Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Silva v. Barclays Bank Delaware

United States District Court, D. Oregon

May 23, 2014

RICHARD SILVA, Plaintiff,
v.
BARCLAYS BANK DELAWARE, Defendant.

FINDINGS & RECOMMENDATION

THOMAS M. COFFIN, Magistrate Judge.

Pro se plaintiff, Richard Silva, initiated this action by filing a complaint with the Small Claims Department of the Circuit Court of the State of Oregon for the County of Marion on April 7, 2014. In the complaint, plaintiff asserts that defendant, Barclaycard (akaBarclays Bank), "owe[s] him the sum of$5, 000 疩骁 because of actions by the defendant in disregard of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act." Small Claim and Notice of Small Claim at p.1 attached Notice of Removal (#1-1). On April 18, 2014, defendant removed to this court asserting federal question jurisdiction as plaintiffs claims arise under Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692.

On April 25, 2014, defendant moved to dismiss asserting both the FCRA and FDCPA claims fail. Plaintiff does not respond to the substance of defendant's motion but argues that the motion should be denied because defendant failed to meet the requirements of Local Rule 7-1 and because he filed an amended complaint in state court. Plaintiff, within the response to the motion, also requests a remand to state court.

A. Local Rule 7-1

Under Local Rule 7-1(a)(1), a movant must certify that it has made a good faith effort through personal or telephone conferences to resolve the dispute and has been unable to do so. Moreover, when conferring about a dispositive motion, the parties must discuss each claim, defense, or issue that is subject to the proposed motion. Local Rule 7-1(a)(2). At the outset of its motion, defendant asserts its legal counsel conducted a telephone conference with plaintiff in an attempt to resolve the dispute and discuss each claim, defense or issue subject to its motion to dismiss. Defendant states the parties have been unable to resolve the dispute prior to filing the motion to dismiss.

Plaintiff asks the court to deny the motion to dismiss contending that while regional counsel for defendant called him, he did not state his call's intent was to seek resolution, did not attempt to identify each claim or issue, and did not offer options. However, plaintiff does note that regional counsel informed him, "I don't believe you have a case, " thus confirming that some conferral took place. Further, plaintiff himself states he has made a good faith effort to resolve the disputed account. While judges always appreciate more effort on the part of the parties to resolve disputes short of court intervention, the court should decline to deny the motion to dismiss on any purported failure to meet the requirements of Local Rule 7-1 in this case.

B. Amended Complaint

Plaintiff asserts that defendant seeks dismissal of the small claim notice filed April 2, 2014, but such claim is not applicable because "it has been revised and is filed in state court as REVISED of April 25, 2014." Response (#8) at p. 3. Plaintiff has not sought leave to amend the complaint in this court. If plaintiff has filed an amended complaint in state court, that amendment has no effect. When a case is removed to federal court, the state court shall proceed no further unless and until the case is remanded. 28 U.S.C. § 1446(d).

C. Remand

Finally, plaintiff requests a remand to State Court. Although Local Rule 7-1 (b) prohibits combining motions with a response, the court should entertain the request given plaintiffs pro se status.

Plaintiffs request is unclear as to the basis for remand, but appears to rest on the assertion that a small claim such as this does not justify the time and expense involved with litigating in federal court. However, a defendant may remove "any civil action brought in a State Court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). District courts have original jurisdiction over cases that arise under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. For a case to be removable as a federal question, it must be a case that could have been brought in a district court as a federal question under 28 U.S.C. § 1331.

Plaintiff's complaint asserts claims under federal statutes. An action to enforce any liability created under the FCRA may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction. 16 U.S.C. § 1681p. An action to enforce any liability created by the FDCPA may also be brought in any appropriate United States district court without regard to the amount in controversy. 15 U.S.C. § 1692k(d). Accordingly, this case was properly removed to this court and the request for a remand should be denied.

D. FCRA Claim

Plaintiff's complaint details negative reports made to credit bureaus that plaintiff asserts are, apparently, inaccurate and he notes that he has disputed the overdue accounts. Plaintiff also notes adverse credit actions taken by third ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.