Robin Lilly v. Equifax Information Services, LLC

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ROBIN LILLY,

Plaintiff,

v. No. 2:26-cv-1313 MLG/DLM

EQUIFAX INFORMATION SERVICES, LLC,

Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

Plaintiff Robin Lilly alleges that Defendant Equifax Information Services, LLC repeatedly and knowingly published false information on his personal credit file. Lilly filed suit in New Mexico state court for negligence, defamation, negligent misrepresentation, and for a violation of the New Mexico Unfair Practices Act (NMUPA). Equifax removed the lawsuit to this Court on the basis of federal question jurisdiction. Noting that the complaint did not appear to state a claim under federal law, the Court ordered Equifax to show cause why the case should not be remanded. Equifax filed an Amended Notice of Removal, alleging both federal question and diversity jurisdiction. Lilly moves to remand and argues that the Court does not have subject matter jurisdiction over his claims. (Docs. 4; 9.) Equifax opposes the motion and also moves to dismiss for failure to state a claim. (Docs. 14–15; 21.) Having considered the parties’ arguments and the relevant law, I RECOMMEND the Court REMAND this case to state court but DENY Lilly’s request for costs and fees. I. Relevant Background Lilly asserts that in April 2023, LilMar Group, LLC “opened a business credit card account

with JPMorgan Chase Bank, N.A. (‘Chase’).” (Doc. 7-2 ¶ 7.) While Lilly “was the Authorizing Officer on the” credit card account (the “Account”), he did not sign a personal guarantee for it. (See id. ¶ 8.) Chase has confirmed that Lilly did not sign a personal guarantee for the Account through both a pleading and in response to an interrogatory served as part of a separate lawsuit. (See id. ¶¶ 9–10 (quoting Docs. 7-2-A–B).) See also Lilly v. JPMorgan Chase Bank, N.A., No. 2:25-cv-0978 MIS/DLM (D.N.M.). Lilly asserts that because he did not sign a personal guarantee, he “has no personal liability for the Account.” (See Doc. 7-2 ¶ 11.) He further contends that because LilMar Group, LLC owns the Account, it “cannot be accurately reported as an individual personal obligation.” (See id.)

Yet Equifax reported the Account on Lilly’s personal credit file with notations that it was a “Business Account – Personal Guarantee,” that the balance exceeded $39,000, and that the payment status was late by 120 days. (See id. ¶ 12 (citing Doc. 7-2-C).) Lilly contends that he submitted seven disputes to Equifax from June 2025 through January 2026. (See id. ¶ 17.) On the occasions Equifax responded, it either characterized the reported information as accurate, requested additional documentation, or stated that the dispute was frivolous. (See id. ¶ 18.) Equifax continued to report the inaccurate information through March 2026, “more than six weeks after [Lilly] provided Equifax with Chase’s sworn admission that no personal guarantee exists.”1 (See id. ¶¶ 15, 21.) On March 25, 2026, Lilly filed his original Complaint for Damages in New Mexico state

court, bringing state common law claims for negligence, defamation, and negligent

1 As of April 26, 2026, the information is no longer on Lilly’s personal credit file. (See Doc. 10 ¶ 17.) misrepresentation, and for a violation of the NMUPA. (See Doc. 7-1 at 2, 9–13.) He filed a First Amended Complaint on March 27, 2026, and served it on Equifax the same day. (See Docs. 1 at

32, 52; 7-2 at 2.) There is only one difference between the two versions. In the First Amended Complaint, Lilly asserts that “the total relief sought herein, inclusive of all damages, fees, and costs, does not exceed $74,999.” (Compare Doc. 7-1 at 13–14, with Doc. 7-2 at 14; see also Doc. 10 ¶ 16.) Equifax removed the lawsuit to this Court on April 27, 2026. (Doc. 1.) The Notice of Removal states: Along with state court claims, Plaintiff’s Complaint alleges that the Defendant is in violation of [t]he [NMUPA]. . . . Consequently, the Plaintiff’s Complaint sets forth claims or rights arising under the Constitution and laws of the United States and/or a separate and independent claim or cause of action within the jurisdiction conferred on this Court by 28 U.S.C. § 1331.

(Id. ¶¶ 4–5.) On April 29, 2026, the Court entered an Order to Cure Deficiency or Show Cause. (Doc. 3.) The Order provided: Equifax states removal is proper under § 1331 because Lilly brings a claim under the [NMUPA]. But federal question jurisdiction requires that the plaintiff’s claims are either created by federal law or necessarily depend on the resolution of a “substantial question of federal law.” The [NMUPA] is not federal law, and it is not apparent from the statute alone whether Lilly’s claim necessarily depends on a substantial question of federal law. Equifax does not assert any other basis for the Court to exercise jurisdiction. Therefore, the notice of removal is deficient.

(Id. at 1–2 (quoting Gilmore v. Weatherford, 694 F.3d 1160, 1170 (10th Cir. 2012)) (citations omitted).) On May 1, 2026, Lilly moved to remand. (Doc. 4.) On May 13, 2026, Equifax filed an Amended Notice of Removal. (Doc. 7.) It alleges that the Court has jurisdiction on two grounds: (1) under 28 U.S.C. § 1332 because the parties are diverse and the amount in controversy exceeds $75,000.00; and (2) under 28 U.S.C. § 1331 because the “Lawsuit implicates a federal question under the Fair Credit Reporting Act[,]” 15 U.S.C. §§ 1681–1681x (FCRA). (See id. ¶ 10.) Lilly filed a second Motion to Remand on May 14, 2026. (Doc. 9.)

On June 3, 2026, Equifax moved to dismiss for failure to state a claim. (Doc. 14.) On July 15, 2026, United States District Judge Matthew L. Garcia entered an Order referring the case to the undersigned for a recommendation “on substantive motions and an ultimate disposition of the case.” (See Doc. 27.) II. Legal Standards

A defendant may remove a civil action from state to federal court if the action “satisfies the requirements for original federal jurisdiction . . . .” Padilla v. Am. Modern Home Ins. Co., 282 F. Supp. 3d 1234, 1250 (D.N.M. 2017) (citing 28 U.S.C. § 1441(a); Huffman v. Saul Holdings LP, 194 F.3d 1072, 1076 (10th Cir. 1999)). Federal question jurisdiction exists “if the case arises under the Constitution, laws, or treaties of the United States.” Darr v. N.M. Dep’t of Game & Fish, 403 F. Supp. 3d 967, 992 (D.N.M. 2019) (citing 28 U.S.C. § 1331). “To remove a case based on diversity, the diverse defendant must demonstrate that all of the usual prerequisites of diversity jurisdiction are satisfied[:]” that is, the parties must be diverse and the amount in controversy must exceed $75,000.00. Padilla, 282 F. Supp. 3d at 1251 (citing 28 U.S.C. § 1332; Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1107 (10th Cir. 2000)). “Federal courts are courts of limited jurisdiction; thus, there is a presumption against removal jurisdiction, which the defendant seeking removal must overcome.” Zambrano v. N.M. Corr. Dep’t, 256 F. Supp. 3d 1179, 1182 (D.N.M. 2017) (citing Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), abrogated on other grounds by Dart Cherokee Basin Op. Co. LLC v.

Owens, 574 U.S. 81 (2014)). “All doubts are to be resolved against removal.” Id. (quoting Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)). III. The Court does not have federal question jurisdiction over this lawsuit.

Lilly argues that the Court does not have federal question jurisdiction because he asserts only state-law claims. (Docs. 4; 9.) Equifax responds that Lilly artfully pleaded his claims to avoid federal question jurisdiction and that his claims are completely preempted by the FCRA, thus giving rise to federal question jurisdiction. (See Doc. 21.) I recommend finding that the Court does not have federal question jurisdiction over this action. A. The well-pleaded complaint rule “A federal district court has jurisdiction over cases in which ‘a federal question is presented on the face of the plaintiff’s properly pleaded complaint.’” Lopez v. Life Care Centers of Am., Inc., No. 1:20-cv-0958 JCH/LF, 2021 WL 1121034, at *4 (D.N.M. Mar. 24, 2021) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). “Under the well-pleaded complaint rule, if the federal

question does not appear on the face of the plaintiff's complaint, there is no federal question jurisdiction.” Id. (citing Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001)); see also New Mexico ex rel. Balderas v. Monsanto Co., 454 F. Supp. 3d 1132, 1148 (D.N.M. 2020) (“a suit arises under federal law ‘only when the plaintiff’s statement of his own cause of action shows that it is based on federal law’”) (quoting Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012)) (subsequent citation omitted). The Court must examine only “the ‘well-pleaded allegations of the complaint and ignore potential defenses.’” Monsanto, 454 F. Supp. 3d at 1148 (quoting Devon Energy Prod., 693 F.3d at 1202). This law makes it possible for the plaintiff to “avoid federal jurisdiction by pleading state law—at the price, of course, of foregoing the federal remedies.” Id. (citing Felix v. Lucent Techs., Inc., 387 F.3d 1146,

1154 (10th Cir. 2004)) (subsequent citation omitted). Here, Lilly alleges that Equifax violated the NMUPA and state common law. (See Doc. 7- 2.) He does not refer to the FCRA or any other federal law. (See id.) “Because [Lilly] is the master of [his] complaint, removal is precluded unless [Equifax] can show that an exception applies to

the well-pleaded complaint rule . . . .” See Monsanto, 454 F. Supp. 3d at 1148–49 (citing Devon Energy Prod., 693 F.3d at 1203–04) (subsequent citation omitted). Equifax carries the burden to establish that the exception applies. See id. (citing Miller v. United States, 710 F.2d 656, 662 (10th Cir. 1983)). B. Complete preemption Equifax argues that Lilly’s lawsuit is removable under § 1331 because the state claims are completely preempted by the FCRA. (See Doc. 21 at 4–7.) “Complete preemption is an exception to the well-pleaded complaint rule, in which federal preemption makes the state claim federal in character.” Lopez, 2021 WL 1121034, at *4 (citing Salzer v. SSM Health Care of Okla. Inc., 762

F.3d 1130, 1134 (10th Cir. 2014)); see also Devon Energy Prod., 693 F.3d at 1204 (citations omitted). “Complete preemption is a rare doctrine,” Devon Energy Prod., 693 F.3d at 1204 (quoting Cmty. State Bank v. Strong, 651 F.3d 1241, 1260 n. 16 (11th Cir. 2011)), “one that represents an ‘extraordinary pre-emptive power,’” id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “The circumstances are so rare in fact that the Supreme Court has recognized complete preemption in only three areas[,]” none of which involve the FCRA or are applicable in this lawsuit. See id. at 1204–05 (discussing complete preemption recognized in § 301 of the Labor Management Relations Act of 1947, § 502 of the Employee Retirement Income Security Act of 1974, and in certain actions under the National Bank Act) (collecting cases). “Consequently, the

Supreme Court has warned that complete preemption should not be ‘lightly implied.’” See id. at 1205 (quoting Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 752 (1983) (Brennan, J., concurring)) (citing Schmeling v. NORDAM, 97 F.3d 1336, 1340 (10th Cir. 1996)) (“noting that the Supreme Court has extended this doctrine ‘reluctantly’”).

To establish that complete preemption applies, Equifax must show that the claims “fall within the scope of federal statutes intended by Congress completely to displace all state law on the given issue and comprehensively to regulate the area.” Id. (quoting Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1221 (10th Cir. 2011)). “That is, the asserted federal statute must ‘so pervasively regulate [its] respective area[ ]’ that it leaves no room for state-law claims.” Id. (quoting Hansen, 641 F.3d at 1221). The Tenth Circuit directs courts to perform a two-part analysis when analyzing a claim of complete preemption: (1) determine “whether the federal regulation at issue preempts the state law relied on by the plaintiff; and [(2) determine] ‘whether Congress intended to allow removal in such

[a] case[ ], as manifested by the provision of a federal cause of action to enforce the [federal] regulation [ ].’” Id. at 1205–06 (quoting Schmeling, 97 F.3d at 1342). “The FCRA’s purpose is ‘to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information . . . .’” Keller v. Bank of Am., N.A., 228 F. Supp. 3d 1247, 1253 (D. Kan. 2017) (quoting 15 U.S.C. § 1681(b)). “The ‘FCRA enables consumers to protect their reputations, and to protect themselves against the dissemination of false or misleading credit information.’” Id. (quoting Holland v. GMAC Mortg. Corp., No. 03-2666 CM, 2006 WL 1133224, at *11 (D. Kan. Apr. 26, 2006)). “The FCRA places distinct obligations on three types of entities:

(1) consumer reporting agencies; (2) users of consumer reports; and (3) furnishers of information.” Id. (quoting Aklagi v. Nationscredit Fin., 196 F. Supp. 2d 1186, 1192 (D. Kan. 2002)). Lilly’s claims rest on Equifax’s status as a consumer reporting agency. (See Doc. 7-2 ¶¶ 7–21 (alleging that Equifax inaccurately reported a business account on his personal credit file, despite having

credible information that he was not personally liable for the account.) See also 15 U.S.C. § 1681a(f) (defining consumer reporting agency as one that “assembl[es] or evaluat[es] consumer credit information . . . for the purpose of furnishing consumer reports to third parties”). Equifax affirmatively identifies itself as a consumer reporting agency. (See Doc. 21 at 2.) Equifax asserts that “the FCRA identifies the responsibilities owed to a consumer by a credit reporting agency such as Equifax[,]” which include “a reasonable reinvestigation” and deletion of inaccurate information from his credit file. (See id. at 5 (citing 15 U.S.C. § 1681i).) Equifax then summarily concludes that “[b]ecause Plaintiff’s claim is within the subject matter regulated under the FCRA, it is completely preempted by section 1681t(b)(1)(C) and (E) . . . .”

(Id.) The undersigned disagrees. Section 1681t(b)(1)(C) provides that “[n]o requirement or prohibition may be imposed under the laws of any State . . . with respect to any subject matter regulated under . . . subsections (a) and (b) of section 1681m of this title, relating to the duties of a person who takes any adverse action with respect to a consumer . . . .” 15 U.S.C. § 1681t(b)(1)(C). These sections relate to “users” of consumer reports. See id.; see also 15 U.S.C. § 1681m (noting that a “user” may take action based on “information contained in a consumer report”). Equifax fails to demonstrate that it is a “user” under the circumstances alleged in Lilly’s complaint. Cf. Yohay v. City of Alexandria Emps. Credit Union, Inc., 827 F.2d 967, 973 (4th Cir. 1987) (noting that a “user” may “include[] ‘the ultimate destination of a credit report’ as well as ‘the person who acquires [a credit report] for

another’”) (quotation omitted). Equifax cites only Keller in support of its position. (See Doc. 21 at 5.) Yet Keller involved claims brought against a “furnisher” of information to a consumer reporting agency. See Keller, 228 F. Supp. 3d at 1253–54 (analyzing 15 U.S.C. §§ 1681t(b)(1)(F) & 1681s- 2 and noting that the “[d]efendant does not claim that it is a consumer reporting agency . . . or user

of consumer reports”). Because Equifax does not claim to be a furnisher under the FCRA, Keller is inapposite. See id. at 1253 (noting that a “furnisher” is “an entity which transmits information concerning a particular debt owed by a particular consumer to consumer reporting agencies”) (quotation omitted); cf. Cochran v. Newrez LLC, No. 2:21-cv-0626, 2022 WL 1600536, at *5 (S.D.W. Va. May 19, 2022) (distinguishing Keller on the same basis). Section 1681t(b)(1)(E) provides that “[n]o requirement or prohibition may be imposed under the laws of any State . . . with respect to any subject matter regulated under . . . section 1681c of this title, relating to information contained in consumer reports . . . .” 15 U.S.C. § 1681t(b)(1)(E). Equifax does not explain how section 1681t(b)(1)(E) or 1681c relate to the circumstances of this

lawsuit. (See Doc. 21.) The provision that comes closest in relevance requires consumer reporting agencies to indicate the fact of a consumer dispute on a consumer report. See 15 U.S.C. § 1681c(f). Yet that is not the error Lilly alleges. Instead, Lilly asserts that Equifax’s conduct in failing to correct inaccurate information causes harm. (See Doc. 7-2.) Thus, Equifax fails to show the applicability of subsections 1681t(b)(1)(E) or 1681c. Equifax also contends that “section 1681h(e) preempts state common law actions . . . .” (Doc. 21 at 7.) While it is true that section 1681h(e) “includes a ‘limitation of liability’ provision for certain types of state-law claims, that provision expressly allows a plaintiff to maintain a state- law claim of defamation under certain conditions.” Ponder v. Experian Info. Sols., Inc., No. 1:20- cv-4548 CAP/JSA, 2021 WL 3398158, at *7 (N.D. Ga. June 15, 2021), R&R adopted, 2021 WL

3403527 (N.D. Ga. July 7, 2021). Thus, Equifax’s theory of complete preemption fails. See id. (gathering cases). Indeed, Equifax is fighting an uphill battle to establish that the FCRA completely preempts Lilly’s state law claims. In almost every case the undersigned uncovered that examines this issue

in the context of a motion to remand, courts across the country have held that the FCRA does not completely preempt state law and have granted motions to remand for lack of federal question jurisdiction. See, e.g., Brown v. Equifax Info. Servs. LLC, No. 1:25-cv-6439 MHC/JSA, 2026 WL 790905, at *8–9 (N.D. Ga. Feb. 25, 2026), R&R adopted, 2026 WL 1508570 (N.D. Ga. Mar. 19, 2026); Carroll v. Equifax Info. Servs. LLC, No. 3:23-cv-2570 S-BN, 2023 WL 9285471, at *3 (N.D. Tex. Nov. 29, 2023), R&R adopted, 2024 WL 384926 (N.D. Tex. Feb. 1, 2024); Ponder, 2021 WL 3398158; Watkins v. Trans Union, L.L.C., 118 F. Supp. 2d 1217, 1219–23 (N.D. Ala. 2000). Accordingly, I recommend the Court find Equifax fails to establish federal question jurisdiction under the complete preemption doctrine.

C. Artful pleading and Grable Equifax fares no better in its bid under the “artful pleading” doctrine. It argues that “a plaintiff may not defeat removal by failing to plead federal questions that are essential elements of the plaintiff’s claim.” (Doc. 21 at 6 (quoting Schmeling, 97 F.3d at 1339).) It notes that Lilly’s “[NM]UPA allegations completely mirror the elements required to state a claim under section 1681i of the FCRA.” (Id. (citing Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1242 (10th Cir. 2015)).) Yet Wright does not stand for the proposition that the FCRA completely preempts state law, thereby making a case removable. In fact, the Wright court noted that the plaintiff’s section 1681i(a) claim was “nearly identical” to its state “counterpart.” See Wright, 805 F.3d at 1242 (discussing Colo. Rev. Stat. § 12-14.3-106). In other words, the state claim was not

preempted. Moreover, the Supreme Court defines the artful pleading doctrine as one that “allows removal where federal law completely preempts a plaintiff’s state-law claim.” See Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (citing Metro. Life Ins. Co., 481 U.S. at 65–66). Thus, it is

unclear how the results of Equifax’s argument under the artful pleading would differ from those under the complete preemption doctrine. See Watkins, 118 F. Supp. 2d at 1220 (finding that “[u]nder either label, defendants’ claim for the essential federal nature of this action stems from FCRA’s preemption of plaintiff’s cause of action”). Finally, Equifax mentions in passing the Supreme Court’s decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005). (See Doc. 21 at 6.) “The Grable test permits removal in only a ‘slim category’ of cases.” Bishop v. Holloway Credit Sols., LLC, No. 3:08-cv-0995 TFM, 2009 WL 499390, at *3 (M.D. Ala. Feb. 27, 2009) (quotation omitted). The dispute in Grable centered on a “substantial federal issue”—“the action of a federal

agency (IRS) and its compatibility with a federal statute.” Id. (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 700 (2006)). Here, however, Lilly’s claims concern “the actions only of private parties.” See id. Moreover, Equifax fails to mount a convincing argument to show that this lawsuit concerns a “substantial federal issue” necessary to support removal jurisdiction under Grable. See id. In short, Equifax fails to establish federal question jurisdiction under any theory it advances. IV. Equifax fails to establish diversity jurisdiction. In the alternative, Equifax argues, the Court has diversity jurisdiction over the lawsuit. (See Doc. 21 at 7–8.) Lilly contends that Equifax’s diversity jurisdiction theory, raised for the first time more than 30 days after service, is untimely.2 (See Doc. 9 at 6–9.) Lilly is correct. A “notice of removal must contain ‘a short and plain statement of the grounds for removal’

and be filed within 30 days after the receipt by the defendant of the complaint upon which removal is based.” Silverman v. Houser, No. 1:26-cv-0247 JCH/KRS, 2026 WL 2098143, at *2 (D.N.M. July 21, 2026) (quoting 28 U.S.C. § 1446(a)–(b)). After 30 days, “however, most cases indicate that defendants may amend the notice only to set out more specifically the grounds for removal that already have been stated in the original notice.” Martinez v. LHM QCJ, LLC, No. 1:24-cv0260 JCH/LF, 2024 WL 3252771, at *3 (D.N.M. July 1, 2024) (quoting 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3733 (Rev. 4th ed.)). “[D]efendants may not add completely new grounds for removal or furnish missing allegations . . . .” Id. (quoting Wright & Miller § 3733); see also Silverman, 2026 WL 2098143, at *2 (noting that “after thirty days,

district courts have discretion to permit amendments that correct allegations already present in the notice of removal” but “no discretion to permit amendments furnishing new allegations of a jurisdictional basis”) (quoting Wood v. Crane Co., 764 F.3d 316, 323 (4th Cir. 2014)). In Silverman, the defendant removed on the basis of federal question jurisdiction. See 2026 WL 2098143, at *1. The plaintiff then voluntarily dismissed the sole federal claim and moved to remand. See id. The defendant opposed, arguing that the court also had diversity jurisdiction, though that was not a basis on which defendant originally removed the lawsuit. See id. The court held that the defendants could “not belatedly amend their removal notice to assert diversity jurisdiction, a separate jurisdictional basis.” Id. at *3 (citing Martinez, 2024 WL 3252771, at *3) (subsequent citations omitted).

2 Lilly also argues that Equifax cannot establish that his claims meet the jurisdictional amount necessary to sustain diversity jurisdiction. (See Doc. 9 at 15–17.) Because I recommend finding that Equifax’s assertion of diversity jurisdiction was untimely, I do not discuss this issue. In Lopez v. Walker Stainless Equipment Company, LLC, one of the defendants removed on diversity grounds and argued that another defendant, who was not diverse from the plaintiff, was

fraudulently joined. See 431 F. Supp. 3d 1253, 1254 (D.N.M. 2020). After the court found that diversity jurisdiction did not exist, the defendant sought to amend the notice to assert federal question jurisdiction for the first time. See id. at 1254–55. The court did not allow the amendment, offered more than four weeks after removal, finding that “[d]efendants . . . ‘are not allowed to switch jurisdictional horses midstream.’” Id.at 1255 (quoting New Mexico ex rel. Balderas v. Valley Meat Co., LLC, No. 1:14-cv-1100 JB/KBM, 2015 WL 3544288, at *25 (D.N.M. May 20, 2015)) (citations omitted). Here, Equifax filed the Notice of Removal within 30 days of service of the First Amended Complaint. The original Notice based removal solely on the basis of federal question jurisdiction.

(See Doc. 1.) Equifax filed its Amended Notice of Removal 47 days after service and added—for the first time—allegations regarding diversity jurisdiction. (See Doc. 7.) The Amended Notice falls outside of the 30-day period under 28 U.S.C. § 1446(b) and is, therefore, untimely for purposes of asserting a new jurisdictional basis for removal. V. Costs and Fees Lilly seeks costs and fees under 28 U.S.C. § 1447(c). (Doc. 9 at 19.) 28 U.S.C. § “1447(c) empowers courts to ‘require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.’” Darr, 403 F. Supp. 3d at 1015 (quoting 28 U.S.C. § 1447(c)). “The decision to award fees and costs lies in the court’s discretion.” Id. (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)). A plaintiff need not “show that the defendants

acted in bad faith to win attorney’s fees.” Id. (quoting Archuleta v. Taos Living Ctr., LLC, 791 F. Supp. 2d 1066, 1081–82 (D.N.M. 2011)). Although a district court has awarded costs and fees in a case very similar to this, see Cochran, 2022 WL 1600536, I do not recommend the Court award costs and fees here. Neither party located a Tenth Circuit decision directly on point. Further, Equifax found one case from the District of Kansas that, while inapposite, arguably made its position reasonable. VI. Conclusion Equifax fails to establish that the Court has federal question or diversity jurisdiction over this lawsuit. Consequently, I recommend the Court grant Lilly’s motions to remand for lack of subject matter jurisdiction but deny his request for costs and fees. (Docs. 4; 9.) I further recommend the Court take no action on Equifax’s motion to dismiss, as the Court lacks jurisdiction over this lawsuit. See Silverman, 2026 WL 2098143, at *4. IT IS THEREFORE RECOMMENDED that the Court GRANT IN PART Lilly’s Motions to Remand. (Docs. 4; 9.) THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the 14-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.

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DAMIAN L. MARTINEZ UNITED STATES MAGISTRATE JUDGE