Mikesell v. FIA Card Services, N.A.

936 F. Supp. 2d 1327, 2013 WL 1365739, 2013 U.S. Dist. LEXIS 49008
CourtDistrict Court, M.D. Florida
DecidedApril 4, 2013
DocketCase No. 2:12-cv-606-FtM-29DNF
StatusPublished

This text of 936 F. Supp. 2d 1327 (Mikesell v. FIA Card Services, N.A.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mikesell v. FIA Card Services, N.A., 936 F. Supp. 2d 1327, 2013 WL 1365739, 2013 U.S. Dist. LEXIS 49008 (M.D. Fla. 2013).

Opinion

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter comes before the Court on Plaintiffs Motion to Remand (Doc. # 10) filed on November 27, 2012. Defendants filed an Opposition (Doc. # 21) on December 14, 2012. Plaintiff asserts that the case must be remanded to state court because the Notice of Removal was untimely filed. Defendants respond to the contrary. For the reasons stated below, the Court finds that the Notice of Removal was timely, and that subject-matter jurisdiction based on diversity of citizenship exists.

Generally, any civil action brought in a State court of which the federal district court has “original jurisdiction” may be [1329]*1329removed by defendants to federal court. 28 U.S.C. § 1441(a). The “original jurisdiction” of a federal district court includes diversity jurisdiction. 28 U.S.C. § 1332(a). If the state case is removable on the face of the initial pleading, a defendant has 30 days from service of the complaint and process in which to file a notice of removal. 28 U.S.C. § 1446(b)(1). “[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).

A.

Plaintiff asserts that the Complaint was removable on its face, and therefore the 30 day period began on August 30, 2012, when defendant was served with the complaint and summons. (Doc. # 1, ¶ 7.) The Court disagrees.

The Complaint (Doc. #2) alleges that plaintiff is a resident of Lee County, Florida, defendant FIA .Card Services, N.A. (FIA) is a national banking association authorized to do business in Florida, and defendant Bank of America, N.A. (BOA) is a national banking association also authorized to do .business in Florida. (Doe. # 2, ¶¶ 2-4.) The action is “for damages in excess of $15,000, exclusive of interest, costs, and attorney’s fees,” (Id., ¶ 1.)

The Complaint further alleges that in August 2007, plaintiffs late husband applied for, received, and used a credit card from BOA. Plaintiff did not join in the application, make a separate application of her own, or use the credit card in any way. After the death of plaintiffs husband, BOA started billing plaintiff on the credit card account, and when she did not pay reported her nonpayment to the three " major credit reporting agencies. (Id., ¶¶ 9-15.) As a result, plaintiff suffered damages, including but not limited to the cancellation of her American Express account and Home Depot account, and the lowering of her Dillard’s and Discover card credit limits. (Id., ¶ 16.)

The Complaint then sets forth five state law claims. ' Count I alleges a violation of the Florida Consumer Collection Practices Act against FIA Card Services, N.A., for which plaintiff seeks “actual, statutory, and punitive damages1, as well as an award of attorney’s fees,. costs and expenses.” (Id. at Count I “Wherefore” clause). Count II alleges the intentional infliction of emotional distress against FIA Card Services, N.A., for which plaintiff seeks “judgment”. (Id. at Count II “Wherefore” clause). Count III alleges a violation of the Florida Consumer Collection Practices Act against BOA, for which plaintiff seeks “actual, statutory, and punitive damages, as well as an award of attorney’s fees, costs and expenses.” (Id. at Count III “Wherefore” clause). Count IV alleges the intentional infliction of emotional distress against BOA, for which plaintiff seeks “judgment”. (Id.' at Count IV “Wherefore” clause). Count V alleges “libel/defamation” against BOA, for which plaintiff seeks “judgment”. (Id. at Count V “Wherefore” clause.)

The only possible basis of removal of the Complaint .to federal court would be premised on diversity jurisdiction. Diversity jurisdiction requires complete diversity of citizenship, and that the matter in contro[1330]*1330versy exceed the sum or value of $75,000, exclusive of interest and costs. 28 U.S:C. § 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir.2000). The Complaint was not removable on its face because it does not allege either of these two necessary prerequisites for federal diversity jurisdiction.

(1) Complete Diversity of Citizenship

“In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). Pleading residency is not the equivalent of pleading domicile. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n. 12 (11th Cir.2011); Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1297 (11th Cir.2009); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.1994). “A person’s domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir.2002)(internal quotation marks and citations omitted).

A corporation is a citizen of both the state of its incorporation and the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). The principal place of business is determined by the “nerve center” test. Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1193, 175 L.Ed.2d 1029 (2010). A national banking association is deemed a citizen of the States in which it is “located,” 28 U.S.C. § 1348, and it is located in the State designated in its articles of association as its main office. Wachovia Bank v. Schmidt, 546 U.S. 303, 319, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006).

The Complaint does not properly allege the citizenship of any party. If the Complaint was intended to imply citizenship 'from the Florida residence of plaintiff and the authorization to do business in Florida by defendants, it was both insufficient and ineffective since a case cannot be removed if defendant is a Florida citizen. 28 U.S.C.

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490 U.S. 826 (Supreme Court, 1989)
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Molinos Valle Del Cibao, C. Por A. v. Lama
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Bluebook (online)
936 F. Supp. 2d 1327, 2013 WL 1365739, 2013 U.S. Dist. LEXIS 49008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mikesell-v-fia-card-services-na-flmd-2013.