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Capital One Bank (USA), N.A. v. Mashak

United States District Court, Eighth Circuit

January 8, 2014

CAPITAL ONE BANK (USA), N.A., Plaintiff,
v.
DON T. MASHAK, Defendant.

REPORT AND RECOMMENDATION

FRANKLIN L. NOEL, Magistrate Judge.

Plaintiff commenced this action in the state district court for Wright County Minnesota, and Defendant is attempting to remove the action to federal court under the federal removal statutes, 28 U.S.C. §§ 1441, et seq. Defendant did not tender any filing fee with his original self-styled notice of removal, (Docket No. 1), but he has filed an application seeking leave to proceed in forma pauperis, ("IFP"), (Docket No. 2), which must be addressed before this action can proceed in federal court. The matter has been referred to this Court for report and recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court finds that this case is not removable to federal court. The Court will therefore recommend that Defendant's IFP application be denied, that his notice of removal be vacated, and that this action be summarily remanded to the state court where it was originally commenced.

I. BACKGROUND

The Plaintiff in this case, Capital One Bank (USA) N.A., commenced this action by filing a civil complaint seeking a money judgment against Defendant. The complaint alleges that Plaintiff and Defendant entered into a credit account agreement. Defendant allegedly used a credit card issued pursuant to the agreement, but he allegedly has failed to pay Plaintiff in accordance with the terms and conditions of the agreement. Plaintiff is now suing Defendant based on (a) breach of contract, (b) "account stated, " and (c) unjust enrichment.

Sometime after this lawsuit was initiated in the state court, Defendant filed his original notice of removal, along with his pending IFP application. This Court previously reviewed the original notice of removal, and found that it did not satisfy the fundamental requirements prescribed by the federal removal statutes. Most notably, Defendant did not clearly identify the grounds for removal, and he did not file copies of all process, pleadings and orders in the state court record, as required by 28 U.S.C. § 1446(a). By order dated September 26, 2013, (Docket No. 4), Defendant was directed to file an amended notice of removal that complied with the statutory requirements. Defendant subsequently filed an amended notice of removal, (Docket No. 6), as well as various supporting affidavits and documents.

Having reviewed all of Defendant's submissions in this case, the Court now finds that Defendant has not identified any proper grounds for removal. The Court will therefore recommend that Defendant's IFP application be denied, and that this case be summarily remanded to the state court.

II. DISCUSSION

The federal removal statute provides that

"Except as otherwise expressly provided by Act of Congress, any 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."

28 U.S.C. § 1441(a) (emphasis added).

The federal removal statute is narrowly construed, to ensure that federal courts do not violate the vital principles of comity and federalism by entertaining actions in which federal subject matter jurisdiction is lacking. See Nichols v. Harbor Venture, Inc. , 284 F.3d 857, 861 (8th Cir. 2002) ("the nature of federal removal jurisdiction - restricting as it does the power of the states to resolve controversies in their own courts - requires strict construction of the legislation permitting removal"); see also In re Business Men's Assur. Co. of America , 992 F.2d 181, 183 (8th Cir. 1993) ("district court was required to resolve all doubts about federal jurisdiction in favor of remand").

The fundamental principles governing removal of state court actions to federal court have been summarized by the United States Supreme Court as follows:

"Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. [Footnote omitted.] Absent diversity of citizenship, federal-question jurisdiction is required. [Footnote omitted.] The 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. See Gully v. First National Bank , 299 U.S. 109, 112-113 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law. [Footnote omitted.]"

Caterpillar v. Williams , 482 U.S. 386, 392 (1987) (emphasis added). See also, Magee v. Exxon Corp. , 135 F.3d 599, 601 (8th Cir. 1998); Humphrey v. Sequentia, ...


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