District Court (Cal.) Says Embedded FDCPA Claim in Rosenthal Act Does Not Confer Federal Question Jurisdiction

In Greene v. Fay Servicing, LLC, No. 19-cv-01073-JSC, 2019 U.S. Dist. LEXIS 68107, at *7-9 (N.D. Cal. Apr. 22, 2019), Judge Green remanded a Rosenthal Act claim for absence of federal jurisdiction.

Defendants’ notice of removal asserts that federal jurisdiction exists because the second cause [*8]  of action under the RFDCPA references violations of the Fair Debt Collections Practices Act (“FDCPA“), 15 U.S.C. §§ 1692d, 1692e, and 1692f. Defendants are correct that the complaint references provisions of the FDCPA; however, it does so only in the context of its state law claim under the RFDCPA because Section 1788.17 specifically incorporates those FDCPA provisions into California law. (See Dkt. No. 1-1 at ¶¶ 42-56 (stating claim under Cal. Civ. Code § 1788.17 and referencing FDCPA provisions incorporated by § 1788.17).). The RFDCPA provides, in pertinent part: [E]very debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code. Cal. Civ. Code § 1788.17; see also Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012) (noting that “[t]he Rosenthal Act mimics or incorporates by reference the FDCPA‘s requirements, including those described above, and makes available the FDCPA‘s remedies for violations.”) (citing Cal. Civ. Code § 1788.17). Courts in the Ninth Circuit have rejected the argument that mere reference to the FDCPA in the context of an RFDCPA claim confers federal question jurisdiction. See Ghalehtak v. Fay Servicing, LLC, No. 18-cv-02306-PJH, 2018 U.S. Dist. LEXIS 93818, 2018 WL 2553570, at *2 (N.D. Cal. June 4, 2018) (collecting cases); see also Nevada v. Bank of Am. Corp., 672 F.3d 661, 674-75 (9th Cir. 2012) (finding action was not removable on federal question grounds where complaint referenced [*9]  violations of the FDCPA only in the context of its claim under Nevada’s Deceptive Trade Practices Act). The district court caselaw on this issue is on point and persuasive, especially given that the “removal statute is strictly construed against removal jurisdiction.” See Placer Dome, Inc., 582 F.3d at 1087. Accordingly, federal question jurisdiction does not exist and thus subject matter jurisdiction is lacking.