United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE
pending are the motion of plaintiff, Quentin Pete, for remand
and the motion of defendant. Capital One, N.A. , to
dismiss. As explained below, the court finds that the motions
should be denied and that plaintiff should be given an
opportunity to file an amended complaint.
record reflects that, on June 12, 2017, plaintiff filed his
original petition in the 96*''' Judicial District
Court of Tarrant County. In it, plaintiff named Capital One
Bank, N.A., as defendant. Doc. 5, App.002. Plaintiff requested
the clerk of the state court to serve the defendant by
registered or certified mail, return receipt requested.
Id., at App.Oll. The clerk did so by serving the
named defendant's registered agent, Corporation Service
Company d/b/a CSC-Lawyers Incorporating Service
("Agent"). Id. at App. 020-023. Agent then
sent a letter to plaintiff purporting to reject service of
process for the reason that plaintiff had not properly named
defendant. Doc. 11 at 015. Agent did not forward the original
petition to defendant. Doc. 15 at 010.
27, 2017, plaintiff filed his first amended petition, this
time naming Capital One, National Association as defendant.
Doc. 5, App. 012. The first amended petition was served on
Agent by the clerk in the same manner as the original
petition. Doc. 5, App. 024-027. This time, Agent forwarded
the pleading to defendant, which received it on July 5, 2017.
Doc. 15 at 010.
24, 2017, defendant filed its notice of removal, bringing the
action before this court. Doc. 1. On July 31, 2017, defendant
filed its motion to dismiss. Doc. 6. Plaintiff has not
responded to the motion. On August 18, 2017, plaintiff
electronically filed his second amended complaint. Doc. 7.
That document was stricken as it violated the
undersigned's judge-specific requirement that does not
allow electronic filing. Doc. 8.
of the Motions
maintains that defendant did not timely file its notice of
removal and, for that reason, the action must be remanded to
the state court.
maintains that plaintiff has not pleaded sufficient facts to
state a plausible claim for relief.
8(a)(2) of the Federal Rules of Civil Procedure provides, in
a general way, the applicable standard of pleading. It
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief, " Fed.R.Civ.P. 8(a)(2), "in order to
give the defendant fair notice of what the claim is and the
grounds upon which it rests, " Bell Atl. Corp. V.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and ellipsis omitted). Although a complaint need not
contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a
cause of action. Twombly, 550 U.S. at 555 & n.3.
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any ...