United States District Court, D. Massachusetts
SHAWN HARRINGTON, on behalf of himself and all others similarly situated
WELLS FARGO BANK, N.A.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
REMAND AND DEFENDANT'S MOTION TO DISMISS
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Harrington brought this putative class action in Middlesex
Superior Court against Wells Fargo Bank, N.A. Harrington
alleges that Wells Fargo violated Mass. Gen. Laws ch. 93A,
§ 2, and 940 C.M.R. § 7.04, by repeatedly placing
more than two debt collection calls within a seven-day
period. Wells Fargo timely removed the case to the federal
district court pursuant to the Class Action Fairness Act
(CAFA), 28 U.S.C. §§ 1332(d) and
1453. Harrington moves to remand the case for
lack of subject matter jurisdiction, while Wells Fargo moves
to dismiss the Amended Complaint for failure to state a
claim. For the reasons to be explained, both the motion to
remand and the motion to dismiss will be denied.
facts, as alleged in the Amended Complaint, are as
follows. In 2015, Harrington obtained an automobile
financing loan from Wells Fargo. Sometime thereafter,
Harrington stopped making payments on the loan. Wells Fargo
then proceeded to call Harrington more than twice a week on
his cellular telephone to collect on the debt. Specifically,
“throughout the second half of 2018 and the beginning
of 2019, Wells Fargo placed near-daily calls to [his]
cellular telephone and consistently placed more than four
calls to [his] cellular telephone within a seven-day
period.” Am. Compl. (Dkt # 8) ¶ 14.
seeks to represent a class of
[a]ll consumers residing in the Commonwealth of Massachusetts
who, within four years prior to the filing of this action,
received in excess of two telephone calls regarding a debt
from Wells Fargo within a seven-day period to their
residence, cellular telephone, or other provided telephone
Id. ¶ 22. He alleges that
“thousands” of Massachusetts consumers are
members of the proposed class. Id. ¶ 25. In the
civil action cover sheet to the original state court
complaint, Harrington lists damages as greater than $25, 001.
Cover Sheet (Dkt # 1-3).
provides that federal courts have jurisdiction over class
actions based on state law when: (1) there is
“minimal” diversity (meaning that at least one
plaintiff and one defendant are from different states); (2)
the amount in controversy exceeds $5 million; and (3) the
action involves at least 100 class members. 28 U.S.C.
§§ 1332(d)(2) and (5)(B). Here, Harrington only
disputes that the threshold amount in controversy has been
Wells Fargo, as the removing party, bears the burden of
demonstrating a “reasonable probability” that the
aggregate claims of the plaintiff class were greater than $5
million at the time of removal. Amoche v. Guar. Trust
Life Ins. Co., 556 F.3d 41, 43 (1st Cir. 2009). The
court ultimately, however, looks to “what both
parties have shown” and considers “which party
has better access to the relevant information.”
Id. at 51 (emphasis in original).
93A and the Massachusetts Debt Collection Regulations specify
damages (where awarded) as follows:
if the court finds for the petitioner, recovery shall be in
the amount of actual damages or twenty-five dollars,
whichever is greater; or up to three but not less than two
times such amount if the court finds that the use or
employment of the act or practice was a willful or knowing
violation of said section two or that the refusal to grant
relief upon demand was made in bad faith with knowledge or
reason to know that the act or practice complained of
violated said section two.
Mass. Gen. Laws ch. 93A, § 9(3).
contends that the state court civil action cover sheet is the
end of the court's inquiry because it lists damages at
“[g]reater than $25, 001.00 on behalf of Plaintiff
and class.” Cover Sheet (Dkt # 1-3) (emphasis
added). In other words, the $25, 001 alleged in damages,
according to Harrington, is for the entire class, not just
himself. However, this number, $25, 001, was clearly chosen
to plead into the jurisdiction of the Superior Court.