Remand Denied: FCRA Cases Removable: Lockard v. Equifax

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Remand Denied: FCRA Cases Removable: Lockard v. Equifax

Postby Administrator » Mon Oct 03, 2005 6:31 am

Lockard v. Equifax, Inc.
163 F.3d 1259
C.A.11 (Ga.),1998.

Credit applicant, who claimed he was denied credit because of outstanding medical debts on his credit report that he did not owe, brought suit in state court alleging violations of Fair Credit Reporting Act (FCRA) and state law causes of action against numerous defendants, including several health care providers, debt collection agencies, and credit reporting agencies. Defendants removed case to federal district court.

The United States District Court for the Northern District of Georgia, No. 1:96-CV-109-WBH, Willis B. Hunt, Jr., J., denied plaintiff's motions to remand, to amend complaint, and to transfer case to Louisiana, and dismissed all but two defendants for lack of personal jurisdiction. Final order was certified as to dismissed defendants, and plaintiff appealed.

The Court of Appeals, Clark, Senior Circuit Judge, held that: (1) FCRA case was removable; (2) debt collector's delivery of credit information by mail to Georgia credit reporting agency was insufficient contact to justify personal jurisdiction; (3) order denying motion to amend complaint was not reviewable; and (4) transfer was not warranted.

Affirmed in part and dismissed in part.

Fair Credit Reporting Act (FCRA) case that is brought in state court may be removed to federal court. Truth in Lending Act, § 618, as amended, 15 U.S.C.A. § 1681p.

Credit applicant was not entitled to have his Fair Credit Reporting Act (FCRA) case remanded to state court, on ground that federal claims were intertwined with state claims, given that the defendants against whom the state claims had been made had all been dismissed for lack of personal jurisdiction. Truth in Lending Act, § 602, as amended, 15 U.S.C.A. § 1681.

The issue here is whether Congress intended such a removal exception in § 1681p. There is no case law from any Circuit court on this issue. There are numerous district court decisions, but they are split. Some district courts have held that removal to federal court is prohibited [See Ruth v. Westinghouse Credit Co., Inc., 373 F.Supp. 468 (W.D.Okla.1974); Harper v. TRW, Inc., 881 F.Supp. 294 (E.D.Mich.1995)], while other district courts have found that the plain language of the statute allows plaintiffs to initiate an action in state court but does not guarantee that they may keep it there.See Broom v. TRW Credit Data, 732 F.Supp. 66 (E.D.Mich.1990); Rhea v. Amresco, Inc., 871 F.Supp. 283 (N.D.Texas 1994); Haun v. Retail Credit Co., 420 F.Supp. 859 (W.D.Pa.1976).

We agree with the reasoning outlined in Haun v. Retail Credit Co., 420 F.Supp. 859 (W.D.Pa.1976), concluding that the language in the FCRA does not provide evidence that Congress intended to preclude removal.

The leading district court case finding that removal of FCRA cases is prohibited relied on cases interpreting similar language in the Fair Labor Standards Act 29 U.S.C. § 219 (1970). (FLSA) as a removal prohibition.

However, only one Circuit court has issued an opinion as to whether Congress intended to prohibit removal of cases brought under the FLSA, and district courts are divided on the issue. Compare Johnson v. Butler Bros., 162 F.2d 87 (8th Cir.1947); Carter v. Hill & Hill Truck Line, Inc., 259 F.Supp. 429 (S.D.Tex.1966); Wilkins v. Renault Southwest, Inc., 227 F.Supp. 647 (N.D.Tex.1964); Zorrilla v. Puerto Rican Cement Co., 227 F.Supp. 159 (D.C.P.R.1964); Dando v. Stonhard Co., 93 F.Supp. 270 (W.D.Mo.1950); and Maloy v. Friedman, 80 F.Supp. 290 (N.D.Ohio 1948) (all holding FLSA cases not removable); with Anthony v. West Coast Drug Co., 331 F.Supp. 1279 (W.D.Wash.1971); Hill v. Moss-American, Inc., 309 F.Supp. 1175 (N.D.Miss.1970); Goettel v. Glenn Berry Mfrs., Inc., 236 F.Supp. 884 (N.D.Okla.1964); Niswander v. Paul Hardeman, Inc., 223 F.Supp. 74 (E.D.Ark.1963); Buckles v. Morristown Kayo Co., 132 F.Supp. 555 (E.D.Tenn.1955); and Rossi v. Singer Sewing Machine Co., 127 F.Supp. 53 (D.Conn.1953) (holding FLSA cases removable).

Moreover, there is a difference in the language of the jurisdiction provisions of the FLSA and the FCRA. The FLSA states that a plaintiff can "maintain" an action in any other court of competent jurisdiction, whereas the FCRA states that suit "may be brought" in any other court of competent jurisdiction. This minor difference in language translates to more than a minor difference in meaning. A reader may reasonably infer that the word "maintain" arguably implies that an action may not only be initiated but also continued on to judgment. Thus, it is arguable that allowing a plaintiff to "maintain" an FLSA suit in state court is logically inconsistent with allowing the defendant to remove the action to federal court, and that when Congress chose the word "maintain," it intended to create an exception to the removal statute. While the FLSA wording is arguable, the FCRA wording does not result in that same logical inconsistency with § 1441(a). Allowing an action to be "brought" in a particular court allows the plaintiff to initiate a suit in that court, but provides no guarantee that the suit will end in that same court. Appellant has pointed to no evidence suggesting that Congress intended for the word "brought" to have more than its usual meaning of "began" when it provided in § 1441(a) for removal of cases "brought in a State court." This court has decided other cases under the FCRA that were brought in state court and subsequently removed to federal court, although the removal of those cases was not challenged. See Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151 (11th Cir.1991); Clay v. Equifax, Inc., 762 F.2d 952 (11th Cir.1985).

Moreover, we have held that where Congress has granted concurrent jurisdiction to state and federal courts, removal is not barred. See Chilton v. Savannah Foods & Industries, Inc., 814 F.2d 620 (11th Cir.1987).

We hold that the sole purpose of the language at issue here is to allow state courts concurrent jurisdiction for actions brought under the FCRA, and that the provision of concurrent jurisdiction does not prohibit removal. Cf. § 77v of the Securities Act of 1933, supra, in which Congress expressly permitted concurrent jurisdiction but also created a bar to removal by including specific language prohibiting removal. The FCRA has no such express language.

Lockard's argument that his federal claims are so intertwined with state claims that remand is warranted is meritless.

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