 U.S. 567, 570-71 (2004). Subject matter jurisdiction exists for removal purposes where

a case involves a federal question “arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. The basis for federal jurisdiction here is the TCPA, a federal statute

alleged on the face of the complaint.

Even if the Court were to find that Mims was a triggering event for the purpose

removal, Defendants still missed the 30-day deadline. Mims was decided on January 18, 2012,

and Defendants did not remove until March 9, 2012.

Defendants protest that they could not ascertain whether the case was removable

until after the D.C. Superior Court decided a motion to dismiss for lack of personal jurisdiction that

was pending at the time that Mims was decided. They allege that the Superior Court denied their

motion to dismiss on February 29, 2012, and that they properly removed within 30 days after this

date. Other courts have rejected this very argument. See Ballard v. Tritos, Inc., No. 10-cv-2757,

2010 WL 5559544, at *2 (D. Colo. Dec. 30, 2010) (§1446(b) does not permit a defendant to await

a ruling on a motion to dismiss for lack of personal jurisdiction before removing a case they know

to be removable); Griggs v. Feins, No. 09-cv-56, 2010 WL 431967, at *2 (E.D.N.C. Feb. 3, 2010)

(same). The Court adopts this reasoning and concludes that Defendants failed to timely remove

and that this case will be remanded to Superior Court.

-3- Plaintiff also seeks attorney fees under 28 U.S.C. § 1447(c), asserting that there

was no objectively reasonable basis for removal. The Court declines to order attorney fees,

finding that although Defendants did not win the day, they had a colorable claim.

For the reasons stated above, it is hereby

ORDERED that Plaintiff’s motion to remand [Dkt. 12] is GRANTED; and it is

FURTHER ORDERED that Plaintiff’s request for attorney fees is DENIED; and

it is

FURTHER ORDERED that this case is REMANDED to D.C. Superior Court.

Date: September 14, 2012 /s/ ROSEMARY M. COLLYER United States District Judge

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