Busby v. Capital One, N.A.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WANDA BUSBY, :
:
Plaintiff, : Civil Action No.: 10-1025 (RMU)
:
v. : Re Document No.: 9
:
CAPITAL ONE, N.A. et al., :
:
Defendants. :

MEMORANDUM OPINION

DENYING THE PLAINTIFF’S MOTION TO REMAND; DENYING WITHOUT PREJUDICE THE
PLAINTIFF’S MOTION TO JOIN AN ADDITIONAL DEFENDANT

I. INTRODUCTION

This matter comes before the court on the pro se plaintiff’s motions to remand this case

to the Superior Court for the District of Columbia and to join an additional defendant to the suit.

Because the defendants have demonstrated that they properly removed this matter to the district

court, the court denies the plaintiff’s motion to remand. Furthermore, because the plaintiff’s

motion to join an additional defendant is improper at this juncture, the court denies the motion

without prejudice.

II. FACTUAL & PROCEDURAL BACKGROUND

On May 18, 2010, the plaintiff commenced this action in the Superior Court for the

District of Columbia against Capital One, N.A. (“Capital One”) and an attorney, David Prensky.

See generally Compl. The plaintiff alleged that the defendants engaged in tortious conduct in

connection with a promissory note and deed of trust executed by the plaintiff in 1996. See

generally id. In her complaint, the plaintiff asserted a variety of causes of action against the
defendants based on District of Columbia law, including fraud, breach of fiduciary duty and

conversion. Notice of Removal ¶ 1.

On June 9, 2010, the plaintiff amended her complaint to include additional claims under

the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq.

See generally Am. Compl.; Notice of Removal ¶ 4. On June 17, 2010, Capital One filed a notice

of removal in this court, asserting that the district court has original jurisdiction based on the

presence of a federal question and the diversity of the parties. Notice of Removal ¶¶ 10-12.

On July 16, 2010, the plaintiff moved to remand this case to the Superior Court and to

join Chasen & Chasen, the law firm with which Prensky is associated, as a defendant in this

action. See generally Pl.’s Mot. to Remand & Join Party (“Pl.’s Mot.”). The defendants oppose

both motions. See generally Capital One’s Opp’n to Remand & Joinder (“Capital One’s

Opp’n”); Prensky’s Opp’n to Remand; Prensky’s Opp’n to Joinder. With the plaintiff’s motions

ripe for adjudication, the court turns to the applicable legal standards and the parties’ arguments.

III. ANALYSIS

A. The Court Denies the Plaintiff’s Motion to Remand

The plaintiff contends that this case was not properly removed from the Superior Court

because (1) this court lacks subject matter jurisdiction over the plaintiff’s claims, (2) the

defendants did not provide timely written notice of removal to the plaintiff, and (3) defendant

Prensky did not unambiguously consent to the removal of the action. See generally Pl.’s Mot.;

Pls.’ Reply. The court considers these contentions in turn.

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 1. The Court Has Subject Matter Jurisdiction Over the Plaintiff’s Claims

The plaintiff argues that removal is improper because the court lacks subject matter

jurisdiction over the plaintiff’s claims. Pl.’s Mot. at 13-17; Pl.’s Reply at 13-20. The defendants

maintain that the court has federal question jurisdiction over the plaintiff’s RICO claim and may

exercise supplemental jurisdiction over the plaintiff’s state law claims. Capital One’s Opp’n at

5-9; Prensky’s Opp’n to Remand at 8-10. In addition, the defendants contend that the court has

diversity jurisdiction over all of the plaintiff’s claims. Capital One’s Opp’n at 9-15; Prensky’s

Opp’n to Remand at 4-7.

The federal removal statute provides that “any civil action brought in a State court of

which the district courts of the United States have original jurisdiction, may be removed by the

defendant or the defendants” from state court to federal court. 28 U.S.C. § 1441(a). The burden

of establishing the district court’s original jurisdiction rests upon the party seeking removal.

Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). The district courts have original

jurisdiction over “all civil action arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331; see also id. § 1441(b) (“Any civil action of which the district courts

have original jurisdiction founded on a claim or right arising under the Constitution, treaties or

laws of the United States shall be removable without regard to the citizenship or residence of the

parties.”). The district courts also have original jurisdiction over actions involving citizens of

different states where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).

In her amended complaint, the plaintiff has asserted claims against the defendants based

on RICO, a federal statute. See Am. Compl. ¶¶ 136-210. These claims plainly “arise under”

federal law for purposes of removal. See, e.g., Leitner v. United States, 679 F. Supp. 2d 37, 41

(D.D.C. 2010) (observing that removal under 28 U.S.C. § 1441(b) was proper based on the

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plaintiff’s allegation that the defendants violated various federal statutes, including RICO).

Accordingly, removal of the plaintiff’s RICO claims was proper based on the district court’s

federal question jurisdiction. See 28 U.S.C. §§ 1441(a)-(b).

Once a case has been removed, the district court has original jurisdiction over the

plaintiff’s claim under federal law, and may thus “exercise supplemental jurisdiction over

accompanying state law claims so long as those claims constitute ‘other claims that . . . form part

of the same case or controversy.’” City of Chicago v. Int’l College of Surgeons, 522 U.S. 156,

164-65 (1997) (holding that the district court properly exercised federal question jurisdiction

over the federal claims removed from state court, “and properly recognized that it could thus also

exercise supplemental jurisdiction over [the plaintiff’s] state law claims” (citing 28 U.S.C. §

1367)). Indeed, the Ninth Circuit has observed that “[i]f [a] district court exercise[s] original

jurisdiction over [a] RICO claim because it ‘arises under’ federal law, then it would . . . also

properly exercise[] its discretion to adjudicate sufficiently related state law claims pursuant to its

pendent jurisdiction.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988).

Here, the plaintiff does not dispute that her federal and D.C. law claims arise out of the

same facts – namely, her alleged default on a 1996 loan and the defendants’ subsequent efforts to

foreclose on her property. See generally Pl.’s Mot.; Pl.’s Reply; see also generally Am. Compl.

Accordingly, the plaintiff’s federal and D.C. law claims form part of the same case or

controversy, authorizing the court to exercise of supplemental jurisdiction over the plaintiff’s

D.C. law claims. See 28 U.S.C. § 1367(a).

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 The plaintiff asserts that even if the court has the authority to exercise supplemental

jurisdiction over the plaintiff’s D.C. law claims, it is not required to do so.1 Pl.’s Mot. at 19-21;

Pl.’s Reply at 25. The plaintiff urges the court not to exercise supplemental jurisdiction over

these claims and to remand the entire case, including the RICO claims, to the Superior Court

because her claims under D.C. law “predominate” over her RICO claims. Pl.’s Mot. at 19-21;

Pl.’s Reply at 25. Alternatively, the plaintiff argues that the court should at the very least remand

the D.C. law claims to the Superior Court. Pl.’s Mot. at 21.

As an initial matter, the court disagrees with the plaintiff’s assessment that her state law

claims “predominate.” The plaintiff devotes more than seventy paragraphs of her amended

complaint – nearly a third of the entire pleading – to her RICO claims. See Am. Compl. ¶¶ 136-

210. Thus, it does not appear that the plaintiff’s federal claims form such an insignificant part of

the case that remand of the entire case would be appropriate. Cf. Alexander v. Goldome Credit

Corp., 772 F. Supp. 1217, 1225 (M.D. Ala. 1991) (concluding that remanding the entire case was

appropriate because the federal claims were “relatively insignificant” compared to the state law

claims).

1
The plaintiff bases her argument that the court has the discretion to remand not on 28 U.S.C. §
1367(a), which governs removal, but rather on 28 U.S.C. § 1441(c), which provides that

[w]henever a separate and independent claim or cause of action within the
jurisdiction conferred by section 1331 of this title is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therein, or, in its
discretion, may remand all matters in which State law predominates.

28 U.S.C. § 1441(c) (emphasis added). Yet § 1441(c) applies only to “separate and independent”
claims and does not apply to “related claims” like the ones at issue here. See Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 354-55 & n.11 (1988). Ultimately, however, the distinction
between §§ 1367(a) and 1441(c) is immaterial, “for the supplemental jurisdiction analysis at this
stage is essentially the same under either statute.” McCully v. Mink, 2009 WL 4730467, at *3 (D.
Col. Dec. 9, 2009) (citing Westinghouse Credit Corp. v. Thompson, 987 F. 2d 682, 685 (10th Cir.
1993)).

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 Moreover, the plaintiff’s proposals run afoul of the Circuit’s pronouncement that “section

1367(a) authorizes a district court to exercise its supplemental jurisdiction in mandatory

language.” Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416, 421 (D.C. Cir. 2006) (collecting

authorities); accord, e.g., McCoy v. Webster, 47 F.3d 404, 406 n. 3 (11th Cir.1995) (“Section

1367(a) requires the district court to exercise supplemental jurisdiction over claims which are

closely related to claims over which the district court has original jurisdiction.” (emphasis

added)). Given the undisputed fact that the RICO claims arise out of the same facts underlying

the plaintiff’s D.C. law claims, the court is required to exercise supplemental jurisdiction over

her claims based on D.C. law. See Lindsay, 448 F.3d at 421.

In sum, 28 U.S.C. §§ 1441(a) and 1441(b) authorized the defendants to remove the

plaintiff’s RICO claims to this court. Furthermore, the court concludes that the exercise of

supplemental jurisdiction over the plaintiff’s state law claims is appropriate because these claims

arise out of the same facts on which the RICO claims are premised. Accordingly, the court has

subject matter jurisdiction over the plaintiff’s claims.2

2. The Plaintiff Was Provided Prompt Written Notice of Removal

The plaintiff contends that the defendants failed to provide her timely written notice of

removal. Pl.’s Mot. at 3-11; Pl.’s Reply at 2-12. The plaintiff maintains that she never received

a copy of the notice of removal that was allegedly mailed to her by counsel for Capital One, and

that Capital One has on other occasions failed to properly serve the plaintiff with documents

related to this case. Pl.’s Mot. at 6-11; Pl.’s Reply at 2-12. The defendants respond that the

notice of removal was mailed to the plaintiff at her residence, e-mailed to the plaintiff and sent to

2
Because the court concludes that it has subject matter jurisdiction based on the existence of a
federal question, it does not reach the defendants’ alternative contention that the court has
diversity jurisdiction.

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the plaintiff through the Superior Court’s electronic document filing system.3 Capital One’s

Opp’n at 3, 17; Prensky’s Opp’n at 4.

The federal removal statute provides that “[p]romptly after the filing of such notice of

removal of a civil action the defendant or defendants shall give written notice thereof to all

adverse parties.” 28 U.S.C. § 1446(d). Failure to provide timely written notice of removal to the

plaintiff may result in remand. See, e.g., Rubio v. Allegheny Int’l, Inc., 659 F. Supp. 62, 63 (S.D.

Fla. 1987). Although one district court has suggested that § 1446(d) requires actual receipt of the

notice, see Kovell v. Pa. R.R. Co., 129 F. Supp. 906, 909 (N.D. Ohio 1954), more recent

authorities hold that a good faith effort to provide written notice to the plaintiff satisfies the

requirement absent any prejudice to the plaintiff, see Alston v. Sofa Express, Inc., 2006 WL

3331685, at *2 (S.D. Ohio Nov. 15, 2006); Arnold v. CSX Hotels, Inc., 212 F. Supp. 2d 634, 637

(S.D. W.Va. 2002) (citing L&O P’ship No. 2 v. Aetna Casualty & Surety Co., 761 F. Supp. 549

(N.D. Ill. 1991)); see also Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d 246, 248

(S.D.N.Y. 2000) (concluding that remand was not appropriate based on the defendant’s alleged

failure to provide timely notice of removal because “the delay was relatively short and no action

was taken by the state court between the time of actual removal and the time of the requisite

notice” such that “the alleged defect [was] harmless and, not being jurisdictional, creates no basis

for remand”).

In this case, Capital One filed the notice of removal on June 17, 2010. See generally

Notice of Removal. The certificate of service accompanying the notice stated that the notice had

been mailed to the plaintiff at a specified address in Northwest Washington D.C. Id., Certificate

3
Prensky also argues that the plaintiff waived any objection to defects in the notice of removal.
Prensky’s Opp’n at 7-8. The court does not reach this issue because, as discussed below, it
concludes that the notice of removal was not procedurally defective.

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of Service. The defendants have submitted a copy of a D.C. government property record

indicating that that address corresponds with a property owned by the plaintiff. Prensky’s

Opp’n, Ex.12. Indeed, the plaintiff does not dispute that she resides at that address. See

generally Pl.’s Mot.; Pl.’s Reply.

Instead, the plaintiff contends that the certificate of service cannot be credited because

Capital One has improperly attempted to serve other filings on the plaintiff through this court’s

Electronic Case Filing system (“ECF”), to which the pro se plaintiff does not have access. Pl.’s

Mot. at 8-9; Pl.’s Reply at 11. Yet the certificates of service that accompanied those other filings

stated accurately that the defendants were attempting, albeit improperly, see LCvR 5.4, to serve

the plaintiff through ECF. Pl.’s Mot., Exs. A-C. By contrast, the certificate of service that

accompanied the notice of removal specifically stated that the document had been mailed to the

plaintiff at the specified address. Notice of Removal, Certificate of Service. Thus, even if those

subsequent certificates of service indicate that certain filings were not properly served on the

plaintiff, they do not call into question the accuracy of the certificates of service.

The evidence also indicates that Capital One provided the plaintiff a written copy of the

notice of removal when it served her with a copy of the certificate of removal filed in the

Superior Court. Capital One’s Opp’n at 3. Specifically, on June 18, 2010, Capital One filed a

certificate of removal in the Superior Court, attaching the notice of removal and the exhibits

thereto. See generally id., Ex. A. The certificate of removal was, in turn, served on the plaintiff

through the Superior Court’s electronic filing system. Id., Ex. B (Proof of Service); see also

D.C. SUPER. CT. CIV. R. 5(b)(2)(D) (authorizing the electronic service of documents and

specifying that “[s]ervice by electronic means is complete on transmission”). Although the

plaintiff complains that such “electronic service” does not constitute written notice, Pl.’s Reply

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at 4, it is clear that formal service of a document in a manner prescribed by the Rules of the D.C.

Superior Court satisfies the written notice requirement.4 Cf. Runaj v. Wells Fargo Bank, 667 F.

Supp. 2d 1199, 1202 (S.D. Cal. 2009) (“Section 1446(d) does not require ‘formal’ or ‘personal’

service of a notice of removal upon a plaintiff; it merely requires ‘written notice.’”).

Furthermore, on June 18, 2010, counsel for Capital One e-mailed a copy of the notice of

removal to the plaintiff. Capital One’s Opp’n at 3, Ex. D. Although the plaintiff asserts that she

did not receive a copy of the notice of removal through e-mail, just as she did not receive it

through the Superior Court’s electronic filing system or in the mail, she does not dispute that the

e-mail address to which counsel sent the notice of removal was accurate. See generally Pl.’s

Reply. In light of these various documented attempts to provide the plaintiff with notice of

removal, it is clear that the defendants made a good faith effort to provide prompt written notice

of removal to the plaintiff. See Titan Finishes Corp. v. Spectrum Sales Grp., 452 F. Supp. 2d

692, 695-96 (E.D. Mich. 2006) (holding that the defendants complied with § 1446(d) by sending

the plaintiff an e-mail and voice mail messages advising the plaintiff of the defendants’ removal

of the action and subsequently providing the plaintiff written notice of removal).

It is equally clear that even if the plaintiff did not actually receive notice in any of these

ways, she has not been prejudiced as a result. See Calderon, 101 F. Supp. 2d at 248. Within the

thirty-day deadline for objecting to removal, see 28 U.S.C. § 1447, the plaintiff filed a lengthy

motion to remand the action to the Superior Court, see generally Pl.’s Mot. Although the

4
D.C. Superior Court Rule 5(b)(3) provides that service by electronic means “is not effective if the
party making service learns that the attempted service did not reach the person to be served.” The
plaintiff asserts that because she did not receive the electronic transmission of the certificate of
removal, service was not effective. Pl.’s Reply at 4 n.12. There is, however, no evidence that
Capital One learned that the attempt at electronic service did not reach the plaintiff. See
generally Pl.’s Mot.; Pl.’s Reply.

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plaintiff complains that her failure to receive notice from the defendants impinged on her time to

challenge the removal, an issue exacerbated by the fact that she is a pro se litigant, Pl.’s Mot. at

11, the comprehensiveness and level of detail of the plaintiff’s motion belie such an assertion.

In sum, the defendants have established that they made a good faith effort to provide

prompt written notice of removal to the plaintiff. Furthermore, even if these attempts did not

result in actual receipt of notice by the plaintiff, it is clear that the plaintiff was not prejudiced as

a result. Accordingly, the court concludes that the defendants satisfied the notice requirement set

forth § 1441(d).

3. Prensky Unambiguously Expressed His Consent to Removal

The plaintiff also argues that the removal was procedurally invalid because defendant

Prensky did not unambiguously express his consent to the removal of this action. Pl.’s Mot. at

12-13; Pl.’s Reply at 13. The plaintiff contends that although the notice of removal states that

Prensky consented to removal, the notice was filed only by Capital One and Prensky did not

independently file a separate document expressing his consent. Pl.’s Mot. at 12-13; Pl.’s Reply

at 13. The defendants respond that Prensky unambiguously expressed his consent to removal by

signing the notice of removal filed by Capital One. Capital One’s Opp’n at 17-18; Prensky’s

Opp’n at 3-4.

In a multi-defendant case, removal requires the unanimous consent of all defendants

served with the complaint. See Emrich, 846 F.2d at 1193 n. 1 (noting that “[o]rdinarily . . . all

defendants in a state action must join in the petition for removal, except for nominal, unknown or

fraudulently joined parties”); Williams v. Howard Univ., 984 F. Supp. 27, 29 (D.D.C. 1997)

(observing that “it is well established that removal generally requires unanimity among the

defendants” (quoting Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995))).

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 In this case, the notice of removal filed by Capital One clearly stated that Prensky

consented to removal. Notice of Removal at 3. Moreover, Prensky signed the notice prior to

submission. Id. at 6. By so doing, Prensky clearly and unambiguously expressed his consent to

removal. See Pritchett v. Cottrell, 512 F.3d 1057, 1062 (8th Cir. 2008) (concluding that a signed

written consent attached to another defendant’s notice of removal was sufficient to satisfy the

unanimity rule); see also Harper v. AutoAlliance, 392 F.3d 195, 201-02 (6th Cir. 2004) (holding

that a statement of an individual defendant’s concurrence in another defendant’s notice of

removal satisfied the unanimity rule). Accordingly, the court determines that the defendants

unanimously and unambiguously consented to the removal of this matter.

B. The Court Denies Without Prejudice the Plaintiff’s Motion to
Join an Additional Defendant

The plaintiff has also filed a motion to join Chasen & Chasen, the law firm with which

Prensky is associated, as an additional defendant in this action. Pl.’s Mot. at 17-19. The plaintiff

asserts that she “will claim that Chasen & Chasen failed to adequately supervise Prensky, failed

to train and monitor Prensky and its other employees properly with respect to D.C. law, and that

Chasen & Chasen failed to take reasonable actions to prevent Prensky from engaging in the

wrongful acts in the complaint.” Id. at 18. The defendants contend that the plaintiffs’ motion is

procedurally improper because none of the allegations that the plaintiff intends to assert against

Chasen & Chasen are included in the operative complaint and because the plaintiff has failed to

file a proposed amended complaint with her motion, as required by Local Civil Rule 7(i) and

15.1. Capital One’s Opp’n at 18-19; see generally Prensky’s Opp’n to Joinder.

Federal Rule of Civil Procedure 20 provides that

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 [p]ersons . . . may be joined in one action as defendants if: (A) any right to relief
is asserted against them jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.

FED. R. CIV. P. 20(a). Whether particular circumstances warrant joinder is a matter left to the

court’s discretion. Carabillo v. ULLICO, Inc., 357 F. Supp. 2d 249, 255 (D.D.C. 2004) (citing

Am. Directory Serv. Agency, Inc. v. Beam, 1988 WL 33502, at *3 (D.D.C. Mar. 28, 1988)).

In this case, although the plaintiff represents that she intends to assert certain claims

against Chasen & Chasen, see Pl.’s Mot. at 18, the operative complaint does not contain any

allegations supporting claims against that proposed defendant, see generally Am. Compl.

Accordingly, because no right to relief has been asserted against Chasen & Chasen in the

operative complaint, joinder would be improper at this time. See FED. R. CIV. P. 20(a); see also

Common Cause v. Fed. Election Comm’n, 82 F.R.D. 59, 61 (D.D.C. 1979) (“Rule 20 requires as

a precondition to joinder that a right to relief be asserted against the party to be joined.”).

Although the court might otherwise construe the plaintiff’s motion as one for leave to

amend the complaint, the plaintiff has not attached to her motion a proposed amended complaint

as required under the Local Civil Rules. See LCvR 7(i) (“A motion for leave to file an amended

pleading shall be accompanied by an original of the proposed pleading as amended.”); accord

LCvR 15.1. Therefore, the court declines to construe the plaintiff’s motion as one for leave to

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amend and denies without prejudice her motion to join Chasen & Chasen as a defendant in this

action.5

IV. CONCLUSION

For the foregoing reasons, the court denies the plaintiff’s motion to remand and denies

without prejudice the plaintiff’s motion to join an additional defendant. An Order consistent

with this Memorandum Opinion is separately and contemporaneously issued this 6th day of

January, 2011.

RICARDO M. URBINA
United States District Judge

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Although in her reply, the plaintiff requests that the court defer ruling on the motion to join an
additional defendant, Pl.’s Reply at 25, deferral would be futile given the procedural defects in
the motion. Denial of the motion without prejudice provides the plaintiff the opportunity to
remedy those defects.

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