United States District Court, W.D. North Carolina, Asheville Division
EARL B. HUNTER, JR., Plaintiff,
BACKGROUND INVESTIGATION BUREAU, LLC, et al., Defendant.
COGBURN JR., UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff's Motion
to Remand to State Court. See (Doc. No. 6).
February 11, 2019, Plaintiff Earl B. Hunter, Jr., filed this
action in Transylvania County Superior Court, alleging a
state law claim for defamation per se against Defendants
Background Investigation Bureau, LLC, and Syntracorp, LLC
(formerly known as Background Investigation Bureau, LLC).
(Doc. No. 1-1). Paragraph 24 of the Complaint also alleged:
24. In the alternative, to the extent that FCRA has any
applicability to the actions of Defendants BIB, BIB's
publication of false statements regarding [Plaintiff] was
grossly negligent, reckless, malicious, wanton or otherwise
(Doc. 1-1 at ¶ 24).
April 5, 2019, Defendants removed Plaintiff's action to
this Court, citing federal question jurisdiction. (Doc. 1 at
¶ 6). Defendants state that they removed the action
based on an “alternatively pled FCRA claim” in
Paragraph 24 of Plaintiff's Complaint. Plaintiff now
brings the pending motion to remand, contending that he
intended to bring a state law defamation claim only and that
he included Paragraph 24 only in the event that Defendants
relied on a federal statute as a defense to his state law
defamation claim. More specifically, Plaintiff explains in
the motion to remand that Paragraph 24 makes an allegation of
willfulness or malice to support the legal conclusion that
the FCRA's preemption provision is not triggered even if
the FCRA does have some applicability to Defendants'
conduct. (Compare Doc. No. 1-1 at ¶ 24 with 15 U.S.C.
§ 1681h(e)). Plaintiff explains, therefore, that
Paragraph 24 was intended to plead the Complaint out of the
FCRA's preemption provision to make clear that
Plaintiff's state law defamation claim is actionable even
if the FCRA has applicability to Defendants' conduct.
noted, Defendants removed this action from state court based
on federal question jurisdiction under 28 U.S.C. §
1441(a), which provides that a defendant may remove an action
if the plaintiff's complaint alleges a federal cause of
action. See Owen v. Carpenters' Dist. Council,
161 F.3d 767, 772 (4th Cir. 1998). “The presence or
absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). A case is not removable on the basis
that a defense implicates a federal question-even if that
defense is anticipated in the Plaintiff's complaint.
mere mention of a federal statute in the course of setting
forth state-law claims does not confer federal
jurisdiction.” Martin v. Lagualt, 315
F.Supp.2d 811, 814 (E.D. Va. 2004). “When a claim
arises under state law, ‘federal jurisdiction is
unavailable unless it appears that some substantial, disputed
question of federal law is a necessary element of one of the
well-pleaded state law claims.'” Id.
(quoting Franchise Tax Bd. v. Constr. Laborers Vacation
Tr., 463 U.S. 1, 13 (1983)); Swecker v. Trans Union
Corp. 31 F.Supp.2d 536, 538 (E.D. Va. 1998)
(“Because the FCRA explicitly declines to replace all
state causes of action or to provide exclusive jurisdiction
in the federal courts, and fails to reflect clearly an intent
to make claims removable . . . it does not provide for the
removal of state law claims.”).
Court will remand this action to state court, as Plaintiff
has made clear that his only claim in the Complaint is a
state law defamation claim. This action, therefore, clearly
belongs in state court. R. H. Bouligny, Inc. v. United
Steelworkers of Am., AFL-CIO, 336 F.2d 160, 165 (4th
Cir. 1964) (noting that federal courts “uniformly have
held that libel and slander actions are to be governed by the
substantive law of the state in which the torts allegedly
occur”), aff'd, 382 U.S. 145 (1965);
Richardson v. F.B.I., No. CA 4:11-10-RBH-SVH, 2011
WL 1428968, at *3 (D.S.C. Mar. 8, 2011), report and
recommendation adopted, No. 4:11-CV-00010-RBH, 2011 WL
1429101 (D.S.C. Apr. 13, 2011) (stating that “it is
well-settled that defamation is a state law cause of action
and it cannot form the basis of federal question
jurisdiction”); Vander Linden v. Wilbanks, 128
F.Supp.2d 900, 904 (D.S.C. 2000) (“The Fourth Circuit
has found that libel and slander claims are state law claims
and, absent diversity jurisdiction, should be heard by state
Plaintiff's request for attorney's fees will be
IS HEREBY ORDERED that Plaintiffs Motion to Remand,
(Doc. No. 6), is GRANTED, Plaintiffs request
for attorney's fees is denied, ...