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Hess v. Bonneville Blling and Collections, Inc.

United States District Court, W.D. Washington, Tacoma

June 5, 2015

LEONARD J. HESS, SAMANTHA HESS, and the marital community comprised thereof, Plaintiffs,


RONALD B. LEIGHTON, District Judge.

THIS MATTER is before the Court on Plaintiffs' Motion to Remand [Dkt. #10]. Hess[1] sued Defendant Bonneville in state court for violating the Washington Consumer Protection Act while attempting to collect a debt. Hess told Bonneville that he was going to amend his complaint to assert a federal claim under the Fair Debt Collection Procedures Act, and moved for leave to do so. Bonneville offered to stipulate to the amendment, and apparently informed Hess that if he asserted the FDCPA claim, it would remove the case to federal court.

Bonneville also informed the state court that its then-pending Summary Judgment Motion, and Hess's Motion to Amend, would be mooted if Hess added a FDCPA claim, because the case would be removed. Hess signed, but refused to file, the stipulation for leave to amend. Bonneville told Hess to either file the stipulation and assert the FDCPA claim, or withdraw the Motion to Amend. Hess did neither. Bonneville filed the stipulation and the FDCPA claim was included in the case. Three days later, Bonneville removed the case to this court, based on federal question jurisdiction under 28 U.S.C. § 1331.

Hess seeks remand, arguing that Hess waived its right to remove by continuing to litigate in state court after it learned that Hess wanted to add the FDCPA claim. Because Bonneville timely and properly removed the complaint, and did not waive its right to do so, the Motion to Remand is DENIED.


A. Standard for Removal

An action is removable to a federal court by the defendants only if it could have been brought there originally. 28 U.S.C. § 1441(a). It is well-settled that the removal statutes are to be strictly construed. See Conrad Associates v. Hartford Accident & Indemnity Co., 994 F.Supp. 1196 (N.D. Cal. 1998). Strong presumption against removal jurisdiction means the defendant always has the burden of establishing that removal is proper. Conrad, 994 F.Supp. at 1198; see also Gaus v. Miles, 980 F.2d 564, 567 (9th Cir. 1992). Federal jurisdiction must be rejected if there is "any doubt" as to the right of removal. Gaus v. Miles, 980 F.2d at 566.

B. Bonneville Did Not Waive Their Right to Remove

Hess argues that the case should be remanded because the Bonneville "waived federal jurisdiction by engaging in state court litigation prior to removal." But there is no factual or legal support for this claim. The waiver inquiry is not how much the case was litigated prior to removal; it is instead what did the defendant do after the case was removable that is fundamentally inconsistent with exercising its right of removal. For example, filing a motion for summary judgment after receipt of an amended complaint might manifest a defendant's intent to waive the right to remove to federal court." See Migis v. AutoZone, Inc., No. CIV 08-1394-KI, at 5 (D. Or. July 2, 2009).

But Bonneville filed its motion for summary judgment months before Hess told Bonneville he was going to amend his complaint to assert a (removable) FDCPA claim. Hess claims that Bonneville "vigorously pursued pleading practice" and used "veiled threats designed to force [him] to file more and more pleadings with the state Court." That is not true. All of the filings, and all of the communications, related directly to the pending motion to amend, the stipulation that would obviate the need for the state court judge to review or hear that motion, and Bonneville's forthright admission that if the FDCPA claim was added, the case would be removed - obviating the need for the state court to review, schedule, or hear the pending summary judgment motion. Bonneville did not a waive its right to remove; it unequivocally told the court and Hess that it intended to exercise its right to remove, as soon as the FDCPA claim was actually in the case.

Hess alleges that Bonneville "waived federal jurisdiction" because they waited until two weeks after receiving Hess's draft motion to amend. The time for removal is 30 days, and that period begins at the defendant's receipt "through service or otherwise, of a copy of the initial pleading setting forth the [removable] claim for relief." 28 U.S.C. §1446(b). Bonneville could not have, and certainly was not required to, seek removal unless and until the amended complaint was operative. It removed the case three days after the Amended complaint was filed. It did nothing in the interim to waive its right to remove, and the removal was proper as a matter of law.

C. The Court Will Exercise Supplemental Jurisdiction over Hess's State Law Claims.

Once its jurisdiction is triggered, this Court also has supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. §1367(a). Hess's initial CPA claim and his current FDCPA claim arise from the same transaction, and are part of the same case or controversy. There is no reason to require the defendant to defend two separate lawsuits on the same subject matter, or for two courts to have to hear it. Splitting the claims would also present the risk of inconsistent results.

The court can and will exercise supplemental jurisdiction over the related state law claims under § 1367, ...

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