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Lorianne Watts v. Enhanced Recovery Corp

January 18, 2011

LORIANNE WATTS,
PLAINTIFF,
v.
ENHANCED RECOVERY CORP.; LAW OFFICES OF MITCHELL N. KAY; BUREAU OF COLLECTION RECOVERY T-MOBILE USA, INC.; AND DOES I-X,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER DENYING MOTION TO REMAND; GRANTING T-MOBILE'S MOTION TO DISMISS WITH LEAVE TO AMEND

Currently before the Court are Plaintiff Lorianne Watts's Second Motion to Remand and Defendant T-Mobile's motion to dismiss, or, in the alternative, for summary judgment. Plaintiff, 20 who is represented by counsel, failed to oppose T-Mobile's motion and failed to file a reply in 21 support of her motion to remand. Plaintiff's counsel also did not appear at the motion hearing and 22 case management conference held on January 13, 2011. Having considered the submissions and 23 arguments of the parties, the Court DENIES Plaintiff's motion to remand and GRANTS Defendant T-Mobile's motion to dismiss with leave to amend. 25

I.Background

This action arises out of attempts by Defendants T-Mobile USA, Inc. ("T-Mobile"), Enhanced Recovery Corp. ("Enhanced Recovery"), Law Offices of Mitchell N. Kay ("Kay"), and Bureau of Collection Recovery ("BCR") to collect a debt of a $404.59 allegedly owed by an 2 individual named Loraine Watis to T-Mobile. FAC ¶¶ 11-13, 31. Plaintiff Lorriane Watts alleges 3 that she was contacted by Defendants Kay and BCR in 2008 regarding this debt. FAC ¶ 11. She 4 alleges further that she informed T-Mobile, Kay, and BCR that she had never had an account with 5 T-Mobile and was not the person responsible for the debt, and she requested that they cease debt 6 collection activity. Id. Defendants Kay and BCR continued to pursue the debt, however, and 7 sometime in or around 2009, Enhanced Recovery allegedly obtained Plaintiff's cell phone number 8 and began making repeated calls to Plaintiff regarding the debt. FAC ¶ 11, 13. Plaintiff claims 9 that despite her persistent efforts to dispute the debt, Defendants' collection efforts and adverse 10 credit reporting did not cease. Id.

Notice of Removal, ECF No. 1. Plaintiff moved to remand the case to state court based on 14 procedural defects in the removal process, but this Court denied Plaintiff's motion, finding removal 15 timely and proper. Order Denying Mot. to Remand, ECF No. 36. The Court then considered 16

Defendant Enhanced Recovery's motion to dismiss three of Plaintiff's state law causes of action 17 for intentional misrepresentation, negligent misrepresentation, and violations of the California 18

Unfair Competition Law, Cal. Bus. & Profs. Code § 17200 et seq. On October 19, 2010, the Court 19 granted the motion to dismiss with leave to amend the dismissed claims. Order Granting Mot. to 20

Although none of Plaintiff's federal causes of action were at issue in the motion to dismiss, when Plaintiff filed a First Amended Complaint ("FAC") on November 17, 2010, she omitted both the 23 dismissed state law causes of action and her federal claims.

California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785.25 et seq.; (3) libel; 27 and (4) invasion of privacy/false light. Plaintiff now moves to remand the action to state court on

Plaintiff filed her original Complaint in state court on April 27, 2010, asserting both state and federal causes of action. Defendants removed the action to federal court on June 14, 2010.

Dismiss Pl.'s Fourth, Fifth, and Eighth Causes of Action with Leave to Amend 6, ECF No. 55.

The complaint as amended alleges four state law causes of action: (1) violations of the California Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq.; (2) violations of the grounds that the Court lacks subject matter jurisdiction because the FAC no longer contains federal 2 claims. In addition, Defendant T-Mobile moves to dismiss Plaintiff's FAC as to T-Mobile only, or, 3 in the alternative, seeks summary judgment as to T-Mobile only, on grounds that none of the 4 causes of action contained in the FAC state a claim against T-Mobile. Pursuant to the case 5 scheduled adopted on September 2, 2010, fact discovery closed on December 6, 2010, and this case 6 is set for trial in April 2011. Minute Order & Case Management Order, ECF No. 37. 7

II.Motion to Remand

A.Legal Standard

A Plaintiff may bring a motion to remand to challenge removal of an action to federal court.

28 U.S.C. § 1447(c). Once the action has been removed, if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case must be remanded. Id. In considering a motion to remand, "jurisdiction must be analyzed on the basis of the pleadings filed 13 at the time of removal without reference to subsequent amendments." Sparta Surgical Corp. v. 14

National Ass'n of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). "The removal 15 statute is strictly construed, and any doubt about the right of removal requires resolution in favor of 16 remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 17 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Because of the "strong presumption" 18 against removal jurisdiction, the defendant bears the burden of establishing the facts to support 19 jurisdiction. Gaus, 980 F.2d at 566-67.

the First Amended Complaint no longer contains federal causes of action, and she requests that the Court remand the case to state court on this ground. As an initial matter, the Court notes that it is 24 not divested of subject matter jurisdiction on the basis of Plaintiff's amended complaint. In a 25 removed action, "jurisdiction must be analyzed on the basis of the pleadings filed at the ...


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