United States District Court, D. Kansas
JEFFREY P. HOULIK, et al., Plaintiffs,
SANTANDER CONSUMER, USA, INC., et al., Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On December 20, 2012, Jeffrey P. Houlik and Charla L. Houlik filed suit against Santander Consumer, USA, Inc. and National Recovery Agency, LLC in the District Court of Sedgwick County, Kansas, seeking damages for wrongful repossession of a pickup truck. See Petition, Exhibit 3 to Defendant's Notice Of Removal (Doc. #1). On April 3, 2014, Santander removed the case to this Court, asserting diversity jurisdiction under 28 U.S.C. §1332. Defendant's Notice Of Removal (Doc. #1). On April 4, 2014, plaintiffs filed a Motion For Remand And Request For Emergency Hearing (Doc. #5). On April 7, 2014, the Court overruled plaintiffs' request for an emergency hearing. This matter thus comes before the Court on plaintiffs' motion for remand. For reasons set forth below, the Court finds that the motion to remand should be sustained.
Plaintiffs' state court petition alleges as follows.
Plaintiffs are residents of Kansas. Santander is an Illinois corporation with its principal place of business in North Richland Hill, Texas. National Recovery is a Kansas limited liability company.
On February 28, 2006, plaintiffs purchased a pickup truck with financing from CitiFinancial Auto Corporation. In September of 2010, CitiFinancial assigned its interest in the pickup to Santander.
On December 27, 2010, Santander hired National Recovery to repossess the pickup after it erroneously concluded that plaintiffs had defaulted on their loan. An agent of National Recovery physically accosted Mr. Houlik and drove off with the truck even though Mr. Houlik told them that he had stored his tools in the truck.
Although plaintiffs demanded that Santander return the illegally seized pickup, it held the truck for 80 days. When it returned the truck, all of plaintiffs' tools were gone. As a result, plaintiffs lost personal property, work opportunities and use of the truck and incurred attorney fees to recover the truck.
Santander engaged in a deceptive practice under the Kansas Consumer Protection Act ("KCPA") when it wrongfully continued to hold the truck. Plaintiffs are entitled to civil penalties and attorney fees under the KCPA. Plaintiffs seek judgment in excess of $75, 000 plus costs and any other relief which the Court deems just or equitable. Petition (Doc. #1-3).
On January 20, 2013, plaintiffs served the state court petition on National Recovery. National Recovery has not filed an answer or otherwise appeared in the state court action or in this removed action. Plaintiffs have not conducted any discovery as to National Recovery. Santander has appeared and defended this matter.
On March 10, 2014, the state court entered an Agreed Pretrial Conference Order ("Pretrial Order"). The section on "Plaintiffs' Contentions And Theory Of Recovery" essentially echos their petition, asserting in part as follows:
In spite of the fact that the defendants knew that the pickup payments were current and that the pickup had been illegally seized, the defendants continued to hold the pickup for 80 days after the illegal conversion.
As a result of the defendants' conduct, the plaintiffs incurred attorney fees to regain the truck, lost work opportunities, lost personal property, and loss of use of the vehicle. The plaintiff is a consumer under the Kansas Consumer Protection Act. Santander is a supplier under the same act. The defendant's conduct in wrongfully continuing to hold property it knew had been illegally converted is a deceptive act practice under the Kansas Consumer ...