United States District Court, E.D. Pennsylvania
DREW KARLBERG, et al.
SANTANDER BANK, N.A.
Drew Karlberg, a Pennsylvania citizen, individually and on
behalf of others similarly situated, originally filed this
action against defendant Santander Bank, N.A., a Delaware
citizen, in the Court of Common Pleas of Philadelphia County.
He alleges various state law causes of action related to
improper overcharges for private mortgage insurance
collected, held in trust, and distributed by defendant. The
putative class consists only of Pennsylvania citizens.
plaintiff's amended class action complaint was docketed
in the state court on July 11, 2017, the defendant filed a
Notice of Removal in this court on August 9, 2017. The Notice
of Removal avers that the individual plaintiff and the
defendant are of diverse citizenship and that the other
jurisdictional requirements of the Class Action Fairness Act,
28 U.S.C. § 1332(d), have been met, including an
aggregate amount in controversy in excess of $5, 000, 000,
exclusive of interest and costs. See §
1332(d)(2) and (6).
plaintiff has now filed a Motion to Remand. While there is no
dispute about the existence of diversity of citizenship,
plaintiff maintains that the jurisdictional amount cannot be
satisfied. He also argues that the Notice of Removal was
of an action over which the district court has original
jurisdiction must occur “within 30 days after the
receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting forth the claim for
relief.” § 1446(b)(1); see also id.
§ 1441. Section 1446(b)(3) further provides:
Except as provided in subsection (c), if the case stated by
the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
the original complaint was filed on April 26, 2017. It sought
damages for overcharges of premiums but the amount was never
quantified. After careful review, the court concludes that
the amount in controversy could not reasonably be ascertained
from that pleading. The plaintiff, however, as noted above,
filed an amended class action complaint in the state court on
July 11, 2017. That pleading contained more detailed
allegations of damages. The Notice of Removal was timely
filed within thirty days thereafter. The plaintiff's
argument that defendant's Notice of Removal was late is
next contends that the amount in controversy required under
the Class Action Fairness Act has not been satisfied. See
id. § 1332(d)(2). Under the Act, “the claims
of the individual class members shall be aggregated to
determine whether the matter in controversy exceeds the sum
or value of $5, 000, 000, exclusive of interest and
costs.” See Id. § 1332(d)(6).
amended complaint, plaintiff alleges five state law causes of
action: (1) Count I - violations of Pennsylvania Unfair Trade
Practices and Consumer Protection Law; (2) Count II - breach
of contract; (3) Count III - unjust enrichment/restitution
(pled in the alternative); (4) Count IV - breach of fiduciary
duty (pled in the alternative); and (5) Count V - declaratory
judgment. Count I pleads the following claim for actual and
statutory damages for plaintiff and the class:
[F]or each instance of unfair or deceptive acts including,
but not limited to each instance in which Santander
overcharged its mortgage borrowers in excess of the
parties' agreed-upon PMI, in an amount in excess of $50,
000, treble damages, . . . [and] reasonable attorneys'
fees . . . .
also seeks punitive damages in the count for breach of
fiduciary duty in addition to the damages claimed for
violation of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law.
Notice of Removal reads the amended complaint as seeking
damages in excess of $50, 000 for each instance of an alleged
monthly mortgage insurance overcharge in addition to seeking
treble damages, punitive damages, and attorneys' fees. In
a declaration which accompanied the Notice of Removal, an
assistant vice president of defendant states that defendant
has reviewed its mortgage portfolio and that “[a]s a
result of this review, Santander has identified a total
potential population of 281 Pennsylvania loans that may
satisfy the alleged class criteria as pled in the Amended
Complaint.” If defendant's reading of the amended
complaint is correct, the aggregate amount in controversy
with appropriate multiplication is clearly greater than $5,
does not challenge the number of loans which equates to
significantly more than the minimum of 100 class members
required for removal of a putative class action. See
id. § 1332(d)(5)(B). However, plaintiff maintains
that while the plaintiff and the putative class seek damages
for each monthly overcharge the amount of each overcharge is
only a few dollars as shown by the amended complaint and its
exhibits. The plaintiff himself has alleged a loss of only
$52. The claim for damages in excess of $50, 000, plaintiff
asserts, is in the aggregate and was simply stated to conform
to a local procedural requirement in the Court of Common
Pleas of Philadelphia County to avoid having the case placed
in the court's mandatory arbitration program.
See Phila. R. Civ. P. 1301.
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303
U.S. 283 (1938), the Supreme Court many years ago outlined
the standard for determining whether the amount in
controversy requirement has been met. The sum claimed by
plaintiff controls “if the claim is apparently made in
good faith. It must appear to a legal certainty that the
claim is really for less than the jurisdictional amount to
justify dismissal.” Id. at 288-89. In making
its decision, the court may review the face of the pleadings.