Jones v. Sears Roebuck & Co.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1584

MILDRED F. JONES; RONALD L. LAZZARINE; TAMMY LAZZARINE;
NELLIE G. MOSES, on behalf of themselves and others
similarly situated,

Plaintiffs – Appellants,

v.

SEARS ROEBUCK AND COMPANY; SEARS HOLDING CORPORATION; SEARS
NATIONAL BANK; CITIBANK (USA), N.A., their successors and
assigns jointly and severally,

Defendants – Appellees.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:06-cv-00345)

Argued: September 23, 2008 Decided: November 10, 2008

Before TRAXLER, 1 KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

1
Judge Traxler participated in the oral argument of this
case, and thereafter recused himself. This decision is thus
rendered by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
ARGUED: Henry Drewry McCoy, II, Peterstown, West Virginia, for
Appellants. Daniel Harris Squire, WILMER, CUTLER, PICKERING,
HALE & DORR, L.L.P., Washington, D.C., for Appellees. ON BRIEF:
Raymond A. Bragar, BRAGAR, WEXLER & EAGEL, P.C., New York, New
York, for Appellants. Rebecca J. K. Gelfond, Kelly Thompson
Cochran, WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P.,
Washington, D.C.; Christopher R. Lipsett, WILMER, CUTLER,
PICKERING, HALE & DORR, L.L.P., New York, New York, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Mildred Jones, Ronald and Tammy Lazzarine, and Nellie G.

Moses, on behalf of themselves and others (collectively, the

“Plaintiffs”), appeal from an adverse judgment in their

purported class action proceeding against Sears Roebuck & Co.,

Sears Holding Corporation, Sears National Bank, and Citibank

USA, N.A. (collectively, the “Defendants”). The district court

disposed of the relevant contentions in three steps: (1)

denying the Plaintiffs’ motion to remand, Jones v. Sears Roebuck

& Co., No. 5:06-cv-00345 (S.D. W. Va. Mar. 8, 2007) (the “Remand

Denial”); 2 (2) granting the Defendants’ motion to dismiss, Jones

v. Sears Roebuck & Co., No. 5:06-cv-00345 (S.D. W. Va. Mar. 28,

2007) (the “Dismissal Opinion”); 3 and (3) denying the Plaintiffs’

motion for reconsideration, Jones v. Sears Roebuck & Co., No.

5:06-cv-00345 (S.D. W. Va. May 18, 2007) (the “Reconsideration

Denial”). 4 On appeal, the Plaintiffs maintain that the court

erred in dismissing their claims and declining to remand to

state court, in denying reconsideration, in failing to conduct a

2
The Remand Denial is found at J.A. 105-17. (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)
3
The Dismissal Opinion is found at J.A. 118-27.
4
The Reconsideration Denial is found at J.A. 129-30.

3
hearing on the motion to remand, and in failing to grant leave

to amend. As explained below, we affirm.

I.

A.

This proceeding originated on November 18, 2003, in the

Circuit Court of Raleigh County, West Virginia, when Mildred

Jones and Ronald and Tammy Lazzarine (collectively, the

“Original Plaintiffs”), filed suit against Sears National Bank

(“SNB”) and Sears, Roebuck & Co. (“Sears”), on behalf of all

West Virginia residents holding Sears credit cards. In that

complaint (the “State Complaint”), the Original Plaintiffs made

three claims: (1) seeking a declaration that the arbitration

provision in their Sears credit card agreements was

unconscionable (Count I); (2) seeking statutory damages under

the West Virginia Consumer Credit and Protection Act (the

“WVCCPA”) for unconscionable conduct (Count II); and (3) seeking

declaratory and equitable relief under the WVCCPA because SNB

and Sears failed to disclose trademark licensing relationships

or place their addresses on credit cards, misleading class

members as to the identification of the creditor (Count III). 5

On the face of the State Complaint, the words “Citibank USA,

5
The State Complaint is found at J.A. 278-88.

4
N.A.” were handwritten in the caption, although Citibank was not

mentioned in the factual allegations. 6

In February 2004, SNB and Sears filed a motion to dismiss

the State Complaint, contending that Counts I and II failed to

present any justiciable issues because the Original Plaintiffs

had not alleged an underlying dispute or sought to invoke the

arbitration provision, and that Count III failed to state a

claim. In December 2005, the state court dismissed Counts I and

II, explaining,

(1) . . . [T]here exists no case or controversy
between the parties sufficient to support this court’s
exercise of its constitutional jurisdiction, or, in
the alternative, (2) if constitutional jurisdiction
exists, the proper exercise of this court’s discretion
is that it should decline to consider declaratory
relief as requested by the individual plaintiffs.

Jones v. Sears, Roebuck & Co., No. 03-C-1011-B, slip op. at 6

(W. Va. Cir. Ct. Dec. 15, 2005) (the “State Court Opinion”). 7

The state court also dismissed Count III, ruling that the

Original Plaintiffs had not proffered any legal basis for the

argument that a credit card issuer must disclose certain

geographic licensing and trademark information to its customers.

6
The state court declined to treat Citibank as a party to
the State Complaint because no factual allegations were made
against it.
7
The State Court Opinion is found at J.A. 313-20.

5
Id. at 8. Notably, the state court dismissed the State

Complaint without certifying the class.

Subsequently, on March 9, 2006, the Plaintiffs — the

Original Plaintiffs plus Nellie Moses — filed an amended

complaint in the state court that the Defendants removed to

federal court (the “Federal Complaint”). 8 The Plaintiffs therein

added Citibank and Sears Holdings Corporation (“SHC”) as

defendants. 9 The Federal Complaint alleges five counts, with

Counts I through III being substantially the same as Counts I

through III of the State Complaint.

Count IV of the Federal Complaint alleges violations of (1)

a Federal Trade Commission (“FTC”) consent decree, and (2) the

WVCCPA, on behalf of Moses and other Plaintiffs. Count IV

asserts that Sears’s actions violated an FTC consent decree

forbidding Sears to “[c]ollect any debt . . . that has been

legally discharged in bankruptcy proceedings and that respondent

is not permitted by law to collect.” In the Matter of Sears

8
The Federal Complaint is found at J.A. 13-34.
9
According to the Federal Complaint, Citibank is a
“successor and assignee in interest” of Sears credit card
accounts because Citibank acquired the accounts in November of
2003 for approximately $3.5 billion. Federal Complaint ¶ 7. It
further alleges that SHC is the parent company that resulted
from a merger between Sears and KMart Corporation in March 2005,
that SHC took the place of Sears on the New York Stock Exchange,
and that SHC is the parent corporation of Sears.

6
Roebuck & Co., FTC File No. 972-3187 (June 4, 1997) (the

“Consent Decree”). 10 Count IV further alleges that Sears

contravened the Consent Decree because it had initiated an

action against Moses in state court in January 2001 — the year

after her liability had been discharged due to Chapter 7

bankruptcy — to enforce a security interest in goods she

purchased using a Sears credit card (the “Collection Suit”).

The Collection Suit was dismissed in March 2002 for

nonprosecution, but allegedly violated the WVCCPA because

Sears’s conduct constituted “unfair methods of competition and

unfair or deceptive acts or practices.” W. Va. Code § 46A-6-

104. 11

Count V of the Federal Complaint contains the same

allegations as Counts I through IV, and is asserted on behalf of

a limited subclass of plaintiffs (“Subclass A”), namely, all

Sears credit card holders in West Virginia (1) who held credit

cards between the filing of the Consent Decree (June 4, 1997),

and the filing of the Federal Complaint (November 18, 2003), and

(2) against whom Sears or SNB enforced or sought to enforce a

10
The Consent Decree is found at J.A. 70-78.
11
The entire text of West Virginia Code section 46A-6-104
provides, “Unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are
hereby declared unlawful.”

7
security interest while the card agreements contained the

arbitration provision.

B.

On May 10, 2006, Citibank removed the Federal Complaint to

the Southern District of West Virginia, pursuant to 28 U.S.C. §

1446 and a Class Action Fairness Act (“CAFA”) provision, 28

U.S.C. § 1453. The Plaintiffs moved to remand to state court,

and the district court denied the motion. On May 17, 2006, all

Defendants (SNB, Sears, SHC, and Citibank) sought dismissal of

the Federal Complaint, and the court filed the Dismissal Opinion

on March 28, 2007. In its ruling, the court made the following

conclusions: (1) Counts I and II are not justiciable under

Article III of the Constitution of the United States because

they present no case or controversy; (2) the state court’s 2005

dismissal of Count III should stand, pursuant to the law of the

case doctrine; (3) Count IV does not state a claim under the

terms of the Consent Decree or under West Virginia law; and (4)

Count V simply restated the other counts on behalf of a limited

subclass of plaintiffs, and therefore should also be dismissed.

By letter of February 23, 2007, the Plaintiffs had

informally suggested that the district court conduct a

“preliminary hearing” before it disposed of the motion to

remand. The Plaintiffs later sought reconsideration of the

Dismissal Opinion, and the court filed its Reconsideration

8
Denial on May 18, 2007, explaining that the Plaintiffs were

rehashing old arguments or raising assertions that could have

been made earlier. In seeking reconsideration, the Plaintiffs

also sought leave to amend, and the Reconsideration Denial did

not explicitly refer to the amendment request. The Plaintiffs

have timely noted this appeal, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.

II.

We review de novo issues of standing and justiciability.

Piney Run Pres. Ass’n v. County Comm’rs, 268 F.3d 255, 262 (4th

Cir. 2001). We also review de novo a district court’s dismissal

for failure to state a claim upon which relief can be granted.

Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). By

contrast, we review for abuse of discretion a district court’s

denial of a motion for reconsideration or a request for leave to

amend. Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006)

(providing standard for denial of reconsideration); Franks v.

Ross, 313 F.3d 184, 192 (4th Cir. 2002) (explaining standard for

denial of leave to amend).

III.

This appeal challenges the Dismissal Opinion’s rulings

(1) that Counts I and II are not justiciable under Article III,

9
and thus subject to dismissal, because each fails to present a

case or controversy; (2) that dismissal of Count III was

mandated under the law of the case doctrine; (3) that Count IV

fails to allege a claim under either the FTC Consent Decree or

West Virginia law; and (4) that Count V simply restates the

other counts on behalf of a limited subclass of plaintiffs, and

therefore must be dismissed as well. The Plaintiffs also

contend that the court erred in the Remand Denial, the

Reconsideration Denial, and in failing to grant leave to amend.

As explained below, we affirm the Dismissal Opinion on the

following bases: Counts I and II because the Plaintiffs lack

standing; Count III as to the Original Plaintiffs under the law

of the case doctrine, and because the added Plaintiffs lack

standing; and Counts IV and V for lack of standing.

A.

First of all, we assess the district court’s dismissal of

Counts I and II of the Federal Complaint. In Count I, the

Plaintiffs seek declaratory relief under the West Virginia

Declaratory Judgment Act, 12 maintaining that the arbitration

12
Although the State Complaint purported to invoke West
Virginia’s Declaratory Judgment Act, we apply the federal
Declaratory Judgment Act in this proceeding. See 28 U.S.C. §
2201; Chapman v. Clarendon Nat’l Ins. Co., 299 F. Supp. 2d 559,
562-63 (E.D. Va. 2004) (holding that removal of state
declaratory judgment action invokes § 2201).

10
provisions of the Sears credit card agreements are

unconscionable. They claim that the agreements unlawfully bar

participation in class actions, prevent access to the courts,

and unconstitutionally deprive them of their right to a jury

trial. In Count II, the Plaintiffs allege violations of the

WVCCPA and claim statutory damages. As explained below, we

agree that Counts I and II fail to present a justiciable case or

controversy under Article III of the Constitution.

A federal court may exercise its jurisdiction in a

declaratory judgment proceeding only when “the complaint alleges

an actual controversy between the parties of sufficient

immediacy and reality to warrant issuance of a declaratory

judgment.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co.,

386 F.3d 581, 592 (4th Cir. 2004) (internal quotation marks

omitted). In order to satisfy this requirement, a plaintiff

must possess standing to sue, meaning that a claim must present

a “controversy that qualifies as an actual controversy under

Article III of the Constitution.” Id. Standing encompasses

three components: “(1) the plaintiff must allege that he or she

suffered an actual or threatened injury that is not conjectural

or hypothetical, (2) the injury must be fairly traceable to the

challenged conduct, and (3) a favorable decision must be likely

to redress the injury.” Miller v. Brown, 462 F.3d 312, 316 (4th

11
Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)).

In light of our decision in Volvo, Count I fails to show an

actual or threatened injury that rises to the level of a case or

controversy. Volvo also concerned a claim for declaratory

relief, and although we found a controversy present, we observed

that one is not present when “the defendant ha[s] not taken any

action, even of a preliminary nature, against the plaintiff, and

the defendant ha[s] not indicated that it intend[s] to take any

future legal action against the plaintiff.” 386 F.3d at 592

n.12 (distinguishing N. Jefferson Square Assocs. v. Va. Hous.

Dev. Auth., 94 F. Supp. 2d 709, 714 (E.D. Va. 2000)). Such is

precisely the situation at hand: none of the Defendants has

threatened to invoke the arbitration provision, and none of the

Plaintiffs has alleged an underlying dispute that might

legitimately progress to that point.

The Plaintiffs apparently added Moses as a named plaintiff

in the Federal Complaint to correct their standing problem, as

evidenced by their present contention that “only one plaintiff

must have standing in order that a federal court have

jurisdiction over a class action suit under Article III.” Br.

of Appellants 17 (citing Bowsher v. Synar, 478 U.S. 714, 721

(1986)). The addition of plaintiff Moses, however, fails to

cure the Plaintiffs’ standing problem. Moses was subjected to

12
the Collection Suit by Sears in 2001, and the Plaintiffs

maintain that it “relegate[ed] her solely to arbitration under

NAF [National Arbitration Forum] auspices.” Id. at 22. In

other words, the Plaintiffs contend, if Moses had filed a

counterclaim in the Collection Suit, she would likely have had

to submit to arbitration in an NAF forum.

Assuming the validity of such an assertion, it does not

raise Moses’s claim in Count I to an Article III case or

controversy. Declaratory judgment actions must allege disputes

that are “real and substantial and admi[t] of specific relief

through a decree of a conclusive character, as distinguished

from an opinion advising what the law would be upon a

hypothetical state of facts.” MedImmune, Inc. v. Genetech,

Inc., 127 S. Ct. 764, 771 (2007) (internal quotation marks

omitted). As with other Plaintiffs, Sears neither invoked nor

threatened to invoke the arbitration provision of Moses’s credit

card agreement, and any ruling made here on the arbitration

provision would constitute an advisory opinion.

The Plaintiffs also maintain on appeal that a district

court “should refuse to entertain a declaratory judgment only

for good cause.” Br. of Appellants 27 (citing Aetna Cas. &

Surety Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937)). The

lack of standing is sufficient good cause, however; it is the

“threshold question in every federal case, determining the power

13
of the court to entertain the suit.” Warth v. Seldin, 422 U.S.

490, 498 (1975). Thus, in the absence of an injury and with no

“real and substantial” dispute, the court properly declined to

entertain Count I upon removal.

In its Dismissal Opinion, the district court compared this

proceeding to the situation in Bowen v. First Family Financial

Services, Inc., 233 F.3d 1331 (11th Cir. 2000). In Bowen, the

class action plaintiffs lacked standing to question whether

arbitration agreements are generally unenforceable under the

Truth-in-Lending Act. The Eleventh Circuit so ruled because

“there [was] no allegation that First Family has invoked, or

threatened to invoke, the arbitration agreement to compel the

plaintiffs to submit any claim to arbitration.” Id. at 1339. 13

13
The Eleventh Circuit addressed two separate standing
issues in Bowen: first, under the Truth-in-Lending Act and
second, under the Equal Credit Opportunity Act (the “ECOA”).
Although the court ruled that the plaintiffs did not possess
standing to pursue a Truth-in-Lending Act claim, it concluded
that they possessed standing to challenge the defendant’s
requirement that customers must execute arbitration agreements
as a condition of credit under the ECOA. But the plaintiffs’
standing only arose from the ECOA itself, which creates an
explicit cause of action for consumers who are discriminated
against “with respect to any aspect of a credit transaction”
because they “in good faith, exercise[] any right under [the
Consumer Credit Protection Act].” Bowen, 233 F.3d at 1334-35
(citing 15 U.S.C. § 1691(a)). In so ruling, the court of appeals
reasoned that “[t]he difference is that the plaintiffs were
required to and did sign the arbitration agreement, but there
has been no occasion for First Family to attempt to enforce it
against them.” Id. at 1339. The matter on appeal is more
analogous to the Truth-in-Lending Act claim because these
(Continued)
14
This action is similar to Bowen because the Plaintiffs have not

sufficiently alleged that the Defendants either invoked or

threatened to invoke the arbitration provision of the Sears

credit card agreements.

We thus agree, in disposing of Count I, with the courts

that have deemed a challenge to an arbitration provision, in the

absence of an underlying dispute or imminent injury, to be

nonjusticiable. See, e.g., Bowen, 233 F.3d 1331; Lee v. Am.

Express Travel Related Servs., No. 07-04765, 2007 WL 4287557, at

*5 (N.D. Cal. Dec. 6, 2007) (concluding that plaintiffs “have

not and cannot allege any damage because they do not have a

dispute with defendants that they tried unsuccessfully to

litigate as a class action”); Rivera v. Salomon Smith Barney

Inc., No. 01 Civ. 9282, 2002 WL 31106418, at *6-7 (S.D.N.Y.

Sept. 20, 2002) (recognizing that plaintiff lacked standing to

seek declaratory relief on arbitration provision because she did

not “file[] or serve[] any lawsuit alleging that [defendant] . .

. [or] anyone representing any of the defendants has informed

her that they will seek to invoke the Arbitration Policy”);

Tamplenizza v. Josephthal & Co., 32 F. Supp. 2d 702, 704

Plaintiffs do not allege that they were coerced into signing an
arbitration provision in exchange for exercising a statutory
right.

15
(S.D.N.Y. 1999) (recognizing as nonjusticiable challenge to

arbitration provision, absent sufficient indications that it

would be invoked). Notably, some courts have premised such

decisions on the ripeness doctrine. See Ruckelshaus v. Monsanto

Co., 467 U.S. 986, 1019-20 (1984) (recognizing lack of ripeness

on whether arbitration will provide reasonable compensation,

where plaintiff "did not allege or establish that it had been

injured by actual arbitration under the statute”); Bd. of Trade

v. Commodity Futures Trading Comm’n, 704 F.2d 929, 932 (7th Cir.

1983) (concluding that threatened enforcement of arbitration

rule did not establish ripeness).

The Plaintiffs rely on the Second Circuit’s decision in

Ross v. Bank of America, N.A., for the proposition that they

suffered an injury-in-fact and therefore possess standing. See

524 F.3d 217 (2d Cir. 2008). In Ross, a group of plaintiffs

sued Bank of America and Citibank, among others, because their

credit card agreements included provisions imposing arbitration

“as the sole method of resolving disputes relating to the credit

accounts” and disallowing class action proceedings. Id. at 220.

The Ross plaintiffs, however, were pursuing a different

proposition than we face here. They claimed that the agreements

violated the antitrust statutes because the banks had colluded

“to constrict the options available to cardholders”; they did

not simply allege that the provision alone caused them injury.

16
Id. at 223. The Second Circuit held that the plaintiffs

possessed standing “in terms of the antitrust injuries that the

cardholders have asserted,” observing that “one form of

antitrust injury is ‘[c]oercive activity that prevents its

victims from making free choices.’” Id. (emphasis added)

(quoting Associated Gen. Contractors of Cal., Inc. v. Cal. State

Council of Carpenters, 459 U.S. 519, 528 (1983)). Our situation

is distinguishable — the Plaintiffs have not alleged antitrust

violations or collusion by credit card companies. We thus agree

with the Defendants that Ross does not support the Plaintiffs’

argument on standing. 14

Turning to Count II, we recognize that this claim turns on

the possibility of collecting damages under the WVCCPA for the

14
The Plaintiffs also rely on Arnold v. United Cos. Lending
Corp., for the proposition that an arbitration agreement
“contain[ing] a substantial waiver of the borrower’s rights . .
. while preserving the lender’s right to a judicial forum . . .
is unconscionable.” 511 S.E.2d 854, 862 (W. Va. 1988). Arnold,
however, involved certified questions concerning arbitration
provisions, and the ruling was premised on the presumption that
“some controversy remains before the circuit court.” Id. at
858. Thus, Arnold did not present a standing issue. The
Plaintiffs also rely on State ex rel. Dunlap v. Berger, and
assert that arbitration provisions are unconscionable because
they are rarely read or understood by cardholders. 567 S.E.2d
265, 274 (W. Va. 2002). Dunlap addressed the merits of the
unconscionability issue only, not the question of standing. Id.
at 269. These West Virginia decisions thus do not aid our
analysis.

17
Defendants’ conduct. 15 The Plaintiffs contend that Moses and the

other Plaintiffs seek to “redress th[e] wrong” of allegedly

unconscionable arbitration provisions under West Virginia law.

Br. of Appellants 25. In order to award damages, however, a

court would be required to first decide that the arbitration

provisions are unconscionable, or that the Defendants engaged in

unconscionable conduct. Because we have already concluded that

this issue is nonjusticiable, the Plaintiffs lack Article III

standing to pursue Count II.

B.

We must now analyze the issues presented with respect to

the district court’s dismissal of Count III of the Federal

Complaint. As explained below, we also affirm the Dismissal

Opinion with respect to this claim.

We first examine the Plaintiffs’ contention that the

district court erroneously dismissed Count III of the Federal

Complaint, which alleges that Defendants engaged in unfair and

15
In Count II, the Plaintiffs claim $1,000 for each
violation of the WVCCPA, under sections 46A-5-101 and/or 46A-5-
105. Section 46A-5-101(1) provides that a debtor who can show
that his or her creditor violated Chapter 46A “has a cause of
action to recover actual damages and . . . a penalty [of] . . .
not less than one hundred dollars nor more than one thousand
dollars.” Pursuant to section 46A-5-105, “if a creditor has
willfully violated the provisions of this chapter, . . . in
addition to the remedy provided in [section 46A-5-101], the
court may cancel the debt when the debt is not secured by a
security interest.”

18
deceptive trade practices, in violation of the WVCCPA. More

specifically, it asserts that, in failing to disclose their

trademark licensing relationships and their physical addresses

on credit cards, the Defendants misled the class members with

respect to the corporate entities and geographical addresses of

their creditors. For such deceptive practices, the Plaintiffs

maintain that section 46A-6-106 of the WVCCPA permits them to

collect statutory damages of $200 per violation. Because the

state court dismissed Count III with respect to the original

parties only, we will separately examine the Plaintiffs’

contentions with regard to both the original parties and the

added parties.

1.

In 2005, the state court dismissed Count III of the State

Complaint under West Virginia Rule 12(b)(6), for failure to

state a claim upon which relief can be granted. The Dismissal

Opinion dismissed the virtually identical Count III of the

Federal Complaint under the law of the case doctrine and 28

U.S.C. § 1450. 16 Pursuant to the law of the case doctrine, “a

16
The Plaintiffs contend that Count III of the Federal
Complaint contains “material revisions” from the State
Complaint. Br. of Appellants 33. This contention is without
merit, however, because the only revisions made to the Federal
Complaint are not materially distinct allegations. First, the
Plaintiffs simply added the allegation that Sears and SNB were
likely not the true and correct owners of the accounts because
(Continued)
19
court should not reopen issues decided in earlier stages of the

same litigation.” Agnostini v. Felton, 521 U.S. 203, 236

(1997). Similarly, under § 1450, “[a]ll injunctions, orders,

and other proceedings had in such [state court] action prior to

its removal shall remain in full force and effect until

dissolved or modified by the district court.” See also Granny

Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers

Local No. 70, 415 U.S. 423, 436 (1974) (“After removal, the

federal court ‘takes the case up where the State court left it

off.’” (quoting Duncan v. Gegan, 101 U.S. 810, 812 (1880))). As

the Supreme Court explained in Granny Goose Foods, in

recognizing that the underlying state court rulings are

effective in federal court, the interests of judicial economy

they sold them as “securitized assets” to unknown parties.
Federal Complaint ¶ 19, n.2. Second, the Plaintiffs contend
that the Federal Complaint alleges — in contrast to the State
Complaint — that SNB has disappeared or has been liquidated.
These revisions merely reflect a change in the Defendants’
situation, however, and do not affect the state court’s
dismissal of its Count III. Third, the Plaintiffs also claim
that they added specific statutes to Count III of the Federal
Complaint. These are all grounded in West Virginia law,
however, and the state court ruled that the Original Plaintiffs
have failed to allege a cause of action under West Virginia law.
Finally, the Dismissal Opinion correctly observed that, in
response to the Defendants’ motion to dismiss the Federal
Complaint, the Plaintiffs addressed Count III simply by
incorporating by reference the arguments they had made in state
court.

20
are promoted and the parties’ rights are protected. See 415

U.S. at 435-36.

Although most of the decisions invoking § 1450 relate to

state court injunctions and interlocutory rulings in removed

federal cases, their reasoning extends to proceedings such as

this, where a federal court must address a claim that has been

previously dismissed in state court. The utilization of § 1450

in this setting thus advances the principles that it seeks to

promote — judicial economy and protection of the parties’ rights

— and also implicates the law of the case doctrine. In sum, the

Plaintiffs have not presented us with any reason for disturbing

the state court’s ruling on Count III as to the Original

Plaintiffs.

2.

Because Citibank and SHC were first made defendants in the

Federal Complaint (the state court found that Citibank was not a

defendant in the State Complaint), we must assess Count III with

regard to these additional defendants. Similarly, because Moses

and the Subclass A plaintiffs were added as plaintiffs in the

Federal Complaint, we must analyze Count III as to them. As

explained below, the new plaintiffs lack standing to pursue

Count III against Citibank and SHC because the Federal Complaint

fails to sufficiently allege an injury or threatened injury.

In that respect, the Plaintiffs contend that the Defendants

21
 engage in a definite and elaborate scheme and unfair
method of doing business so that consumers and credit
cardholders may not readily locate either any
telephone number or physical mailing address or actual
place of business other than post office boxes and
other than so-called “Customer Service” 800 numbers.

Federal Complaint ¶ 57. The Plaintiffs also allege that “Sears

National Bank is not in fact and in law the owner of the

trademarks” of the credit cards, as Sears has led its consumers

to believe. Id. at ¶ 55. The Plaintiffs allege that Sears and

Citibank caused SNB to be liquidated and dissolved, “without any

merger or supersedes clauses in any agreement upon which a Sears

cardholder may rely,” and classify the Defendants’ actions as a

“classic ‘shell’ game.” Id. at ¶ 56, 58. They assert that

Citibank continues a pattern of “deceptive practices” and

“should similarly be enjoined from such practices” for violation

of West Virginia Code section 46A-6-102(f)(3), (f)(4). 17 Id. at

¶ 60.

The Plaintiffs have failed, however, to explain how they

were or could be injured by the alleged “tremendous confusion”

created by defendants’ conduct. Federal Complaint ¶ 56. The

solution to this problem, they maintain, is that Citibank

17
Under the WVCCPA, “unfair trade practices” include:
“[c]ausing likelihood of confusion or of misunderstanding as to
affiliation, connection or association with or certification by
another” and “[u]sing deceptive representations or designations
of geographic origin in connection with goods or services.” W.
Va. Code § 46A-6-102(7)(C),(7)(D) (renumbered 2005).

22
“should be ordered to place the physical location and street

address on their credit cards as to where a cardholder may

dispute dealings of defendants, including service of legal

process.” Id. at 60. Again, they fail to explain how such a

mandate would have assisted them in locating the Defendants, or

how any of the Plaintiffs were harmed by the absence of such a

disclosure.

Although the Plaintiffs seek to utilize the WVCCPA as a

means to secure standing, this effort also fails. The WVCCPA

provides that “unfair methods of competition and unfair or

deceptive acts or practices” include

[t]he act, use or employment by any person of any
deception, fraud, false pretense, false promise or
misrepresentation, or the concealment, suppression or
omission of any material fact with intent that others
rely upon such concealment, suppression or omission,
in connection with the sale or advertisement of any
goods or services, whether or not any person has in
fact been misled, deceived or damaged thereby.

W. Va. Code § 46A-6-102(7)(M) (emphasis added). In order to

invoke this provision, however, a plaintiff is obliged to plead

with particularity that defendants have fraudulently

misrepresented their identity to consumers, or intended that

others rely on the omission of a correct address and phone

number. See Fed. R. Civ. P. 9(b). No such pleading was

presented, and a cursory reference to a “shell game” and “a

pattern of deceptive practices” is simply not sufficiently

23
particular to proceed. See Garvin v. S. States Ins. Exch. Co.,

329 F. Supp. 2d 756, 760 (N.D. W. Va. 2004) (concluding that, on

fraud claims, elements pleaded with particularity include time,

place, and contents of false representations), aff’d, No. 05-

1812, 2006 U.S. App. LEXIS 1593 (4th Cir. Jan. 23, 2006).

Finally, although the Plaintiffs allege in Count III that

locating the actual place of business of the Defendants causes

extreme difficulty, the state court observed that “[t]his is a

rather difficult point for Plaintiffs to maintain because they

have, it seems, managed to sue the Defendants.” State Court

Opinion 7. In any event, the Sears credit card agreement states

that SNB, as issuer, is an affiliate of Sears. J.A. 51

(defining “we,” “us,” and “our” as “Sears National Bank (an

affiliate of Sears) or any subsequent holder of the account or .

. . any servicer of your account authorized by us”). For these

reasons, the Dismissal Opinion must be affirmed as to Count III

— with respect to both Moses and the Subclass A plaintiffs —

because they lack standing to pursue it.

C.

Having disposed of the three counts that were first pursued

in the State Complaint, we turn to Counts IV and V, the claims

alleged for the first time in the Federal Complaint. We begin

with Count IV.

24
 1.

The district court dismissed Count IV under Rule 12(b)(6)

for failure to state a claim upon which relief can be granted.

If we disagree with that ruling, we are nonetheless entitled to

affirm on different grounds “if fully supported by the record.”

Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 361 n.3

(4th Cir. 1994). Because this record reveals that none of the

Plaintiffs — i.e., the Original Plaintiffs, the Subclass A

plaintiffs, or Moses — has standing to pursue Count IV, we

affirm for that reason. See Davis v. Fed. Election Comm’n, 128

S. Ct. 2759, 2769 (2008) (“A party facing prospective injury has

standing to sue where the threatened injury is real, immediate,

and direct.”); Bowen, 233 F.3d at 1340 (“A threatened injury

must be ‘certainly impending’ to constitute injury in fact.”

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))).

In Count IV, the Plaintiffs allege violations of the

Consent Decree and seek statutory damages for violations of the

WVCCPA (specifically section 46A-6-104). In the Decree, Sears

was ordered not to “[c]ollect any debt (including any interest,

fee, charge, or expense, incidental to the principal obligation)

that has been legally discharged in bankruptcy proceedings and

that respondent is not permitted by law to collect.” Consent

Decree 3. Count IV alleges that Sears violated the Decree and

the WVCCPA by filing the Collection Suit.

25
 The state court terminated the Collection Suit in March

2002 for nonprosecution, and Count IV fails to plead any facts

to show that Sears had “collect[ed] any debt” from Moses either

before or after termination of the Collection Suit. The

Plaintiffs contend, however, that “the law suit [sic],

nonetheless, constitutes . . . a continuing violation of the

[Consent Decree] . . . until the date of [the Collection Suit’s]

dismissal.” Federal Complaint ¶ 43. To the contrary, the

Collection Suit could not be classified as a threatened

violation of the Consent Decree.

The Collection Suit sought the enforcement of a security

interest, not the collection of a debt, and “[a] discharge in

bankruptcy . . . ordinarily does not wipe out previously

perfected security interests in tangible personal property. The

lienholder retains a right of repossession, subject, however, to

the bankrupt’s possible right of redemption.” Arruda v. Sears

Roebuck & Co., 310 F.3d 13, 16 (1st Cir. 2002); see also Farrey

v. Sanderfoot, 500 U.S. 291, 297 (1991) (“Ordinarily, liens and

other secured interests survive bankruptcy.”); Johnson v. Home

St. Bank, 501 U.S. 78, 83 (1991) (concluding that Chapter 7

liquidation “extinguishes only the personal liability of the

debtor” (internal quotation marks omitted) (emphasis in

original)). Because the Consent Decree addressed conduct not

26
alleged in Count IV, that claim fails to allege an injury, or a

threatened or imminent injury.

2.

The Plaintiffs also allege in Count IV that Sears’s conduct

— filing suit against Moses while knowing that she had filed

bankruptcy, and its purported violation of the Consent Decree —

entitles them to recover statutory damages under the WVCCPA.

This aspect of Count IV also fails, however, because Moses and

the Subclass A plaintiffs lack standing to collect such damages.

In Orlando v. Finance One of West Virginia, Inc., the

Supreme Court of Appeals of West Virginia ruled that a plaintiff

cannot collect damages under sections 46A-6-102(f) or 46A-6-104

of the WVCCPA if he “ha[s] suffered no ‘ascertainable loss of

money or property’ as a result of the inclusion of” an allegedly

unconscionable provision in a contract. 369 S.E.2d 882, 888 (W.

Va. 1988) (quoting W. Va. Code § 46A-6-106). In Orlando, the

plaintiffs challenged a purported waiver of a homestead and

personal property exemption in their loan contract with Finance

One. Id. at 883. After the Plaintiffs defaulted on their loan,

Finance One instituted collection activities. It did not,

however, seek judicial enforcement of the waiver clause. Id.

As in this proceeding, the plaintiffs sued Finance One for a

declaration that the waiver clause was unconscionable, and

27
seeking statutory penalties under the WVCCPA because inclusion

of the clause was an unfair and deceptive act or practice. Id.

The state supreme court concluded that the Orlando

plaintiffs could not collect damages for violations of the

WVCCPA because “Finance One made no attempt to enforce [the

waiver clause],” and, therefore, “[plaintiffs] suffered no

ascertainable loss of money or property.” Orlando, 369 S.E.2d

at 888. Similarly, Moses and the other Plaintiffs have never

alleged a loss of money or property due to the inclusion of an

alleged unconscionable provision in their credit card

agreements. In such circumstances, they lack standing to pursue

a claim for damages under Count IV. 18

D.

Count V purports to reallege the allegations of Counts I

through IV on behalf of Subclass A, a limited number of

plaintiffs who held credit cards between June 4, 1997, and

November 18, 2003, and against whom Sears or SNB either enforced

or attempted to enforce a security interest while the cardholder

18
The Plaintiffs also make an argument with respect to
common law fraud. This issue was mentioned in passing in the
Federal Complaint, but nothing was pleaded “with particularity”
pursuant to Rule 9(b). The district court did not address this
point, and neither do we. See In re Wallace and Gale Co., 385
F.3d 820, 835 (4th Cir. 2004) (observing that failure to raise
argument before district court results in waiver on appeal,
absent exceptional circumstances).

28
agreement contained the arbitration provision. These

plaintiffs, however, have no greater cognizable injuries or

causes of action than the other plaintiffs, as they have not

shown either the invocation or the impending invocation of the

arbitration provision. Furthermore, because Moses satisfies the

requirements of Subclass A, the conclusions we have made

regarding Moses are attributable to the Subclass A plaintiffs.

We thus affirm the dismissal of Count V for lack of standing.

E.

Finally, we turn to the Plaintiffs’ several allegations of

procedural error. First and foremost, we are generally unable

to review the propriety of the denial of a motion to remand.

“It is, of course, beyond question that an order of a district

court denying a motion to remand, standing alone, is not a final

order appealable under 28 U.S.C. § 1291.” Three J Farms, Inc.

v. Alton Box Bd. Co., 609 F.2d 112, 114 (4th Cir. 1979).

Nevertheless, the Plaintiffs argue that this case was improperly

removed and that we can now address that issue. In Aqualon Co.

v. Mac Equipment, Inc., however, we recognized that, even if

removal was improper, the judgment should not be disturbed if

the court possessed jurisdiction to enter it. See 149 F.3d 262,

264 (4th Cir. 1998). Because the district court possessed

subject matter jurisdiction, we will not disturb the Remand

Denial.

29
 The district court properly concluded under CAFA that it

possessed subject matter jurisdiction at the time of judgment.

See 28 U.S.C. § 1332(d). 19 Under CAFA, a class action may be

initiated in federal court if (1) the controversy exceeds the

sum or value of $5,000,000; (2) the claim was originally filed

as a class action under Rule 23 of the Federal Rules or a

comparable state statute; and (3) any member of the class of

plaintiffs is a citizen of a state different from any defendant.

28 U.S.C. § 1332(d)(1)(B), (d)(2)(A). Here, the Federal

Complaint seeks damages of approximately $370 million; the claim

was filed under West Virginia Rule 23 (governing class actions);

and the Plaintiffs are citizens and residents of West Virginia,

while the Defendants are citizens of Illinois, South Dakota, and

Arizona. In those circumstances, the court possessed diversity

jurisdiction over the Federal Complaint.

The Plaintiffs contend, however, that the CAFA provisions

do not apply to the Federal Complaint, because the State

Complaint was filed in November 2003, prior to CAFA being

enacted. CAFA became effective in February 2005 and, according

to the Plaintiffs, the Federal Complaint relates back to

November 2003. It is uncontested that CAFA applies to any suit

19
Although the Remand Denial concluded that the court
possessed diversity jurisdiction under CAFA, it appears to have
also possessed diversity jurisdiction under § 1332(a).

30
commenced on or after February 18, 2005. See Pub. L. No. 109-2,

§ 9, 119 Stat. 14 (2005); Adams v. Ins. Co. of N. Am., 426 F.

Supp. 2d 356, 367 (S.D. W. Va. 2006). The Remand Denial

correctly determined, however, that CAFA applies here,

concluding that the Federal Complaint “commenced” a new action

when it was filed in 2006, because it alleged claims that were

“factually and legally distinct” from those in the State

Complaint. Remand Denial 8.

Because state law controls the issue of whether an amended

complaint has “commenced” a new action, we look to West Virginia

Rule of Civil Procedure 15(c) for guidance. See Adams, 426 F.

Supp. 2d at 370. Pursuant thereto, an amendment of a complaint

relates back when it “ar[ises] out of the conduct, transaction,

or occurrence set forth or attempted to be set forth in the

original pleading.” W. Va. R. Civ. P. 15(c)(2). In other

words, a complaint will relate back when its amendments “state a

cause of action growing out of the specified conduct of the

defendant which gave rise to the original cause of action.”

Adams, 426 F. Supp. 2d at 375 (citing Roberts v. Wagner

Chevrolet-Olds, Inc., 258 S.E.2d 901, 903 (W. Va. 1979)). It

follows that, if an amended complaint states a claim growing out

of conduct distinct from the original complaint, the amended

complaint does not relate back.

31
 In this situation, Counts IV and V present new claims that

are premised on conduct and occurrences that are readily

distinct from the allegations of the State Complaint, and the

Federal Complaint thus does not relate back. For example, the

Federal Complaint alleges Sears’s enforcement of its security

interests and violation of the Consent Decree, and it added

Moses and a new subclass of plaintiffs presumably affected by

such conduct. Because these are distinct and new allegations,

the Federal Complaint does not, pursuant to state Rule 15(c)(2),

relate back to the filing of the State Complaint. CAFA thus

applies here, and the district court possessed subject matter

jurisdiction of the Federal Complaint. Any alleged procedural

deficiency in the removal process thus does not affect the final

judgment of the district court. 20

20
The district court did not abuse its discretion in filing
the Reconsideration Denial and denying the Plaintiffs’ request
for amendment of the Federal Complaint. First, we have
recognized three potential grounds for reconsideration: (1) to
accommodate an intervening change in controlling law, (2) to
account for new evidence not available at trial, or (3) to
correct a clear error of law to prevent manifest injustice.
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). The
Plaintiffs did not assert any of these grounds; thus, their
motion was properly denied. The court also did not abuse its
discretion in declining to grant leave to amend the Federal
Complaint. In Healthsouth Rehabilitation Hospital v. American
National Red Cross, we explained that disposition of a motion to
amend lies within the sound discretion of the district court.
101 F.3d 1005, 1010 (4th Cir. 1996). The court need not
articulate grounds for denying leave to amend, “as long as its
reasons are apparent.” Id. The Plaintiffs’ proposed amendments
(Continued)
32
 IV.

Pursuant to the foregoing, the judgment of the district

court is affirmed.

AFFIRMED

— relabeling Count V as Count IV and deleting all references to
the Consent Decree — would be futile; therefore, the district
court did not err in this respect. Finally, we are not
satisfied that the Plaintiffs sufficiently requested a hearing
by way of their February 23, 2007 letter to the court. In any
event, nothing in the Federal Rules of Civil Procedure obliged
the court to hold a hearing in that situation; thus, the court
could not have abused its discretion in declining to do so.

33