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McClellon v. Bank of America

United States District Court, W.D. Washington

July 17, 2018

DONTE MCCLELLON, Plaintiff,
v.
BANK OF AMERICA, Defendant.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's motion to remand (Dkt. No. 4) and Defendant's motion to dismiss (Dkt. No. 6). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Plaintiff's motion to remand (Dkt. No. 4) and GRANTS Defendant's motion to dismiss (Dkt. No. 6) for the reasons explained herein.

         I. BACKGROUND

         Plaintiff Donte McClellon (“McClellon”) alleges that Defendant Bank of America (“BOA”) is liable for a series of fraudulent transactions from Plaintiff's checking account in 2017. (Dkt. No. 1-1.) In his three-page complaint, McClellon makes the following allegations against BOA:

This is an action under the Uniform Commercial Code (4.22.005 to 925) and Washington Consumer Protection At, RCW 19.86.020, based upon Defendant's blatant self-dealing and other intentional negligent misconduct in conversion, freezing, pooling, otherwise manipulating Plaintiff's funds without Plaintiff's authorization.
Plaintiff further allege that the Defendant breached the contract, failed to comply with Regulation E and committed the tort of negligence in the handling of Plaintiff's funds. The Plaintiff seeks compensatory damages and all other damages (i.e., direct and consequential damages) allowed by law, and payment of costs and attorneys' fees.
Plaintiff opened an checking account with Defendant . . . Plaintiff timely filed his good faith Regulation E claims with Defendant but the Defendant failed to protect the checking account in subject, provisional credit the Plaintiff and have those funds be accessible to him.
The fraudulent transactions at issue that took place in the checking account in subject are $123, 553.15 on April 3rd, 2017 and $54, 000.00 on April 18th, 2017 . . . Regulation E states that a provisional credit must be provided within 10 business days.[1]

(Id. at 1-2.) McClellon originally filed his complaint in King County Superior Court. (Id. at 1.) On June 7, 2018, BOA removed the case, citing 28 U.S.C. section 1332 as the basis for this Court's jurisdiction.[2] (Dkt. No. 1-3.) On June 12, 2018, McClellon filed a motion to remand the case to state court (Dkt. No. 4). Two days later, BOA filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted (Dkt. No. 6). The Court addresses these motions in turn.

         II. DISCUSSION

         A. Legal Standard for Remand

         A party to a civil action brought in state court may remove that action to federal court if the district court would have had original jurisdiction at the time of both commencement of the action and removal. See 28 U.S.C. § 1441(a); 14B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3723 (4th ed. 2013). Once removed, the case can be remanded to state court for either lack of subject-matter jurisdiction or defects in the removal procedure. See 28 U.S.C. § 1447(c). The removing party bears the burden of establishing federal jurisdiction. Emrich v. Touche Ross & Co, 846 F.2d 1190, 1195 (9th Cir. 1988). There is a “strong presumption” against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). The Court resolves all ambiguity in favor of remand to state court. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).

         B. McClellon's Motion to Remand

         McClellon asserts that BOA improperly removed this case because there is not complete diversity of citizenship and the amount in controversy requirement is not met. (Dkt. No. 4 at 1- 3.) McClellon, a resident of Washington, asserts that BOA is also a resident of Washington because “it regularly conducts business in the state.” (Id. at 1.) Additionally, McClellon states that the $75, 000 amount in controversy requirement is not met because his ...


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