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Pete v. Capital One, N.A.

United States District Court, N.D. Texas, Fort Worth Division

September 14, 2017

QUENTIN PETE, Plaintiff,
v.
CAPITAL ONE, NATIONAL ASSOCIATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE UNITED STATES DISTRICT JUDGE

         Now pending are the motion of plaintiff, Quentin Pete, for remand and the motion of defendant. Capital One, N.A. [1], 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.

         I.

         Underlying Procedings

         The 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.[2] 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.

         On June 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.

         On July 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.

         II.

         Grounds of the Motions

         Plaintiff maintains that defendant did not timely file its notice of removal and, for that reason, the action must be remanded to the state court.

         Defendant maintains that plaintiff has not pleaded sufficient facts to state a plausible claim for relief.

         III

         Applicable Pleading Standard

         Rule 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 ...


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