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Fiore v. First American Title Insurance Co.

December 13, 2005

PETER P. FIORE, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

Before the Court are two motions: Plaintiff's motion to remand (Doc. 8) and Defendant's motion to dismiss (Doc. 5). Defendant First American Title Insurance Company ("Defendant"), as its name suggests, is a company that sells title insurance. Plaintiff Peter P. Fiore, Jr., individually and on behalf of all others similarly situated ("Plaintiff"),*fn1 is a former consumer of Defendant's services. Plaintiff originally filed this action in St. Clair County Circuit Court. Defendant then removed to this Court. For the reasons stated below, the Court denies Plaintiff's motion to remand and dismisses this case with leave for Plaintiff to refile.

I. Background

Plaintiff, on behalf of a putative class, brings suit under the Illinois Consumer Fraud and Deceptive Practices Act, 815ILL.COMP.STAT. 505/01 et seq. ("ICFA" or the "Act") and other state consumer-fraud statutes. (Doc. 2, Pl. Compl., ¶¶ 7-8.) His allegations center on Defendant's "uniform and common practice of overcharging the actual costs incurred to perform title insurance and loan and real estate closing services without complying with the laws of the State of Illinois as well as with other state consumer laws." (Id. ¶ 13.) Plaintiff alleges that "[t]he conduct of [Defendant] was deceptive, fraudulent, unfair and misleading, and an improper concealment, omission or suppression of a material fact" (id. ¶ 21), and additionally that Defendant violated ICFA by

a) [M]isrepresent[ing] to the Plaintiffs the actual cost of certain closing charges including, but not limited to, credit reports, tax service contracts to the [lender], flood certification fees, settlement or closing fees, recording fees, wire transfer fees and delivery fees;

b) Omitting and/or concealing/suppressing from Plaintiffs the fact that its title insurance closing costs were not in compliance with Illinois law by failing to disclose and charge to Plaintiff the actual costs thereof;

c) By overcharging and concealing the actual costs of the services aforesaid; and

d) By retaining and converting monies in excess of the actual costs thereof and not informing Plaintiffs or refunding the same to Plaintiffs.

(Id. ¶ 6.) With regard to damages, Plaintiff alleges "that the damages incurred by said customers outside the State of Illinois are not greater than $5,000,000" (Id.), and that each of the members of the putative class is entitled to an amount "less than $75,000." (Id. ¶ 23.)

II. Analysis

1. Motion to Remand

The Court first considers Plaintiff's motion to remand. This case was originally removed by Defendant pursuant to the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 14 ("CAFA"). Defendant's position is that because CAFA confers federal jurisdiction over any action "in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which . . . any member of a class of plaintiffs is a citizen of a State different from any defendant," 28 U.S.C. § 1332(d)(2), and because a "common sense" (Doc. 17, p. 5) reading of Plaintiff's complaint indicates that Plaintiff sues for more than $5,000,000, the Court has jurisdiction over this action. Plaintiff, arguing for remand under 28 U.S.C. § 1447(c),*fn2 responds that the matter in controversy is "clearly" less than $5,000,000 (Doc. 8, p. 3), and that "[t]he allegations of Plaintiff's Complaint should be accepted as true and [construed] in light most favorable to the Plaintiff." (Doc. 8, p. 4.)

A defendant may remove a case only if a federal district court would have original jurisdiction over the action. See 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).*fn3 Statutes providing for removal are construed narrowly, and doubts about removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). The burden of establishing jurisdiction in the federal courts falls on the party seeking removal. Id.

CAFA, which took effect on February 18, 2005, extends federal jurisdiction over any class action in which (1) minimal diversity exists, (2) the number of putative class members exceeds 100, and (3) the matter in controversy exceeds $5,000,000. Pub. L. 109-2, 119 Stat. 4 (2005); 28 U.S.C. §§ 1332(d). Here, neither (1) nor (2) is at issue. Minimal diversity exists, and the number of putative class members exceeds 100.*fn4 The amount in controversy, however, is disputed by the parties. Also at issue is the question of ...


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