United States District Court, S.D. Indiana
CLIFFORD W. SHEPARD, Plaintiff,
SPECTRUM f/k/a Bright House Networks LLC, Defendant.
ADELMAN District Judge.
Shepard, representing himself, brought this case in the
Superior Court of Marion County, Indiana, against Credit
Protection Association L.P. (CPA) and Spectrum alleging
violations of unspecified federal and state laws governing
debt collection and credit reporting practices and state tort
law. Defendants removed the case to this court. Shepard moves
to remand it to state court. Whether removal was proper here
“must be determined from what necessarily appears in
the plaintiff's statement of his own claim, ” i.e.,
the complaint. Franchise Tax Bd. of Cal. v. Constr.
Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 10 (1983)
(quoting Taylor v. Anderson, 234 U.S. 74, 75
complaint alleges as follows: Shepard contracted with
Spectrum to receive broadband internet service at his home.
Later, due to account arrears, Spectrum deactivated his
service and referred his account to CPA for collection.
Shepard demanded verification of a portion of the debt, which
CPA did not provide, and tried to dispute it. CPA then warned
Shepard that it would report his debt to credit reporting
agencies unless he paid Spectrum the full amount due within
30 days. Shepard paid Spectrum in full within the specified
time, but CPA reported his account anyway. When Shepard told
CPA about its mistake, CPA notified the credit reporting
agencies that its reports were erroneous and closed its file
on Shepard's account with Spectrum.
general, “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed . . ., to the district court . .
. for the district . . . embracing the place where such
action is pending.” 28 U.S.C. § 1441(a).
Defendants removed this case asserting that this court has
original jurisdiction over it because it “aris[es]
under the . . . laws . . . of the United States.”
See Id. § 1331. Specifically, defendants stated
that the facts as alleged in the complaint give rise to
claims under the Fair Debt Collection Practices Act (FDCPA).
does not dispute that his complaint alleged a basis for
federal claims giving rise to jurisdiction under § 1331,
but he argues that he dismissed any such claims prior to
removal when he filed a notice of voluntary dismissal in
state court, pursuant to state procedural rules, dismissing
CPA as a defendant. Thus, Shepard says, there were no claims
in this case arising under federal law when defendants
removed it. The record suggests that defendants were not
aware of this when they removed the case, as Shepard
dismissed CPA earlier that same day, but Spectrum does not
dispute Shepard's assertion that his notice of dismissal
in state court was immediately effective.
argues that, even without CPA as a defendant, this case
arises under federal law because the complaint alleges that
Spectrum is vicariously liable for CPA's violations of
the FDCPA. But, given the facts as alleged in the complaint,
Spectrum is not a “debt collector” subject to the
FDCPA, which, as relevant here, primarily governs the conduct
of “third party collection agents” like CPA, not
“debt owner[s]” like Spectrum. See Henson v.
Santander Consumer USA Inc., 137 S.Ct. 1718, 1721-22
(2017). As such, Spectrum was neither (1)
“independently obliged to comply with the Act”
nor (2) “require[d] . . . to monitor the actions of
those it enlist[ed] to collect debts on its behalf” to
ensure their compliance with it. Janetos v.
Fulton Friedman & Gullace, LLP, 825 F.3d 317, 325
(7th Cir. 2016). As the alleged facts do not give rise to
claims that Spectrum is liable, vicariously or otherwise,
under the FDCPA, federal jurisdiction based on the FDCPA does
not exist in this case, at least without CPA as a defendant.
also suggests that federal jurisdiction exists in this case
because the complaint refers to conduct governed by the Fair
Credit Reporting Act (FCRA), such as “credit reporting
by furnishers” and “disputes by consumers . . .
related to the reporting.” See Def.'s
Opp'n Br., Docket No. 11, at 2 n.3. The FCRA, in relevant
part, imposes duties on “furnishers of information to
consumer reporting agencies, ” including a duty
“to provide accurate information” and a duty
“to provide notice” if a consumer disputes
“the completeness or accuracy of any information
furnished.” See 15 U.S.C. § 1681s-2(a).
But there is no private right of action under the FCRA for
violations of these duties. See, e.g., Sanders
v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1147
(10th Cir. 2012). Rather, these duties are “enforced
exclusively” by designated federal and state
agencies and officials, e.g., the Federal Trade Commission.
See §§ 1681s, 1681s-2(c)(1), (d) (emphasis
added). As such, the alleged facts do not give rise to any
claims under the FCRA, and federal jurisdiction based on the
FCRA does not exist in this case.
has not shown that the complaint states any claims against it
over which federal subject-matter jurisdiction exists, and
Shepard has dismissed, or at least disclaimed, any causes of
action against CPA. Therefore, remand is either required
under 28 U.S.C. § 1447(c), for lack of subject-matter
jurisdiction, or appropriate under 28 U.S.C. § 1367(c),
because the parts of this lawsuit that were “within
federal jurisdiction” have been resolved and I see no
reason to exercise supplemental jurisdiction over the rest of
it. See Bergquist v. Mann Bracken, LLP, 592 F.3d
816, 819 (7th Cir. 2010). Accordingly, I will grant
Shepard's motion and remand this case.
asks for “just costs and . . . actual expenses . . .
incurred as a result of the removal.” See
§ 1447(c). But “such payment may be required
‘only where the removing party lacked an objectively
reasonable basis for seeking removal.'” Wells
Fargo Bank, N.A. v. Younan Properties, Inc., 737 F.3d
465, 469 (7th Cir. 2013) (quoting Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005)). Here, the
record suggests that defendants did not know when they sought
removal that Shepard had dismissed CPA as a defendant, and
the complaint's allegations against CPA provided an
objectively reasonable basis for seeking removal. Thus, I
will deny Shepard's request.
IT IS ORDERED that Shepard's motion to remand
this case to state court (Docket No. 7) is
GRANTED and this case is
REMANDED to the Superior Court of Marion
County for further proceedings. The Clerk of Court shall
close this case.
IS FURTHER ORDERED that Shepard's request for
costs and expenses (Docket No. 14, at 9) is
IS FURTHER ORDERED that all other pending motions in
this case (Docket Nos. 9, 18, ...