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Harrington v. Wells Fargo Bank N.A.

United States District Court, D. Massachusetts

August 14, 2019

SHAWN HARRINGTON, on behalf of himself and all others similarly situated
v.
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

         Shawn Harrington brought this putative class action in Middlesex Superior Court against Wells Fargo Bank, N.A.[1] 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.[2] 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.

         BACKGROUND

         The facts, as alleged in the Amended Complaint, are as follows.[3] 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.

         Harrington 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 number.

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).

         DISCUSSION

         Motion to Remand

         CAFA 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 met.[4] 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).

         Chapter 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).

         Harrington 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. Se ...


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