it machines vs masterfile / ncs recovery: 1 - masterfile notice of removal

8/3/2019 IT Machines vs Masterfile / NCS Recovery: 1 - Masterfile Notice of Removal

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28MORRIS PETERSON

ATTORNEYS AT LAW

0 BANK OF AMERICA PLAZA00 SOUTH FOURTH STREET

ASVEGAS. NEVADA891 01

702/474-9400FA X 702/474-9422

MORRIS PETERSONSteve Morris, Bar No. 1543Jared MSechrist, Bar No. 10439900 Bank of America Plaza300 South Fourth StreetLas Vegas, NV 89101Telephone: (702) 474 9400Facsimile: (702) 474-9422

Attorneys for DefendantsMasterfile Corporation

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

IT MACHINES, L.L.C., individually an d ) CASE NO:

on behalf of all similarly situated Class )Members, ))

Plaintiff, 1)

V. ) NOTICE OF REMOVAL; JARED

MASTERFILE CORPORATION, a ) IN SUPPORT THEREOF

CORPORATION, a ful l service collection

) M . SECHRIST'S DECLARATION

corporation; NCS RECOVERY 1

agency; PHUSION 25; and DOES 1 1through 100, inclusive, 1

1Defendants. 1

)

PLEASE TAKE NOTICE: Defendant Masterfile Corporation

("Masterfile") hereby removes the state court action entitled IT Machin es, L.L.C.,

individually and on behalf of all simi larly situated Class Me mbersv. Masterfile

Corporation, a corporation; N C S Recovery Corporation, a fu ll service collection agency;

Phusion 25, and Does 1 through 100 inclusive,Case No. A586796, filed April 1,2009,

from the Eighth Judicial District Court for Clark County, Nevada to the United

States District Court for the District of Nevada. Federal question jurisdiction

exists over this proceeding pursuant to 28 U.S.C. 1331, and 15 U.S.C. 1692 et

seq.

Case 2:09-cv-00782-PMP-RJJ Document 1 Filed 05/01/09 Page 1 of 6


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24MORRIS PETERSO>

ATTORNEYS ATLA W0 BANK OF AMERICA PLAZ

00 SOUTH FOURTH STREEl

LASVEGAS, NEVADA891 01702 /474-9400

FAX 702 /474-9422

I . Introduction

This is an action brought by plaintiff IT Machines, L.L.C. ("IT Machines") to

recover damages for alleged violations of the Fair Debt Collection Practices Act

and various state law theories, including fraud, breach of implied covenant of

good faith and fair dealing, and deceptive trade practices. IT Machines filed this

action in the Eighth Judicial District Court of Nevada on April 1,2009.

11. This Court Has Jurisdiction Under 28 U.S.C. 5 1331,15 U.S.C. 5 1692k.

Title 28 U.S.C. 5 1441(a) permits removal of "any civil action brought in a

State Court of which the district courts of the United States have original

jurisdiction." Under this statute, "[a] defendant may remove a state court action to

federal court only if the action could have originally been filed in the federal

court." Caterpillar v. Williams, 482 U.S. 386 (1987); 28 U.S.C. 1441(a). District

courts have federal question jurisdiction over civil cases "arising under the

Constitution, laws, or treaties of the United States." 28 U.S.C. 5 1331.

Removal jurisdiction exists pursuant to 28 U.S.C. 9 1441, since it appears o n

the face of the Complaint that this is a civil action of which this Court has original

jurisdiction founded on a claim or right arising unde r the laws of the UnitedStates. 28 U.S.C. 1441(b).

IT Machines' statements in paragraphs 15,16, and 17 demonstrate tha t

federal law is the basis for its causes of action. Specifically, IT Machines describes

its allegations by directly quoting from the Fair Debt Collection Practices Act

('IFDCPA''), 15 U.S.C. 5s 1692g(b) and 1692i.This Court has original jurisdiction over FDCPA claims pursuant to 15

U.S.C. 5 1692k. Accordingly, this Court has federal question jurisdiction under 28

U.S.C. 1331.

This Court has supplemental jurisdiction pursuant to 28 U.S.C. 5 1367(a)

over IT Machine's remaining claims because these state law-based claims (1) arise

ou t of the same facts and circumstances as IT Machine's claims under 15 U.S.C. 55

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2MORRIS PETERSOK

ATTORNEYS AT LAW

0 BANKOF AMERICA PLAZl

300 SOUTH FOURTH STREETLASVEGAS, NEVADA 89101

702/474-9400

FAX 702/474-9422

1692 et seq.; and (2) are substantially related to, and properly determined with, IT

Machine's federal question claims. Jurisdiction over these claims also is

appropriate pursuant to 28 U.S.C. 1441(c).

111. Masterfile Has Satisfied the Procedural Requirements for Removal

A. This notice of removal is filed within 30 days of service of the

Complaint and summons as required by 28 U.S.C. 1446(b). IT Machines filed its

Complaint on April 1,2009. To date, Masterfile has not been served with the

Complaint nor has it been served with a summons in this action. See Sechrist Decl.

91 2. The filing of this notice of removal is within 30 days of the filing of the

Complaint and is therefore timely.

B. IT Machines filed this action in the District Court, Clark County,

Nevada on April 1,2009. See Sechrist Decl., 4[ 3; Complaint attached as Exhibit A.

C. The remaining defendants are NCS Recovery Corporation and

Phusion 25. The earliest any of the defendants could have been served is April 1,

2009, the date the Complaint was filed.

D. Venue properly lies in the Court' s unofficial Southern Division

pursuant to 28 U.S.C. 1441(a) and 1446(a) because it encompasses the EighthJudicial District Court for Clark County, where this action was originally brought.

E. Masterfile will file a copy of this Notice of Removal with the Clerk of

the Eighth Judicial District Court for Clark County and will serve a copy on all

parties as required by 28 U.S.C. 1446(d).

F. A copy of the Complaint is attached as Exhibit A. No other pleadings

were filed in the Eighth Judicial District Court for Clark County prior to removal.

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28MORRIS PETERSON

AnORNEYS AT LAW

BANK OF AMERICA PLAZA0 0 SOUTH FOURTH STREETLASVEGAS. NEVADA 8910 1

7021474-9400FAX 702/474-9422

IV. Conclusion

For these reasons, Masterfile respectfully removes this action, bearing case

number A586796, to this Court from the Eighth Judicial District Court for Clark

County, Nevada, pursuant to 28 U.S.C. 5 1441.

MORRIS PETERSON

By /s/Tared M. SechristSteve Morris, Bar No. 1543Jared M. Sechrist Bar No. 10439900 Bank of America Plaza300 South Fourth StreetLas Vegas, NV 89101

Attorneys for DefendantsMasterfile

DECLARATION OF JARED M . SECHRIST

I, Jared M. Sechrist, declare as follows:

1. I am an attorney with the law firm of Morris Peterson, counsel of

record for Masterfile Corporation in the matter IT Machine s, L.L.C., individuallyan

on behalf of al l similarly situated Class Membe rsv. Masterfile Cov pomt ion, a corporatio

NCS Recovey Covporation, a f i l l service collection agency; Phusion25, and Does 1

through ZOO inclusive. I am a member in good standing of the State Bar of Nevada

and have been admitted to practice before this Court. I have personal knowledge

of the facts set forth in this Declaration and, if called as a witness, could and

would testify competently to such facts under oath.

2. Masterfile has not been served with the Complaint nor has it been

served with a summons in this action.

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28MORRIS PETERSON

ATTORNEYS AT LAW

0 BANK OF AMERICA PLAZA00 SOUTH FOURTH STREET

LASVEGAS, NEVADA 8910 1

702/474-9400FAX 702/474-94 22

3. Attached as Exhibit A is a true and correct copy of the Complaint

filed on April 1,2009 in the matter IT Machines, L.L.C., in dividually and on behalfo

all similarly situated Class Mem bers v . Masterfile Corporation, a corporation; N C S

Recovery Corporation,a f u l l service collection agency; Phus ion 25, and Does 2 through

ZO O inclusive given case number A586796 in the Eighth Judicial District Court for

Clark County, Nevada.

Executed on the first day of May, 2009, at Las Vegas, Nevada.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct to the best of my knowledge and

ability.

/ s / Tared M. SechristJared M. SechristAttorney for Defendant Masterfile

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2tM 0 R IS P E T E R SO h

ATTORNEYS AT LAW00 BANK OF AMERICA PLAZ.

30 0 S O U T H F O U R T H S TR EE TLASVEGAS, NEVADA 89101

702/474-9400FAX 702/474-9422

CERTIFICATE OF SERVICE

Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada

Electronic Filing Procedures, I certify that I am an employee of MORRIS

PETERSON, and that the following documents were served via electronic service:

NOTICE OF REMOVAL; JARED M. SECHRIST'S DECLARATION IN

SUPPORT THEREOF:

To:N/A

I further certify that I am familiar with the f irm's practice of collection

and processing documents for mailing; that in accordance therewith, I caused the

above-named document to be deposited with the U.S. Postal Service at Las Vegas,

Nevada, in a sealed envelope, with first class postage prepa id, on the date and to

the addressee(s) shown below:

Thomas ChristensenChristensen Law Offices, L.L.C.1000 S. Valley View Blvd.Las Vegas, Nevada 89107

Dated this E d a y of May, 2009.

By: / s / Fiona Ingalls

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