United States District Court, N.D. Texas, Dallas Division
DARIUS J. PALMER, Plaintiff,
NISSAN FINANCE, NMAC, EXPERIAN CORP., EQUIFAX, TRANSUNION, INNOVIS DATA SOLUTIONS, ANONYMOUS ATTORNEY 1, ANONYMOUS BUSINESSES CLAIMING TO BE CREDITORS, Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant Innovis's Motion to Dismiss
or, in the alternative, for a More Definite Statement,
filed November 30, 2018 (doc. 6); Defendant Trans Union
LLC's 12(B)(6) Motion to Dismiss Plaintiff's
Complaint, filed December 5, 2018 (doc. 11);
Defendant Experian Information Solutions, Inc.'s
Motion for Judgment on the Pleadings, filed December 18,
2018 (doc. 16); and the plaintiff's Motion to Strike,
Overrule, and Deny Defendants Motion to Remove and to Remand
and Proceed Regarding Substantive and Common Law Jural Rights
Protections, filed January 8, 2019 (doc. 24). Based on
the relevant filings and applicable law, the plaintiff's
motion should be GRANTED, and the
defendants' motions should be DENIED as
October 22, 2018, Darius J. Palmer sued Nissan Finance, NMAC,
Experian Corp. (Experian), Equifax, Transunion, Innovis Data
Solutions (Innovis) (collectively Defendants),
“Anonymous Attorney 1” (Attorney), and
“Anonymous Business Claiming to be Creditors”
(Business), in the 422nd District Court of Kaufman County,
Texas, alleging that there is an invalid lien on his vehicle,
and that information about that lien is improperly included
in his credit report. (doc. 1-1 at 2-16.) His state court
This is a pre-suit activities and ‘self-help/private
administrative processes' /action intended to REVIEW THE
TRANSACTIONS AND INQUIRE INTO THE RECORDS APPERTAINING TO
OBTAIN DECLARATION OF THE RIGHTS, DUTIES, AND LEGAL RELATIONS
OF THE PARTIES INVOLVED in a CREDIT REPORTING EVENT AND
CREDITOR-DEBTOR TRANSACTION where Plaintiff has notified the
Defendants to cease and desist unless certain foundational
documents to verify and validate the existence of enforcement
and collection authority and other matters precedent to
collections and claims of default AND HOPEFULLY TO THEN GAIN
THE RELEASE OF ALL LIENS AND ENCUMBRANCES ON TITLE AND
ADVERSE REMARKS, AND FOR DAMAGES - IF ANY - [HYBRID COMBINED
COMMON LAW, DECLARATORY RELIEF, FAIR CREDIT REPORTING ACT AS
IMPLEMENTED AS STATE LAW AND CONSUMER PROTECTIONS, STATE FAIR
DEBT COLLECTION LAW, AND CONSUMER PROTECTION LAWS PRE-SUIT
ACTIVITIES AND ‘SELF-HELP/PRIVATE ADMINISTRATIVE
(Id. at 3-4 (formatting in original)). He seeks a
“$7, 500.00 Judgment” against Experian, Equifax,
Transunion, Innovis, and “the creditor(s) reporting
adverse information and not authorizing removal, all
severally and interchange[a]bly, ” as well as a
“$2, 500.00 Judgment” against their defense
counsel “jointly and interchange[a]bly.”
(Id. at 10.) He also seeks a temporary restraining
order (TRO) “enjoining any further collection and/or
reporting activities . . . regarding any claims of lien and
interest in title by Nissan Finance Persons, ” an
unspecified TRO against “Nissan Finance Persons,
” and declaratory judgment as to “the rights,
duties, and legal relations of the parties to these opposing
interests and pre-suit activities and
November 28, 2018, Experian and Innovis removed the action,
asserting federal question jurisdiction under 28 U.S.C.
§ 1331. (See doc. 1.) They contend that Plaintiff
asserts claims under the Fair Credit Reporting Act (FCRA), 15
U.S.C. §§ 1681 et seq., and the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692
et seq. (Id. at 2.)
November 30, 2018, Innovis moved to dismiss Plaintiff's
claims, or alternatively, for a more definite statement.
(doc. 6). Transunion also moved to dismiss his claims on
December 5, 2018, and on December 18, 2018, Experian moved
for judgment on the pleadings. (docs. 11, 16.) Plaintiff did
not respond to the motions, but instead moved on January 8,
2019, to strike Defendants' motions and to remand this
action. (doc. 24.) Defendants jointly responded to the motion
on January 29, 2019 (doc. 26), but he did not reply.
MOTION TO REMAND
civil action brought in state court may be removed to federal
court if the district court has original jurisdiction over
that action. 28 U.S.C. § 1441(a). A district court's
original jurisdiction is of two types: federal question
jurisdiction and diversity jurisdiction. 28 U.S.C.
§§ 1331, 1332. Federal question jurisdiction exists
in all civil actions arising under the Constitution, laws, or
treaties of the United States. Id. § 1331.
Diversity jurisdiction exists in all civil actions where the
amount in controversy exceeds $75, 000.00, exclusive of
interests and costs, and there is diversity of citizenship
between the parties. Id. § 1332(a). When a
civil action is removed solely under 1441(a), “all
defendants who have been properly joined and served must join
in or consent to the removal of the action.”
Id. at § 1446 (b)(2).
1447(c) provides two grounds for remand: (1) a defect in
removal procedure and (2) lack of subject matter
jurisdiction.” Burks v. Amerada Hess Corp., 8
F.3d 301, 303 (5th Cir. 1993). To determine whether it has
federal jurisdiction over the removed case, the court must
“consider the claims in the state court petition as
they existed at the time of removal.” Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto
Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). “The
removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper.”
Id. “This burden extends not only to
demonstrating a jurisdictional basis for removal, but also
necessary compliance with the requirements of the removal
statute.” Fraire v. Budget Rent-A-Car of El Paso,
Inc., No. EP-10-CV-338-PRM, 2011 WL 3678584, at *2 (W.D.
Tex. Mar. 31, 2011) (citing Burks, 8 F.3d at 303).
If there is “any doubt about the propriety of removal,
[it] must be resolved in favor of remand.” Gasch v.
Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82
(5th Cir. 2007).
a court performs its duty to verify that it has jurisdiction,
it may be required to survey the entire record, including the
defendant's pleadings, and base its ruling on the
complaint, on undisputed facts, and on its resolution of
disputed facts.” Aquafaith Shipping, Ltd. v.
Jarillas, 963 F.2d 806, 808 (5th Cir. 1992) (citation
omitted); see also Smith v. Estate of Wagner, No.
CIV A H 06-02629, 2006 WL 2729282, at *3 (S.D. Tex. Sept. 25,
2006) (explaining that a “court . . . [may] consider
the defendant's notice of removal, other pleadings, and
the record as of the time of removal if necessary to shed
light on the plaintiff's pleadings”). “The
purpose of this careful survey, however, is to shed light on
the plaintiff's pleadings. The court's focus is on
the plaintiff's pleadings, not the
defendant's.” Aquafaith, 963 F.2d at 808.
contends that removal was not proper because Defendants
“waited until their time has nearly lapsed”
before removing this case to federal court. (doc. 24 at 2.)
Defendants liberally construe this argument as alleging that
their removal was untimely under 28 U.S.C. § 1446(b).
(doc. 26 at 4-7.) They argue that because they were never
properly served in the ...