United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Associated Management
Services, Inc.'s motion to remand. (Doc. No. 22).
Defendants Capstan Healthcare, LLC d/b/a Capstan Rx, Syed
Haroon Zulfiqar d/b/a Capstan Rx, and North G Rx, LLC d/b/a
Capstan RX, oppose the motion. (Doc. No. 24). The matter is
fully briefed and ready for disposition. For the reasons set
forth below, the Court will deny the motion.
January 1, 2019, Plaintiff filed this junk fax class action
in the Eleventh Judicial Circuit in St. Charles County,
Missouri. On June 26, 2019, Defendant North G Rx, LLC, with
the consent of the other defendants, removed the action to
federal court. On July 3, 2019, Defendants filed their
joint answer to the amended complaint and asserted two
affirmative defenses that Plaintiff and/or the putative class
members lacked standing because they did not suffer concrete
and particularized harm. (Doc. No. 14 at ¶¶ 1-2).
29, 2019, Plaintiff filed this motion to remand based on
those affirmative defenses and cited St. Louis Heart
Center, Inc. v. Nomax, 899 F.3d 500 (8th Cir. 2018) in
support of its motion. In Nomax, the defendant
removed the lawsuit to federal court and then moved to
dismiss the complaint for lack of Article III standing. The
Eighth Circuit held that the plaintiff lacked Article III
standing but concluded that the proper disposition of the
matter was to remand it to state court pursuant to 28 U.S.C.
§ 1447(c). Plaintiff asserts that this principle applies
to the instant case, arguing that "Defendants should not
be able to invoke federal subject matter jurisdiction in a
particular [Telephone Consumer Protection Act] case and then
take the inconsistent position that the claims against them
should be dismissed for lack of subject matter
jurisdiction." (Doc. No. 23 at 4).
respond that Plaintiffs motion to remand is premature
because, unlike Nomax, there is no contested factual
challenge to subject matter jurisdiction presently before the
Court. Defendants argue that no motion to dismiss has been
filed, nor has any evidence been presented regarding the
question of standing in this case.
action is removable to federal court if the claims originally
could have been filed in federal court. 28 U.S.C. §
1441; In re Prempro Products Liability Litigation,
591 F.3d 613, 619 (8th Cir. 2010). The defendant bears the
burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). A case must be
remanded if, at any time, it appears that the district court
lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c);
Fed.R.Civ.P. 12(h)(3). Any doubts about the propriety of
removal are resolved in favor of remand. Wilkinson v.
Shackelford, 478 F.3d 957, 963 (8th Cir. 2007).
the Court concludes that the motion to remand is premature.
Although the Court may review its own subject matter
jurisdiction sua sponte, Hart v. United States, 630
F.3d 1085, 1089 (8th Cir. 2011), there is nothing before the
Court indicating that it lacks jurisdiction over the case.
Further, this case is readily distinguishable from
Nomax. Here, Defendant raises the issue of standing
by way of an affirmative defense, which Defendant has the
burden to prove and presumably must be developed through
discovery. This case is in the early stages of litigation,
and discovery has not yet begun. Moreover, unlike
Nomax, there is no motion to dismiss pending before
the Court. Thus, Plaintiffs motion to remand is premature and
will be denied without prejudice.
IT IS HEREBY ORDERED that Plaintiffs Motion
to Remand (Doc. No. 22) is DENIED WITHOUT
16 Conference will be set by separate order.