United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) VACATING COURT'S ORDER
GRANTING DEFENDANT'S MOTION TO DISMISS, (2) GRANTING IN
PART AND DENYING IN PART PLAINTIFF'S MOTION FOR
RECONSIDERATION, AND (3) REMANDING CASE TO THE CIRCUIT COURT
OF JACKSON COUNTY, MISSOURI
D. SMITH, SENIOR JUDGE.
is Plaintiff Timothy Detter's Motion for Reconsideration
of the Court's November 14, 2016 Order. Doc. #49.
April 21, 2016, Plaintiff filed a Petition in the Circuit
Court of Jackson County, Missouri, alleging Defendant KeyBank
violated the Fair Credit Reporting Act (“FCRA”).
Doc. #1-1. Defendant timely removed the action to this Court.
Doc. #1. Thereafter Plaintiff filed his Second Amended
Complaint, alleging Defendant violated section 1681b(f) by
accessing Plaintiff's consumer report without a
permissible purpose or authorization, and sought to represent
a class of similarly situated individuals. Doc. #26.
moved to dismiss, arguing Plaintiff lacked standing, failed
to state a claim upon which relief could be granted, and
certification of a class was inappropriate. Doc. #38. After
finding Plaintiff failed to establish he suffered an injury
in fact sufficient to confer standing, the Court granted
Defendant's motion. Doc. #47. Plaintiff now moves for
reconsideration of the Court's Order dismissing the case.
Doc. #49. Plaintiff argues the Court should: (1) modify the
judgment to the reflect the Court's dismissal is without
prejudice, (2) remand the case to the Circuit Court of
Jackson County, Missouri, and (3) award fees to Plaintiff due
to Defendant's objectively unreasonable removal of the
case. Id. at 1-2.
Court determines a plaintiff lacks standing in a case
originally filed in federal court, the appropriate remedy is
generally to dismiss the case without prejudice. Wallace
v. ConAgra Foods, Inc., 747 F.3d 1025, 1033 (8th Cir.
2014). In the event a case is removed to federal court and
the Court determines the plaintiff lacks standing, the Court
must remand the case to the state court where it was
originally filed. Id.; see also 28 U.S.C. §
1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”); Hughes
v. City of Cedar Rapids, Iowa, 840 F.3d 987, 993 (8th
Court vacates its November 14, 2016 Order granting
Defendant's motion to dismiss. Doc. #47. In light of the
Court's decision that Plaintiff lacks standing, the
appropriate remedy is not to dismiss the case, but to remand
the case to the state court where it was originally filed.
Accordingly, the Court grants in part Plaintiff's motion
to reconsider, and remands this matter to the Circuit Court
of Jackson County, Missouri.
further requests the Court award fees incurred as a result of
what Plaintiff characterizes as Defendant's objectively
unreasonable removal of the case to this Court. “An
order remanding the case may require payment of just costs
and any actual expenses, including attorney fees, incurred as
a result of the removal.” 28 U.S.C. § 1447(c). In
deciding whether to award fees, the Court considers the
“reasonableness of the removal. Absent unusual
circumstances, courts may award attorney's fees under
§ 1447(c) only where the removing party lacked an
objectively unreasonable basis for seeing removal.
Conversely, when an objectively reasonable basis exists, fees
should be denied.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005).
Petition alleges a single violation of the FCRA, a federal
statute. This Court has original jurisdiction over a claim
arising under a law of the United States. 28 U.S.C. §
1331 (“[t]he district courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.”). Furthermore, a defendant may remove an
action to a district court of the United States if the
district court has original jurisdiction over the action. 28
U.S.C. § 1441(a).
does not contest Defendant's ability to remove the
action. Rather, Defendant argues removal was objectively
unreasonable because Defendant asserted this Court had
jurisdiction for removal purposes, but later argued Plaintiff
lacked standing to bring his claim in this Court. The Court
is not persuaded. Removal of the action was proper pursuant
to removal statutes. Notably, Plaintiff did not file a motion
to remand, and could only raise arguments regarding remand in
the event this Court found Plaintiff lacked standing.
Furthermore, Defendant's motion to dismiss was not based
solely on jurisdictional arguments, but also argued Plaintiff
failed to state a claim and class certification was not
appropriate. The Court denies Plaintiff's request for