United States District Court, W.D. Oklahoma
HEATON, CHIEF U.S. DISTRICT JUDGE.
Harry Davis brought this action in state court against
defendants Automax Dodge Chrysler Jeep and Municipal
Employees Credit Union of Oklahoma City (ME/CU). Plaintiff
claims that the defendants wronged him by entering false
information in a vehicle loan credit application on his
behalf and by failing to independently verify the information
prior to approving him for the loan. Defendants removed the
case to this court.
Automax has re-filed a motion to compel arbitration of the
claims against it. ME/CU has moved to dismiss on the basis of
failure to state a claim. Plaintiff has not responded to
either of those motions, but has filed a motion to remand the
case to state court.
seeks remand on the basis he did not mean to assert an
independent federal claim, that the predominant thrust of his
case is based on state law claims, and that Automax waived
its right to remove by filing a motion to dismiss in state
court. None of those grounds are persuasive.
sixth cause of action explicitly relies on the federal Truth
In Lending Act, citing 15 U.S.C. § 1601 et seq.
as one basis for the claim. That is sufficient to be a basis
for federal question jurisdiction and the assertion of a
greater number of state law claims does not eliminate the
necessary jurisdictional basis.
argues that Automax waived its right to remove by filing a
motion to dismiss in state court. A defendant can be deemed
to have waived the right to remove by taking some substantial
offensive or defensive pre-removal action in the state court
action indicating a willingness to litigate in that tribunal.
City of Albuquerque v. Soto Enters., Inc., 864 F.3d
1089, 1098 (10th Cir. 2017). To invoke that rule, the waiver
must be “clear and unequivocal, meaning that
‘short of [the defendant] seeking an adjudication on
the merits,' the ‘right to removal is not
lost.'” Id. (quoting PR Grp., LLC v.
Windmill Int'l, Ltd., 792 F.3d 1025, 1026 (8th Cir.
2015)). Here, Automax's motion did not seek to resolve
the merits of the dispute in state court. Rather, it sought
to compel arbitration of the claims against it, and asked the
state court to dismiss or stay the case pending that
arbitration. That is not a request for the state court to
adjudicate the merits of the case. The weight of authority
appears to conclude that motions to compel arbitration filed
pre-removal are not a basis for waiver. See MG Bldg.
Materials, Ltd. v. Paychex, Inc., 841 F.Supp.2d 740,
752-3 (W.D.N.Y. 2012); Tillis v. Cameron, No.
07-cv-0078-WKW, 2007 WL 2806770, at *4 (M.D. Ala. 2007)
petition plainly stated a claim based on federal law and no
basis for waiver of the right to remove has been shown. The
motion to remand will therefore be denied.
Motion to Dismiss
motion asks the court to dismiss plaintiff's claims
against it. While ME/CU advances several grounds for
dismissal, including some based on facts or circumstances
outside the scope of the pleadings, the court concludes the
petition fails to state a claim against MC/CU and the motion
should be granted on that basis. None of the claims include a
factual basis for concluding that ME/CU, as the lender, had a
duty to investigate or verify the credit information
submitted to it nor is there any basis alleged for concluding
that this defendant had a fiduciary or other “special
relationship” with the plaintiff that could be a basis
for claim. See First Nat. Bank and Trust Co. of Vinita v.
Kissee, 859 P.2d 502, 510 (Okla. 1993).
motion to dismiss will be granted. In light of the various
documents referenced in defendant's submissions, the
court has considerable doubt whether plaintiff will be able
to state a claim against the lender in any amended pleading.
However, as the basis for dismissal here is Rule 12(b)(6),
and as remediation by amendment is at least theoretically
possible, he will be granted leave to amend.
Motion to Compel Arbitration
motion here is substantially the same as its motion filed
pre-removal in state court, and seeks to compel plaintiff to
submit his claims against Automax to arbitration. As with
ME/CU's motion, plaintiff has not responded to it. The
court concludes the motion shows a sufficient basis for the
relies on an agreement to arbitrate included in the purchase
order for the vehicle involved. Agreements to arbitrate are
enforceable under both federal and Oklahoma law. Once an
agreement to arbitrate has been established, “doubts
concerning the scope of arbitrable issues should be resolved
in favor of arbitration.” Nat'l Am. Ins. Co. v.
SCOR Reinsurance Co.,362 F.3d 1288, 1290 (10th Cir.
2004). In determining whether an agreement exists at all, the
general rule is to apply ordinary state-law principles
governing the formation of contracts. Summit Contractors,
Inc. v. Legacy Corner, L.L.C.,147 Fed.Appx. 798, 800-01
(10th Cir. 2005) (unpublished) (federal courts “should
apply ordinary ...