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Ossello v. Swift Rock Financial, Inc.

United States District Court, D. Montana, Butte Division

October 26, 2017



          Dana L. Christensen, United States District Court Chief Judge

         United States Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendations in this case on July 27, 2017, recommending that Plaintiffs' Motion to Remand (Doc. 14) be granted. (Doc. 48 at 16.) Defendants Global Client Solutions, LLC, Global Holdings, LLC, Robert Merrick, and Michael Hendrix (collectively "Global Defendants") timely filed an objection and are therefore entitled to de novo review of the specified findings and recommendations to which they have objected. 28 U.S.C. § 636(b)(1). The portions of the findings and recommendations not specifically objected to will be reviewed for clear error. 28 U.S.C. § 636(b)(1)(A); McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). For the reasons stated below, Judge Lynch's Findings and Recommendations are adopted in full.


         In September 2013, Discover Bank brought a collection action against Plaintiff Susan Ossello ("Ossello") in Montana district court. In June 2014, Ossello filed a third-party complaint against Global Client Solutions, Swift Rock Financial, Inc., and Orion Processing, LLC, alleging generally that the entities had "used deceptive and fraudulent representations to solicit her participation in an illegal debt settlement plan" and asserting several state law claims. Global Client Solutions, LLC v. Ossello, 367 P.3d 361, 364 (2016); (Doc. 1-1). Swift Rock and Orion Processing failed to appear in the case, and in August 2014 the state court entered an order granting Ossello's motion for default. (Doc. 1-2.)

         In the meantime, Global Client Solutions appeared in the action and filed a motion to compel arbitration. The Montana district court denied the motion and Discover Bank appealed. In July 2015, while that appeal was still pending, Bank of America instituted a separate collection action against Ossello in state court. In October 2015, Ossello filed a third-party complaint against Global Defendants, Swift Rock, Bradley Haskins, World Law Debt Services, LLC, and World Law Processing. Swift Rock, Haskins, and the World Law entities never entered an appearance.

         In March 2016, the Montana Supreme Court issued a decision affirming the state court's order denying the motion to compel arbitration. Global Client Solutions, 367 P.3d 361. After the Montana Supreme Court's decision in Global Client Solutions, the state court consolidated Discover Bank and Bank of America's collection actions and Ossello's third-party actions. (Doc. 1-8.) In late 2016, Discover Bank and Bank of America settled their claims against Ossello. On December 13, 2016, Discover Bank and Bank of America were dismissed from the consolidation action, leaving Ossello's consolidated third-party action against Global Defendants and the various non-appearing defendants. (Docs. 1-9; 1-10; 1-11.)

         Approximately two months later, Ossello moved for leave to file an Amended Complaint. The state court granted Ossello's motion, and on March 14, 2017, Ossello filed an Amended Complaint naming seven new Plaintiffs. (Docs. 1-13; 1-14.) The Amended Complaint asserts state law claims on behalf of Ossello and each new Plaintiff for violation of the Montana Consumer Debt Management Services Act; violation of the Montana Consumer Protection Act; fraudulent misrepresentation and deceit; negligent misrepresentation; illegality, unconscionability, and impermissible contract of adhesion; unjust enrichment; unauthorized practice of law; and civil conspiracy. (Doc. 1-14.)

         On March 24, 2017, Global Defendants filed a notice of removal invoking this Court's diversity jurisdiction. (Doc. 1.) Plaintiffs filed a motion to remand pursuant to 28 U.S.C. § 1447(c) on the grounds that (1) Global Defendants were third party defendants in the state court action and have no right to remove; (2) the notice of removal was untimely; and (3) Global Defendants did not obtain consent from all defendants prior to removal.


         Under 28 U.S.C. § 1441(a), any "state-court action[] that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The "removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). There is a strong presumption against removal jurisdiction, which means that the defendant always bears the burden of establishing that removal is proper. Gaus, 980 F.2d at 566. The removing party must show both that there are grounds for federal jurisdiction and that it complied with the procedural requirements for removal. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Remand may be ordered based upon defects in the removal procedure. 28 U.S.C. § 1447(c).

         The procedure for removing a case from state to federal court is set forth in 28 U.S.C. § 1446 which provides two thirty-day periods during which a case may be removed to federal court. First, § 1446(b)(1) permits a defendant to file a notice of removal within thirty days of defendant's receipt "of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Second, § 1446(b)(3) provides that "if the case stated by the initial pleading is not removable, " a defendant may file notice of removal within thirty days of defendant's receipt "of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." However, removal under § 1446(b)(3) based upon diversity jurisdiction may not occur "more than 1 year after commencement of the action, " unless the plaintiff acted in bad faith in order to prevent removal. 28 U.S.C. § 1446(c).[1] "Commencement" for purposes of removal "refers to when the action was initiated in state court, according to state procedures." Bush v. Cheaptickets, Inc., 425 F.3d 683, 688 (9th Cir. 2005).

         Judge Lynch looked to Mont. Code Ann. § 27-2-102(1)(b) which states that "an action is commenced when the complaint is filed." The parties accepted for purposes of discussion that Ossello's third-party complaints were the initial pleadings which commenced the action against Global Defendants in June 2014 and October 2015, respectively. (Doc. 48 at 9.) Ossello filed an Amended Complaint naming seven new Plaintiffs on March 14, 2017. (Docs. 1-13; 1-14.) Global Defendants filed notice of removal on March 24, 2017. (Doc 1.) Global Defendants did not contest that they filed notice of removal more than one year after Ossello filed her third-party complaints. Instead, Global Defendants argued that the addition of new plaintiffs in the Amended Complaint effectively commenced the action anew for purposes of § 1446(b) and restarted the one-year clock in § 1446(c). (Doc. 48 at 9-10.) Defendants argued that when the claims asserted by new plaintiffs do not relate back to the original complaint, they effectively commence a new action. (Id. at 13-14.) Therefore, Global Defendants urge that the March 24, 2017, notice of removal was well within the thirty-day and one-year time limits of § 1446.

         Recognizing that the Ninth Circuit has not yet considered the issue and that the federal district courts to have considered the question have reached different results, Judge Lynch found that the plain terms of the statute do not support finding that a case commences anew each time "a new plaintiff is joined." (Doc. 48 at 12 (quoting US Airways, Inc. v. PMA Capital Ins. Co., 340 F.Supp.2d 699, 707 n. 12 (E.D. Va. 2004).) Judge Lynch found that the plain language of § 1446(b) did not speak in terms of specific claims but only of "commencement of the action." Further, Judge Lynch found that "regardless of the relation back doctrine, " there is no authority under Montana law to support the notion that an action "commences" whenever a new plaintiff is added by the amendment of a complaint. (Doc. 48 at 14.) Accordingly, Judge Lynch concluded that to apply the relation back doctrine to determine whether new plaintiffs claims commence a new action would "circumvent the plain language of § 1446(b)." Since Global Defendants filed their notice of removal over one year after Ossello filed her third- party complaints, Judge Lynch found that removal was time-barred and recommended that the case be remanded to state court. (Doc. 48 at 14, 16.)

         Global Defendants object to this specific finding and recommendation. (Doc. 51 at 10-11.) Because a state court will not have occasion to address removal directly, Global Defendants assert that the question must be resolved by analogy to commencement as interpreted by Montana's statute of limitations law. (Id. at 11-12.) Global Defendants assert that Judge Lynch cut his analysis short by applying a "bright-line" commencement rule after interpreting the language of Mont. Code Ann. ยง 27-2-102(1)(b) without delving into the entirety of Montana's statute of ...

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