Opinion
2:07CV00141-WRW.
December 13, 2007
ORDER
Pending is Plaintiff's Motion to Remand to state court (Doc. No. 7). Defendants have responded (Doc. No. 9).
Plaintiff alleges Defendants are negligent in their attempt to collect a debt that Plaintiff did not owe. Plaintiff also alleges that Defendants committed the tort of outrage by retaliating against her for previous litigation. Defendants maintain that despite the state law language in Plaintiff's Complaint, Plaintiff's actual cause of action arises under the Fair Debt Collection Practices Act, and that this court thus has federal jurisdiction over this case. In determining whether remanding this case is appropriate, I must decide if Plaintiff's claims are FDCPA claims clothed in state law language, and if any state law claims are preempted by the FDCPA.
Doc. No. 2.
Id.
Doc. No. 7.
I find that Plaintiff's Complaint states state law claims and that the FDCPA does not preempt those claims. For the reasons set forth below, Plaintiff's Motion to Remand (Doc. No. 7) is GRANTED. Defendant Universal Fidelity's Motion to Strike Complaint (Doc. No. 3) is MOOT.
I. BACKGROUND
II. DISCUSSION
28 U.S.C. § 133128 U.S.C. § 1332
Doc. No. 2. The complaint was filed in Philips County Circuit Court, case number CV-2002-415.
Id.
Id.
Id.
Id.
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Kokkonen, 511 U.S. at 377.
Federal courts have original jurisdiction in cases when diversity of citizenship exists between the parties and "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." There is not complete diversity between the parties to this case; jurisdiction based on diversity is precluded.
28 U.S.C. § 1332.
B. Federal Question
In the absence of diversity of citizenship, a federal court may hear a controversy only if federal question jurisdiction exists. Federal questions include actions arising "under the Constitution, laws, or treaties of the United States." Federal jurisdiction requires that a federal question be presented on the face of the plaintiff's well-[pled] complaint. "It is well-settled that a cause of action arises under federal law only when the plaintiff's well-[pled] complaint raises issues of federal law." Under the well-pled complaint rule, if a plaintiff's complaint does not identify a cause of action under federal law, there is no federal question. A plaintiff can avoid federal jurisdiction by pleading only state law.
Caterpiller, 482 U.S. at 392.
28 U.S.C. § 1331.
Oklahoma Tax Comm'n. v. Graham, 489 U.S. 838, 840-41 (1989).
See Heinmann v. Nat'l. Elevator Indus. Pension Fund, 187 F.3d 493, 499 (5th Cir. 1999.)
See Plains Commerce Bank v. Long Family Land Cattle Co., 491 F.3d 878, 888-889 (8th Cir. 2007) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
The artfully-pled complaint rule, however, is an exception to the well-pled complaint rule. Under the artfully-pled complaint rule, removal may be proper despite the claims articulated in a plaintiff's complaint. The artfully-pled complaint rule applies if a federal law completely preempts state law claims, thus creating "federal removal jurisdiction," as compared to "conflict preemption," under which only state law claims identified by statute, or that conflict with the federal law, are preempted. The FDCPA preempts state law only when those laws are "inconsistent with any provisions of this subchapter." "A State law is not inconsistent with [the FDCPA] if the protection such law affords any consumer is greater than the protection provided by this subchapter."
See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987).
Id.
See Heinmann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir. 1999); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).
15 U.S.C. § 1692n.
Id.
C. Plaintiff's Claims Do Not Arise Under The FDCPA.
The FDCPA was intended "to eliminate abusive debt collection practices by debt collectors. . . . " On September 29, 2005, a jury found Plaintiff owed $50,000 to Defendant American Express. Plaintiff filed a motion for judgment notwithstanding the verdict, and the motion was granted on January 27, 2006. More than 18 months after the court granted the motion, Defendant American Express still reported a bad debt on Plaintiff's credit report and Defendant Universal Fidelity began calling Plaintiff about that debt. Plaintiff's Complaint alleges that Defendants were negligent in failing to verify whether a debt existed before trying to collect. This allegation of negligence falls outside of the scope of the FDCPA.
Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006).
Doc. No. 8.
Id.
Doc. No. 2.
Id.
Plaintiff further alleges that Defendants committed the tort of outrage by retaliating against her for previous litigation. Specifically, Plaintiff's Complaint reads "[i]n retaliation against Plaintiff for exercising her Constitutional right to trial by jury, Defendants continue to attempt to extort money from Plaintiff for a debt that she does not owe" and Defendants' actions are "willful and wanton and directed at Plaintiff . . . for the sole purpose of harassing . . . her. . . . " Defendants argue Plaintiff's Complaint alleges Defendants harassed her, that the FDCPA seeks to eliminate abusive debt collection practices, and that harassing conduct by a debt collector is an abusive debt collection practice. Thus, Defendants reason that Plaintiff's claims arise under the FDCPA. Plaintiff's allegation, however, is not that Defendants harassed her in connection with the collection of a debt, but rather as retaliation for previous litigation. Plaintiff's claim of outrage also does not arise under the FDCPA.
Doc. No. 8.
Doc. No. 10.
D. The FDCPA Does Not Preempt State Law Claims
Even if Plaintiff's claims arose under the FDCPA, that Act does not preempt all state law claims. In Thrasher v. Cardholder Servs., the court found that "Congress clearly meant to preempt some state causes of action" and "that to permit plaintiffs in Mississippi to pursue causes of action alleging intentional or negligent infliction of emotional distress as remedies for abusive debt collection practices would stand as an obstacle to the accomplishment . . . of . . . the FDCPA. Accordingly, . . . the Court finds that Congress preempted the causes of action alleged by Plaintiff." In Thrasher, however, the plaintiff's allegations were in connection with a disputed debt. In this case, there is no debt. Plaintiff is not liable to Defendant American Express on the account on which Defendant Universal is basing its contacts with Plaintiff.
Thrasher v. Cardholder Servs., 74 F. Supp. 2d 691, 695 (S.D. Miss. 1999).
Id. at 693.
Further, other cases emphasize that the FDCPA does not completely preempt state law tort claims. In Virgil v. Reorganized M.W. Co., the plaintiff sued the Montgomery Ward Credit Corporation, among others, alleging negligent infliction of emotional distress. The defendants removed the case to federal court, and the plaintiff filed a motion to remand; the court granted plaintiff's motion. The court in Virgil reasoned that "Congress specifically provided for state laws regarding debt-collection practices to remain valid unless inconsistent with the FDCPA . . ." and "[t]hus, Congress intended to allow states . . . concurrent jurisdiction." I find the reasoning of the Virgil court convincing. Considering the facts specific to this case, the FDCPA does not preempt Plaintiff's state law claims of negligence and outrage.
See Hage v. Gen. Serv. Bureau, 8:01CV367 (D. Neb. Aug. 5, 2002); Virgil v. Reorganized M.W. Co., 156 F. Supp. 2d 624 (S.D. Miss. 2001) (holding that the FDCPA did not completely preempt plaintiff's state law tort claims).
Virgil v. Reorganized M.W. Co., 156 F. Supp. 2d 624, 626 (S.D. Miss. 2001)
Id. at 626-627.
Id. at 631.
CONCLUSION
Because Plaintiff's claims did not arise under the FDCPA, and Plaintiff's state law claims are not preempted the FDCPA, Defendant is unable to prove federal question jurisdiction in this Court under 28 U.S.C. § 1331. Because there is neither diversity nor federal question jurisdiction, this Court lacks subject matter jurisdiction, and the case is REMANDED to the Circuit Court of Phillips County.
IT IS SO ORDERED.