                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



ARCHIE MOSES, et al.

                       Plaintiffs,
                                                             Civil Action No. 11-cv-00822 (BJR)
               v.
                                                             MEMORANDUM OPINION AND
SUNTRUST MORTGAGE, INC.,                                     ORDER ON MOTION TO
                                                             REMAND AND MOTION TO
                       Defendant.                            DISMISS



       Before the court at this time are two motions: SunTrust Mortgage, Inc.’s Motion to

Dismiss Class Action Complaint [dkt. #3] and plaintiffs’ Motion to Remand [dkt. #6] (hereinafter

“Mot. to Remand”). This matter was reassigned to this court from Judge Friedman on September

1, 2011. Having read the parties’ pleadings, and for the reasons stated herein, plaintiffs’ motion

will be granted, and defendant’s motion will be denied without prejudice.

I.     BACKGROUND

       Plaintiffs Archie and Violet Moses commenced this action, on behalf of a class of all

others similarly situated, in District of Columbia Superior Court on March 30, 2011. Class

Action Complaint [dkt. #1-1] (hereinafter “Complaint”). Previously, plaintiffs filed a complaint

in the United States District Court for the District of Columbia against defendant SunTrust

Mortgage, Inc. and numerous other defendants, alleging various claims under federal and state

law. Mot. to Remand at 1-2. Following the voluntary dismissal of other defendants and claims,

plaintiffs determined that there was no longer any basis for federal jurisdiction, and filed a notice

of voluntary dismissal as to that case on March 30, 2011, the same day they filed the present

complaint in Superior Court. Moses v. SunTrust Banks, Inc., Case No. 10-CV-2029 at dkt. #36.
       Plaintiffs allege that SunTrust Mortgage, Inc. (hereinafter “SunTrust”) “engaged in a

pattern of unfair and deceptive practices with respect to full and timely disclosure of its

requirement for private mortgage insurance (“PMI”) on home loans.” Complaint at 1. Under the

heading “Count I,” plaintiffs’ complaint sets forth a claim for “Violation of District of Columbia

Consumer Protection Procedures Act (“CPPA”), D.C. Code §§ 28-3901 et seq.” Id. at 9. The

next section of the complaint, without any further “Count” language, appears under the heading

“Underlying Violation of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq.”

       Defendant filed a notice of removal in this court on May 3, 2011, asserting federal

question jurisdiction. Notice of Removal [dkt. #1]. In their Motion to Remand, plaintiffs

challenge SunTrust’s basis for removal and request that the court remand the case to the District

of Columbia Superior Court.

II.    MOTION TO REMAND

       A.      Standard of Review

       A federal court’s original jurisdiction is premised on two statutory grounds: (1) federal

question jurisdiction, pursuant to 28 U.S.C. § 1331; and (2) diversity jurisdiction, pursuant to 28

U.S.C. § 1332. SunTrust premised its removal from state court on federal question jurisdiction.

Except as otherwise provided by law, “any civil action brought in a State court of which the

district courts of the United States have original jurisdiction, may be removed by the defendant or

the defendants, to the district court of the United States for the district and division embracing

the place where such action is pending.” 28 U.S.C. § 1441(a). “Removal is appropriate only

when the case might have originally been brought in federal court.” Wexler v. United Air Lines,

496 F. Supp. 2d 150, 152 (D.D.C. 2007). When a federal court lacks subject matter jurisdiction


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over a dispute removed from state court, the court must remand the action to state court. 28

U.S.C. § 1447(c).

         The removing party has the burden of showing that federal subject matter jurisdiction

exists. Wexler, 496 F. Supp. 2d at 152. In light of the significant federalism concerns involved,

this court “strictly construes the scope of its removal jurisdiction.” Breakman v. AOL, LLC, 545

F. Supp. 2d 96, 100 (D.D.C. 2008). Therefore, “if federal jurisdiction is doubtful, a remand to

state court is necessary.” Id. at 101 (citations omitted).

         Regardless of whether removal is initially proper, a district court should dismiss an action

for lack of subject matter jurisdiction when the facts and allegations before the court belie any

averment that federal jurisdiction exists. Cf. Meng v. Schwartz, 305 F. Supp. 2d 49, 55 (D.D.C.

2004).

         B.     Legitimacy of Removal

                Under the “well-pleaded complaint” rule, a suit “arises under” federal law “only

when the plaintiff’s statement of his own cause of action shows that it is based upon federal law.”

Vaden v. Discover Bank, 556 U.S. 49, –, 129 S. Ct. 1262, 1272 (2009) (citation omitted). “The

rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

Furthermore, the Supreme Court has emphasized that “it takes more than a federal element to

open the ‘arising under’ door.” Empire HealthChoice Assur., Inc. v. McVeigh, 547 U.S. 677, 701

(2006) (internal citations omitted).

         As noted above, plaintiffs’ only “count” against defendants is alleged under the D.C.

Consumer Protection Procedures Act; a separate section, referencing TILA, indicates that it is an


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“underlying violation.” Complaint at 9-10. Plaintiffs explain that their aim was to clarify what

claims they were making under section 28-3904(dd) of the CPPA. Mot. to Remand at 4.1

Plaintiffs state that this court does not have subject matter jurisdiction, because the only claims

actually asserted in the complaint arise under District of Columbia law.

           SunTrust argues that the complaint “manifestly raises TILA claims against SunTrust.”

SunTrust Mortgage, Inc.’s Memorandum in Opposition to Plaintiffs’ Motion to Remand [dkt.

#12] (“Opp.”) at 1. SunTrust argues that the well-pleaded complaint rule “focuses on whether a

federal question exists on the face of the complaint, not on the labels or headings contained in the

complaint.”2 Id. at 2.

           Upon reading plaintiffs’ complaint in conjunction with their brief, it is clear to the court

that plaintiffs only intended to include TILA violations to the extent that TILA is incorporated

into the D.C. CPPA. In fact, plaintiffs allege that “Defendant SunTrust violated § 28-3904(dd)

and thereby violated D.C. Mun. Regs. Tit. 16 § 101 by failing to fully and adequately disclose

that Plaintiffs were required to purchase PMI and the terms of the PMI pursuant to the Truth in

Lending Act (TILA), 15 U.S.C. § 1600 et seq.” Id. ¶ 45.

           The fact that plaintiffs’ claim under the D.C. CPPA and D.C. Municipal Regulations is

based, in part, on SunTrust’s alleged TILA violations does not create an independent federal

question so as to merit federal jurisdiction. See Nkengfack v. Homecomings Fin., LLC, Case No.

09-CV-1928, 2009 U.S. Dist. LEXIS 104077, at *9 (D. Md. Nov. 6, 2009) (“That a court must


1
 Specifically, section 28-3904(dd) states that it shall be a violation of the CPPA to violate any provision of title 16
of the District of Columbia Municipal Regulations (D.C. Code § 28-3904(dd)); title 16 incorporates by reference
twelve sections of the federal TILA. D.C. Mun. Reg. tit. 16, § 101.

2
    SunTrust does not claim that the D.C. statute is in any way preempted by the federal statute.

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determine the extent to which an alleged TILA violation also violates Maryland law is not

significant enough to merit federal jurisdiction.”). Furthermore, state statutes incorporating

federal law in this way are not rare, and “[g]ranting federal jurisdiction in this case . . . would

upset the balance between federal and state judicial responsibilities.” Id., at *12.

III.   CONCLUSION

       For the reasons stated, it is, hereby,

       ORDERED that plaintiffs’ Motion to Remand is GRANTED. It is further, hereby,

       ORDERED that SunTrust Mortgage, Inc.’s Motion to Dismiss Class Action Complaint is

DENIED without prejudice.

       SO ORDERED.

       January 13, 2012




                                                BARBARA J. ROTHSTEIN
                                                UNITED STATES DISTRICT JUDGE




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