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Ronald Losel v. Chase Bank Usa

August 30, 2012



On May 2, 2011, plaintiff Ronald Losel initiated this action in Sacramento County Superior Court, alleging defendant Chase Bank USA, N.A. ("Chase" or "defendant") and Donald Palmer violated state law by enticing him into a transaction that eventually cost him several thousand dollars. Chase filed a notice of removal on July 29, 2011. (ECF 1.) In its removal notice, Chase asserts that federal jurisdiction exists under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), and, in the alternative, that plaintiff's complaint is completely preempted by the National Bank Act ("NBA"), 12 U.S.C. § 21 et seq. The court finds that removal was improper and, therefore, the case is remanded to Sacramento County Superior Court.*fn1


Plaintiff alleges that he responded to an advertisement for free pain relief treatment offered by Dr. Donald Palmer. (ECF 1, Exhibit A ¶¶ 17, 18.) Dr. Palmer, along with many other doctors in California, partners with Chase to offer interest-free financing for certain elective medical procedures. (Id. ¶ 19.) In order to receive the free treatments, plaintiff was required to sign up for a package of fourteen treatments at a cost of $3,877. (Id. ¶ 18.) Plaintiff claims that he did not realize that by signing up for the free treatments he was incurring $3,877 in debt. (Id. ¶ 20.) When he noticed the charge, he contested it and, as a result, the interest rate rose from 0% to approximately 24%. (Id. ¶ ¶ 22-25.) Plaintiff claims this transaction was structured by defendants to deceive consumers into defaulting and thereby incurring high interest fees. (Id.) He seeks to represent a class of similarly situated California residents who entered into interest free financing agreements with defendant Chase under which Chase subsequently began charging interest. (Id. ¶ 12.)


The removal statute, 28 U.S.C. § 1441(a), provides: "[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). There is a "strong presumption" against removal jurisdiction, which "means that the defendant always has the burden of establishing that removal is proper." Id.; see also Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) ("[U]nder CAFA the burden of establishing removal jurisdiction remains . . . on the proponent of federal jurisdiction."). Furthermore, "removal jurisdiction is strictly construed in favor of remand." Nasrawi v. Buck Consultants, LLC, 776 F. Supp. 2d 1166, 1084 (E.D. Cal. 2011) (citing Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005)). Accordingly, "the court resolves all ambiguity in favor of remand to state court." Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).


In is notice of removal, defendant proposes two bases for federal subject matter jurisdiction: The Class Action Fairness Act ("CAFA") and plaintiffs' claims' complete preemption by federal law. The court finds neither basis provides jurisdiction, as discussed below.

A. Class Action Fairness Act

CAFA vests the district court with "original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2)(A). "Under CAFA, the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdiction." Abrego Abrego, 443 F.3d at 685. Therefore, a defendant must prove: (1) the amount of matters in controversy exceeds $5,000,000*fn2 ; and (2) any member of plaintiff's class is a citizen of a State different from any defendant. /////

In determining whether the amount in controversy exceeds $5,000,000, courts apply different standards of proof depending on whether plaintiff has claimed a specific amount in controversy. See Lowdermilk v. U.S. Bank National Ass'n, 479 F.3d 994, 998 (9th Cir. 2007).Where, as here, "the complaint does not specify the amount of damages sought, the removing defendant must prove by a preponderance of the evidence that the amount in controversy requirement has been met." Abrego Abrego, 443 F.3d at 683 (citing Gaus, 980 F.2d at 566--567). The preponderance of the evidence standard requires a defendant to "provide evidence establishing that it is more likely than not that the amount in controversy exceeds [$5,000,000]." Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). A defendant can satisfy this burden by submitting evidence outside the complaint, including by affidavit or declaration of expected damages. See Lewis v. Verizon Commc'ns., Inc., 627 F.3d 395, 397 (9th Cir. 2010) (holding that declaration established amount in controversy for removal of case); Saulic v. Symantec Corp., No. SA CV 07-610 AHS (PLAx), 2007 WL 5074883, at *8 (C.D. Cal. Dec. 26, 2007) (finding that defendant satisfied burden through affidavit stating it billed customers more than $5 million for premium services during the purported class period).

In this case, the defendant must establish by a preponderance of the evidence that the amount in controversy exceeds $5,000,000. In his complaint, plaintiff alleges he was enticed into an elective medical procedure that was free but, when it did not work, he ceased the procedures and contested the payment for the treatments he did not receive. The procedure was financed through Chase. The plaintiff alleges his damages consist of a loan principal of $3,877 and the interest that began to accrue when he contested the payment. (ECF 1, Exhibit A ¶¶ 19, 20, 25). Plaintiff claims that he is a member of a class that "includes over ten thousand members." (Id. ¶ 15.) However, plaintiff's own damages are tied to the fees he paid specific to his procedure and he does not allege that those numbers necessarily generalize to the entire putative class. The common injury suffered is not a specific amount of damages but rather being subject to a springing interest rate. See Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 2251 (2011) ("Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury." (quotation omitted)). Although defendant claims the amount in controversy exceeds $5,000,000, nothing in the record supports this conclusion. Plaintiff does not state explicitly his estimate of the total damages of the class; at most, he says the other ten thousand are "similarly situated" persons who "entered into an agreement with the CHASE Defendants" and were also "resident of California and at least 65 years old, or older." (ECF 1, Exhibit A, ¶¶ 12(a)-12(a)(I)). In their removal notice, Chase suggests that because plaintiff paid $1,000 in fees and he alleges ten thousand similarly situated individuals, the court can simply multiple his fees by the number of class members alleged to arrive at the jurisdictional amount. (ECF 1 at 4.) This fails to take account of the common injury plaintiff alleges which is the springing interest rate; the fees that accrue will vary based on the underlying value of the financing transaction specific to each patient. Defendant has failed to carry its burden to prove by a preponderance of evidence that the amount in controversy exceeds $5,000,000.

B. Preemption by National Bank Act

In most cases, "[t]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The plaintiff is the master of his claim, and he can choose to avoid federal jurisdiction by relying exclusively on state law. Id. However, "[u]nder the artful pleading doctrine, a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint. The artful pleading doctrine allows courts to delve beyond the face of the state court complaint and find federal question jurisdiction by recharacterizing a plaintiff's state-law claim as a federal claim." Lippitt v. Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1041 (9th Cir. 2003) (citations, quotations and alterations omitted). The artful pleading doctrine applies to "complete preemption cases." Id. Courts should invoke the artful pleading doctrine "only in limited circumstances as it raises difficult issues of state and federal relationships and often yields unsatisfactory results." Id. As explained below, here, there is no federal claim underlying plaintiff's state law claims.

A state law claim may "arise under" federal law "where federal law completely preempts state law." ARCO Envtl. Remediation, L.L.C. v. Dept. of Health and Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000). "Preempted state law claims may be removed to federal court only in the rare instances where Congress has chosen to regulate the entire field." Id. Section 85 of the NBA limits the amount of interest a national bank may charge, and section 86 provides the exclusive remedy for violations of this section. 12 U.S.C. ยงยง 85-86. In Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003), the Supreme Court construed sections 85 and 86 of the NBA to preempt state law claims for usury against national banks. In Beneficial, individual taxpayers brought a state law claim against a national bank for, inter alia, usurious interest rates. Beneficial, 539 U.S. at 4. The Court found that the complaint "expressly charged [defendants] with usury," explaining that it "sought relief for ...

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