Prukala v. TD Bank USA et al

BRIEF IN OPPOSITION re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM to dismiss Amended Complaint

M.D. Pa.August 5, 2016

IN THE UNITED STATES COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHAEL PRUKALA : plaintiff : v. : No. 3:16-cv-894-MEM TD Bank USA : 1701 Marlton Pike E : Cherry Hill, NJ 08034 : and : JOHN DOES 1-10 : and : CORPORATIONS X,Y,Z. : defendant : CIVIL ACTION - LAW : CLASS ACTION : JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT TD BANK USA'S MOTION TO DISMISS Due Date: 8/5/2016 Joseph T. Sucec, Esq. Attorney for Plaintiff 325 Peach Glen-Idaville Road Gardners, PA 17324 717-315-2359 joesucec@comcast.net PA74482 1 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 1 of 22 TABLE OF CONTENTS I TABLE OF CASES 3 II TABLE OF CITES 4 III COUNTERSTATEMENT OF FACTS/PROCEDURAL HISTORY 5 IV STANDARD OF REVIEW 7 V COUNTERSTATEMENT OF QUESTIONS PRESENTED 8 VI SUMMARY OF ARGUMENT 8 VII ARGUMENT 9 A Defendant has committed the violations covered by both the federal and state statutes in this case. 10 B The state level torts in the Complaint are expressly not preempted. 11 C Despite Defendant's jurisdictional claims, precedent favors remand. 16 VIII CONCLUSION 18 IX PRAYER FOR RELIEF 19 2 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 2 of 22 I TABLE OF CASES Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) 7, 8 Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) 7 Bell Atlantic Corp. v. Twombly, 550 US 544, 127 S.Ct. 1955 (2008) 7, 8 Ashcroft v Iqbal, 556 U.S. 662 (2009) 7 Brady v. The Credit Recovery Co., 160 F.3d 64, 67 (1st Cir. 1998) 11 Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976) 13 Wolfe v MBNA America Bank, N.A., 485 F.Supp.2d 874 (WD Tenn. 2007) 14 DiPrinzio v. MBNA America Bank, N.A., No. 04-872, 2005 WL 2039175, at *3 (E.D. Pa. Aug. 24, 2005) 14 Sassaman v Nationstar Mortgage, 1:14-cv-1589 (MD Pa. 2014) 14 Sites v. Nationstar Mortgage LLC, 646 F. Supp. 2d 699,712 (M.D. Pa. 2009) 14 Manno v. American General Finance Co., 439 F.Supp.2d 418, 425 (E.D.Pa.2006) 15 Johnson v. Citimortgage, Inc., 351 F.Supp.2d 1368, 1376 (N.D.Ga.2004) 15 Carlson v. Trans Union, LLC, 259 F.Supp.2d 517, 521 (N.D.Tex. 2003) 15 Stafford v Cross Country Bank, 262 F. Supp 776 (WD Ky 2003) 15 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit , 507 U.S. 163, 168, 113 S. Ct. 1160, 122 L. Ed. 2D 517 (1993) 15 TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L. Ed. 2D 339 (2001) 15 3 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 3 of 22 United States v. Menasche, 348 U.S. 528, 538-539, 75 S. Ct. 513, 99 L. Ed. 615 (1955) 15 Branch v. Smith, 538 U.S. 254, 123 S. Ct. 1429, 1441, 155 L. Ed. 2D 407 (2003) 15 Watson v. Trans Union, 2005 WL 995687, at *8 n. 8 (D.Me. 2005) 16 Collura v. City of Philadelphia, 590 Fed. Appx. 180, 184 (3d Cir. 2014) 16 Beard v. Lehman Brothers Holdings, Inc., 458 F. Supp. 2d 1314, 1317 (M.D. Ala. 2006) 17 Russell Corp . v. American Home Assur. Co ., 264 F.3d 1040 at 1050 (11th Cir. 2001) 17 Sheehan v. Broadband Access Services, Inc., 889 F.Supp.2d 284 (D.R.I. 2012)17 Hearn v. Reynolds, 876 F.Supp.2d 798 (S.D.Miss. 2012) 17 Boxer v. Accuray, Inc., 906 F.Supp.2d 1012 (N.D.Cal. 2012) 17 Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983) 18 Green v. America Online (AOL), 318 F.3d 465, 470 (3d Cir. 2003) 18 Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 125 S.Ct. 2363 (2005). 18 Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986) 18 II TABLE OF CITES 15 USC 1692 et. Seq 6 28 USC 1331 6 FCEUA, 73 PS 2270.1 et seq 6, 9 4 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 4 of 22 UTPCPL, 73 P.S. § 201-1, et seq 6 Federal Rule of Civil Procedure 12(b)(6) 7 FCRA, 15 USC 1681 et seq 9 15 USC 1692e(8) 10, 12 73 PS 2270.4(b) 10 73 PS 2270.4(b)(5)(ii) 10 73 PS 2270.4(b)(5)(viii) 10 73 PS 2270.4(b)(5)(x) 11 15 USC 1681t (b)(1)(F) 11, 13, 15 15 USC 1681s-2 11, 13 15 USC 1681o 12 15 USC 1681g 12 15 USC 1681h 12 15 USC 1681m 12 15 USC 1681h(e) 12, 13, 15 III COUNTERSTATEMENT OF FACTS/PROCEDURAL HISTORY On April 5, 2016, Plaintiff Michael Prukala filed suit in Lackawanna County. Pennsylvania against Defendants for alleged violations of the Fair Debt Collection 5 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 5 of 22 Practices Act, 15 USC 1692 et. Seq. (“FDCPA”), as well as several state-level causes of actions. (Electronic Case Record 1, ex. 1) Plaintiff, upon review of his consumer credit report, discovered an alleged account with Defendants (ECR 1, ex. 1), that he believed was, at minimum, erroneously reported. Plaintiff, in February 2015, sent Defendant a “dispute letter,” (ECR 1, ex 1, at 20-21) asking for a detailed calculation of the pending balance due on the alleged account, as well as a copy of the contract establishing said account. Defendant, on 5/16-17/16 removed the matter to this forum, claiming Federal Jurisdiction under 28 USC 1331, and filed a Motion to Dismiss for Failure to State a Claim on 6/8/16. Plaintiff filed an Amended Complaint on 6/22/16, addressing an error in statutory reference based on Defendant's claim, in its Brief in Support of its First Motion (ECR 7, at 3-4) that it “not a debt collector” (but rather a “creditor”), The Count I of the Amended Complaint (ECR 10) is based on alleged violations of the FCEUA, 73 PS 2270.1 et seq, as permitted through the UTPCPL, 73 P.S. § 201-1, et seq After a Case Management Conference on 7/6/16 (see ECR 14-15), directing the parties to focus on 6 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 6 of 22 jurisdictional issues, Defendant filed a second (ECR 16) Motion to Dismiss for Failure to State a Claim on 7/22/16, with supporting Brief (ECR 17) the same day. This is Plaintiff's Brief in Opposition. IV STANDARD OF REVIEW Again, in deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must “‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (stating that this statement of the Rule 12(b)(6) standard remains acceptable following the U.S. Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 US 544, 127 S.Ct. 1955 (2008); see Phillips. at 231 (stating that Twombly does not undermine the principle that the court must accept all of plaintiff’s allegations as true and draw all reasonable inferences therefrom). Ashcroft v Iqbal, 556 U.S. 662 (2009). In doing so they misunderstand that, to withstand a motion to dismiss under Rule 12(b)(6), “‘[f]actual allegations must be enough to raise a right to relief above the speculative level.” Phillips. at 234 (quoting Twombly, 127 S.Ct. at 1965). Thus, “‘stating . . . a claim requires a complaint with 7 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 7 of 22 enough factual matter (taken as true) to suggest the required element.” Phillips, at 234. (quoting Twombly, 127 S.Ct. at 1965); This standard “‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements.” Phillips, at 234 (quoting Twombly, 127 S.Ct. At 1965). Defendants would make any but the most obvious cases impossible to prove. Nevertheless, the standard is inclusive rather than exclusive. V COUNTERSTATEMENT OF QUESTIONS PRESENTED A DO THE PROVISIONS OF THE FEDERAL STATUTE FAIL TO PREEMPT ANY AND ALL OF THE STATE CLAIMS ASSERTED IN THIS CASE? Suggested Answer Yes B SINCE THE PRESENT COMPLAINT WAS FILED IN STATE COURT, BUT WAS REMOVED TO FEDERAL DISTRICT COURT BY THE DEFENDANT, IS THE FEDERAL DISTRICT COURT DISQUALIFIED FROM JURISDICTION OVER THE PRESENT MATTER, REQUIRED OF SAID COURT ONLY A REMAND BACK TO STATE COURT? Suggested Answer Yes VI SUMMARY OF ARGUMENT 8 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 8 of 22 Defendant seeks to extend the preemptions extended by the Fair Credit Reporting Act 15 USC 1681 et seq to include a variety of behaviors, essentially making it immune from the provisions of the FCEUA 73 P.S. § 2270.1 et seq as well as from the Fair Debt Collection Practices Act. “Creditors” are not “debt collectors,” it claims (ECR 7, at 3-4), and Defendant is a “creditor”. The volume of case law regarding preemption is considerable, but, despite Defendant's protestations otherwise, both inaction on the part of the Third Circuit and several cases decided in the Middle District of Pennsylvania hold that such preemption is only limited to the statutory. Defendant's case against remand is based on the principle, “once it is done, there Is no reason to change it,” and then bases a large part of its case on an Eastern District of Pennsylvania case where the Plaintiff was obviously forum shopping. There has been no such allegation here, and there is a large body of case law that discourages removal (and approves of remand) when the primary (remaining) questions are based primarily on state law. This court, if it is to dismiss Plaintiff's FCEUA count, should remand to state court on the other counts. VII ARGUMENT 9 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 9 of 22 A Defendant has committed the violations covered by both the federal and state statutes in this case. Plaintiff initially sued under 15 USC 1692e(8) which prohibits: (8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed. Upon determining that Defendant was the actual creditor and not the debt collector covered by the Federal Statute, Plaintiff, In the Amended Complaint, sued under several provisions 73 PS 2270.4(b), to wit: 43 Defendant engaged in unfair methods of competition and unfair or deceptive acts or practices, by attempting to collect the alleged debt in violation of the FCEUA. Defendant violated the FCEUA as to the Plaintiff. Defendant’s violations include, but are not limited to, violations of 73 P.S. § 2270.4(b), as evidenced by the following conduct: A The false representation of the character, amount or legal status of any debt; (73 PS 2270.4(b)(5)(ii)) B Communicating or threatening to communicate to any person credit information which is known or should be known to be false, including the failure to communicate that a debt is disputed (73 PS 2270.4(b)(5)(viii)); and 10 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 10 of 22 C using false representations and deceptive means to collect or attempt to collect a debt. (73 PS 2270.4 (b)(5)(x)) The knowing failure to communicate that a "disputed" debt is disputed is a violation of section 1692e(8). Brady v. The Credit Recovery Co., 160 F.3d 64, 67 (1st Cir. 1998) (section 1692e(8) "requires a debt collector who knows or should know that a given debt is disputed to disclose its disputed status to persons inquiring about a consumer's credit history."). Defendant has made no attempt to deny that its behavior violated any or all of the statutes in play here, it simply claims a “get out of jail free” card by claiming that the FDCPA claim does not apply to them as a “creditor,” but that FCRA somehow preseempts any behavior in this area, no matter how pernicious. While Plaintiff concedes that case law may favor preemption on the FCEUA counts, the dismissal of the attendant common law counts is not supported and said counts must remain. B The state level torts in the Complaint are expressly not preempted. 15 USC 1681t (b)(1)(F) reads in relevant part: (b) General exceptions 11 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 11 of 22 No requirement or prohibition may be imposed under the laws of any State— (1)with respect to any subject matter regulated under— (F)section 1681s–2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies..... 15 USC 1681h(e) states in relevant part: (e) Limitation of liability Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice or willful intent to injure   such consumer. 15 USC 1681g and 15 USC 1681h deal directly with disclosures to consumers; 15 USC 1681m with the effects of adverse actions by third party users of such information, such as the denial of credit based on false information. Both the FDCPA count in the initial Complaint (ECR 1, ex 1) and the FCEUA count in the Amended Complaint (ECR 10), address the failure to make accurate Plaintiff's Credit reports. Any failure to disclose is ancillary to the failure by Defendant to mark its account as disputed. The state tort counts are likewise not based on either lack of disclosure or adverse third-party actions, but on the simple failure to correct and update accurate information. 15 USC 1681h(e) 12 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 12 of 22 also does not apply here. The preemption provisions are clearly in conflict. Despite some courts' eagerness to adopt “all subject matter” as a standard, and to give especially creditors (often large banks) immunity from any liability for FCRA or FDCPA violations, there is a lengthy string of cases that hold in the other direction. Notably, before launching into its case for blanket preemption, Defendant, in its Brief in Support (ECR 17) at 12-13, states “The United States Court of Appeals for the Third Circuit has not yet weighed in on the question of statutory preemption versus blanket preemption. The Middle District has, however, as evinced below. It is well-settled law that a specific statute prevails over a general statute. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). 15 USC 1681t attempts to expand preemption to all “subject matter” covered by 15 USC 1681s-2; 15 USC 1681h(e) is more specific, limiting itself to only statutory claims. As evidenced by the volume of case law provided by both Plaintiff and Defendant in this matter, the Third Circuit's reluctance to deal with the subject is reflective of the dispute in this area of the law. 13 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 13 of 22 Even when the courts have found preemption for some other reason, there has been a refusal to dispose of 15 USC 1681(e) In Wolfe v MBNA America Bank, N.A., 485 F.Supp.2d 874 (WD Tenn. 2007), the court held that “because neither § 1681t(b)(1)(F) or the 1996 amendments to the FCRA expressly repeal § 1681h(e), the Court must assume that Congress intended both provisions to remain active. “ In DiPrinzio v. MBNA America Bank, N.A., No. 04-872, 2005 WL 2039175, at *3 (E.D. Pa. Aug. 24, 2005), Plaintiff's allegations of defamation were not preempted by FCRA because furnisher of information failed to notify credit reporting agency that debt was in dispute and therefore provided false information. . The Middle District was heard from on the subject on November 19, 2014, when Judge Caldwell in Sassaman v Nationstar Mortgage , 1:14-cv-1589 (MD Pa. 2014) held, in a Memorandum Opinion: This court has interpreted the language of section 1681t to preempt state statutory claims, but not state common law claims. See Sites v. Nationstar Mortgage LLC, 646 F. Supp. 2d 699,712 (M.D. Pa. 2009) (Kane, J.) This approach was also adopted by the Eastern District of Pennsylvaniain (the case 14 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 14 of 22 which Defendant tries so vigorously to malign) Manno v. American General Finance Co., 439 F.Supp.2d 418, 425 (E.D.Pa.2006), as well as Johnson v. Citimortgage, Inc., 351 F.Supp.2d 1368, 1376 (N.D.Ga.2004) and Carlson v. Trans Union, LLC, 259 F.Supp.2d 517, 521 (N.D.Tex. 2003). The strongest and most detailed analysis on the subject is provided by the US Court of the Western District of Kentucky in Stafford v Cross Country Bank, 262 F. Supp 776 (WD Ky 2003): The most natural reading of § 1681t, then, is that Congress implicitly excluded an exception pertaining to all state common law claims against furnishers of information by explicitly only including the subject matter regulated under § 1681s-2. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit , 507 U.S. 163, 168, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993) ("Expressio unius est exclusio alterius.") Another well-known rule of statutory construction is that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001); see United States v. Menasche, 348 U.S. 528, 538- 539, 75 S. Ct. 513, 99 L. Ed. 615 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute"). When it enacted § 1681t(b) (1) (F), Congress neither made reference to nor expressly repealed § 1681h(e). Moreover, the Court cannot assume in these circumstances that a more recently enacted provision, such as § 1681t(b) (1) (F), amounts to an implied repeal of the formerin this case § 1681h(e). In fact, an "implied repeal will only be found where provisions in two statutes" are in "irreconcilable conflict," or where the latter act covers the whole subject of the earlier one and "is clearly intended as a substitute." Branch v. Smith, 538 U.S. 254, 123 S. Ct. 1429, 1441, 155 L. Ed. 2d 407 (2003). Neither is true here. The Court is able to reconcile the two provisions; the entire subject matter discussed in § 1681t(b) (1) (F) 15 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 15 of 22 does not cover the whole subject matter provided in § 1681h(e). As such, the Court must assume § 1681h(e) still applies and was not repealed with regard to furnishers of credit information. Finally, there is Watson v. Trans Union, 2005 WL 995687, at *8 n. 8 (D.Me. 2005): (As § 1681t now stands it may make common sense to read [this section] as applying to state statutory regulations that overlap with the FCRA rather than with state common law torts which have elusive `effective' dates." C Despite Defendant's jurisdictional claims, precedent favors remand. Plaintiff has not sought remand, nor attempted to disagree with the removal by Defendant. That said, removal in this case was directly tied to the existence of a federal question (ECR 1)), the alleged violation of a statute to which Defendant has claimed in its first dismissal brief, that does not apply to Plaintiff. Further, removal by Defendant was only predicated on Plaintiff's statutory claim, as opposed to an amount in controversy, diversity, or any other question. Defendant's Brief in Support of its First Motion to Dismiss (ECR 7, at 3-4) specifically states that it “is not a debt collector,” and therefore not subject to the statute pleaded. Defendant's reliance on Collura v. City of Philadelphia, 590 Fed. Appx. 180, 184 (3d Cir. 2014) is not entirely well-placed. Collura, acting pro se, apparently Moved to Remand precisely to get out of Federal Court. Plaintiff's Amended Complaint springs 16 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 16 of 22 from a statuttory misinterpretation as to Defendant's status at the commncement of this case. Further, other Circuits and District Courts have long placed the burden on the party seeking removal to show its reasons for seeking same. Beard v. Lehman Brothers Holdings, Inc., 458 F. Supp. 2d 1314, 1317 (M.D. Ala. 2006); see also Russell Corp . v. American Home Assur. Co., 264 F.3d 1040 at 1050 (11th Cir. 2001)(“[T]here is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.”) In Sheehan v. Broadband Access Services, Inc., 889 F.Supp.2d 284 (D.R.I. 2012), the US District Court of Rhode Island remanded to state court, an employee’s claim under Rhode Island statute regulating employer drug testing did not arise under federal law. Arguably, the FDCPA claim pleaded in Plaintiff's first Complaint “does not arise under Federal law,” because Defendant is not a “debt collector.” also see Hearn v. Reynolds, 876 F.Supp.2d 798 (S.D.Miss. 2012); Boxer v. Accuray, Inc., 906 F.Supp.2d 1012 (N.D.Cal. 2012) (remand based on removal of Federal Class Action count from Amended Complaint) 17 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 17 of 22 The US Supreme Court held in Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983) , that federal question jurisdiction exists if the plaintiff’s “right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties. Also see Green v. America Online (AOL), 318 F.3d 465, 470 (3d Cir. 2003) (appellate court remanding several common law tort counts) For a federal issue to be “substantial,” there must be “a serious federal interest in claiming the advantages thought to be inherent in a federal forum. Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 125 S.Ct. 2363 (2005). In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), Plaintiff's claims arose based on alleged negligence under state tort law. The defendants removed the complaints on the ground that they arose under federal law. The Supreme Court held that federal jurisdiction did not exist. Id.at 807, 817. Despite Plaintiff's counsel's errors in drafting, this is a case arising under a Pennsylvania statute, with several additional counts for tort liability. Especially if the state statutory count is preempted here, leaving the tort counts, this case should have never been removed, and remand is appropriate sua sponte by the Court in this case. 18 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 18 of 22 VIII CONCLUSION Through both its preemption and jurisdictional arguments, Defendant seeks a sweeping ruling that allows it to act with impunity regarding FCRA, the FDCPA, and the state- level FCEUA. As stated in the foregoing, neither precedent nor the statutes themselves allow for this. Defendant's Motion must be Dismissed. IX PRAYER FOR RELIEF WHEREFORE, Plaintiff Michael Prukala respectfully requests that Defendant's Motion to Dismiss is itself dismissed, or, in the alternative That, should this Court see fit to dismiss Count I of the Amended Complaint, that the remaining Counts be remanded to the Court of Common Pleas of Lackawanna County, PA, 19 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 19 of 22 Respectfully submitted, Date: 8/5/2016 /s/ Joseph T. Sucec, Esq. _________________________ Joseph T. Sucec, Esq. 20 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 20 of 22 WORD COUNT CERTIFCATION PURSUANT TO LOCAL RULE 7.8(B)(2) I hereby certify that this Brief is within the word-count limit pursuant to Local Rule 7.8(B)(2). According to the word count tool of Libre Office (used to prepare this Brief), this Brief, not including the Title Page or The Tables of Contents, Cases, and Cites, contains 3,002 words. Date: 8/5/16 Respectfully submitted, /s/ Joseph T. Sucec, Esq. _________________________ Joseph T. Sucec, Esq. Attorney for Plaintiff 325 Peach Glen-Idaville Road Gardners, PA 17324 717-315-2359 joesucec@comcast.net PA74482 21 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 21 of 22 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Brief in Opposition was served by both this Court's ECF system and by First-Class Mail on all counsel of record. Date: 8/5/16 Respectfully submitted, /s/ Joseph T. Sucec, Esq. _________________________ Joseph T. Sucec, Esq. Attorney for Plaintiff 325 Peach Glen-Idaville Road Gardners, PA 17324 717-315-2359 joesucec@comcast. 22 Case 3:16-cv-00894-MEM Document 18 Filed 08/05/16 Page 22 of 22