IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ASHLEY GILL, as Administratrix of )

the Estate of Marshall Gill, )

individually and on behalf of all )

similarly situated persons, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00162-KD-N

)

WELLS FARGO BANK, N.A., and )

SIROTE & PERMUTT, PC, )

Defendants. )

REPORT AND RECOMMENDATION

This action is before the Court on Motion to Remand (Doc. 11) filed by 

Plaintiff Ashley Gill, as Administratix of the Estate of Marshall Gill, individually 

and on behalf of all similarly situated persons (“Gill”), to which the Defendant Wells 

Fargo Bank, N.A. (“Wells Fargo”) has filed a response in opposition (Doc. 13).1 This 

matter is now under submission (see Doc. 12) and has been referred to the 

undersigned Magistrate Judge for entry of a report and recommendation under 28 

U.S.C. § 636(b)(1)(B)-(C) and Federal Rule of Civil Procedure 72(b). Upon 

consideration, and for the reasons stated herein, the undersigned RECOMMENDS

that Gill’s Motion to Remand (Doc. 11) be DENIED.

I. Procedural History

On October 2, 2012, Gill filed a complaint in the Circuit Court of Dallas 

County, Alabama, alleging a number of state-law causes of action against the 

 1 Though given the opportunity (see Doc. 12), Defendant Sirote & Permutt, PC has not filed 

a response to the motion, nor has Gill filed a reply to Wells Fargo’s response.

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Defendants arising from the foreclosure of the decedent’s homestead and the 

servicing of the mortgage thereto. (Doc. 1-2 at 5 – 31) Gill alleged claims both 

individually and on behalf of a proposed class of similarly-situated individuals. 

On March 13, 2015, Gill, without first seeking leave of court, filed a First 

Amended Complaint (Doc. 1-3 at 212 – 245) alleging, in addition to various state-law 

causes of action similar to those in the initial complaint, a claim against the 

Defendants for violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 

1692, et seq. (“FDCPA”) (Count 14).2 On March 23, 2015, Wells Fargo removed the

case to this Court under 28 U.S.C. § 1441(a) (“Except as otherwise expressly 

provided by Act of Congress, any civil action brought in a State court of which the 

district courts of the United States have original jurisdiction, may be removed by the 

defendant or the defendants, to the district court of the United States for the district 

and division embracing the place where such action is pending.”). As Wells Fargo 

correctly notes, removal was proper under § 1441(a) because this Court has original 

jurisdiction over Gill’s FDCPA claim, under 28 U.S.C. § 1331 (“The district courts 

shall have original jurisdiction of all civil actions arising under the Constitution, 

laws, or treaties of the United States.”).3

Gill’s motion to remand under 28 U.S.C. § 1447(c) (Doc. 11) raises only one 

 2 The First Amended Complaint also makes passing references to the federal Truth in 

Lending Act (“TILA”) and the Racketeer Influenced and Corrupt Organizations Act 

(“RICO”).

3 Though not expressly alleged in the notice of removal, this Court has supplemental 

jurisdiction over Gill’s state law claims under 28 U.S.C. § 1367(a). Diversity of citizenship 

under 28 U.S.C. § 1332 is not alleged as an alternative basis for jurisdiction.

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argument meriting discussion:4 that the First Amended Complaint containing Gill’s 

federal cause of action was not “operative” at the time of removal because the state 

circuit court had not yet approved dismissal of Gill’s class action claims. For the 

reasons set forth herein, this argument is meritless.

II. Analysis

As Wells Fargo points out, under Alabama Rule of Civil Procedure 15(a), 

“[u]nless a court has ordered otherwise, a party may amend a pleading without 

leave of court, but subject to disallowance on the court's own motion or a motion to 

strike of an adverse party, at any time more than forty-two (42) days before the first 

setting of the case for trial, and such amendment shall be freely allowed when justice 

so requires” (emphasis added).5 Wells Fargo represents, the state court record 

attached to the notice of removal (Docs. 1-2, 1-3) confirms, and Gill does not 

challenge that, prior to removal, “[t]his action has never been set for trial and there 

were no orders from the Circuit Court of Dallas County that limited Gill’s ability to 

file an Amended Complaint.” (Doc. 13 at 2). Accordingly, it would seem that Gill’s 

First Amended Complaint was operative upon filing in the circuit court. Gill 

argues, however, that her First Amended Complaint, which purportedly dropped the 

 4 Gill also claims, incorrectly, that Defendant Sirote & Permutt, who was joined and served 

in the state court action at the time of removal, has not joined in or consented to Wells 

Fargo’s removal. See 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely 

under section 1441(a), all defendants who have been properly joined and served must join in 

or consent to the removal of the action.”). Sirote & Permutt’s consent to removal (Doc. 1-4) 

was attached as an exhibit to the notice of removal.

5 “Thereafter, a party may amend a pleading only by leave of court, and leave shall be given 

only upon a showing of good cause.” Ala. R. Civ. P. 15(a).

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class action claims made in her initial complaint,6 could not have become operative 

upon filing because of Alabama Rule of Civil Procedure 23(e), which provides: “A 

class action shall not be dismissed or compromised without the approval of the court, 

and notice of the proposed dismissal or compromise shall be given to all members of 

the class in such manner as the court directs.” 

First, Rule 23(e) is inapplicable because there was no “class action” pending at 

the time Gill filed her First Amended Complaint – only a proposed or requested class 

action. Under Title 6, Chapter 5, Article 33 of the Code of Alabama, “[n]o class of 

civil litigants shall be certified or recognized by any court of the State of Alabama 

unless there shall have been compliance with the procedures for certification of the 

class set forth in this article.”7 Ala. Code § 6-5-641(a). Such required procedures 

include those set forth in Ala. Code § 6-5-641(e), which provides:

When deciding whether a requested class is to be certified, the court 

shall determine, by employing a rigorous analysis, if the party or 

parties requesting class certification have proved its or their 

entitlement to class certification under Ala. R. Civ. P. 23. The burden of 

coming forward with such proof shall at all times be on the party or 

 6 Wells Fargo disputes this claim, pointing to stray allegations referencing class claims that 

remain in the First Amended Complaint. For purposes of the present motion remand, the

undersigned assumes without deciding that no class claims are asserted in the First 

Amended Complaint.

7 “This article shall apply to and govern all civil class actions brought in the state courts of 

Alabama pursuant to Alabama Rule of Civil Procedure 23. The provisions of this article, 

where inconsistent with any Alabama Rule of Civil Procedure, including, but not limited to, 

Ala. R. Civ. P. 23, shall supersede such rules or parts of rules.” Ala. Code § 6-5-640. See 

also Ala. R. Civ. P. 23, Feb. 13, 2004 comm. comments (“Rule 23(c)(1) should be read in 

conjunction with Act No. 99-250, Ala. Acts 1999, effective May 25, 1999, which is codified at 

§§ 6-5-640 through -642, Code of Alabama 1975. Although the act works few changes in Rule 

23 as the Alabama Supreme Court has already interpreted it, § 6-5-641 does supplement the 

discretionary provisions of Rule 23(c)(1). The net effect of this supplementation is to provide 

for nondiscretionary hearing and documentation requirements in the circuit court.”).

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parties seeking certification, and if such proof shall not have been 

adduced, the court shall not order certification of the class. In making 

this determination, the court shall analyze all factors required by Ala.

R. Civ. P. 23 for certification of a class and shall not order certification 

unless all such factors shall have been established. In announcing its 

determination, the court shall place in the record of the action a written 

order addressing all such factors and specifying the evidence, or lack of 

evidence, on which the court has based its decision with regard to 

whether each such factor has been established. 

A review of the state court record attached to the notice of removal (Docs. 1-2, 

1-3) reveals that no such order was entered by the circuit court.8 9 

“Certification of a class is the critical act which reifies the unnamed class 

members and, critically, renders them subject to the court's power.” In re Checking 

Account Overdraft Litig., 780 F.3d 1031, 1037 (11th Cir. 2015). “Neither a proposed 

class action nor a rejected class action may bind nonparties.” Smith v. Bayer Corp., 

131 S. Ct. 2368, 2380 (2011) (interpreting Federal Rule of Civil Procedure 23). 

The stated purpose of Rule 23(e) is to provide “stock protection against unjust class 

action compromises.” Ala. R. Civ. P. 23, 1973 comm. comments. See also Perdue v. 

Green, 127 So. 3d 343, 356 (Ala. 2012) (per curiam) (“There can be no settlement of a 

 

8 See also Ala. R. Civ. P. 23(c)(1) (“As soon as practicable after the commencement of an 

action brought as a class action, the court shall determine by order whether it is to be so 

maintained.” (emphasis added)); Bill Heard Chevrolet Co. v. Thomas, 819 So. 2d 34, 40 (Ala. 

2001) (“ ‘[C]lass actions may not be approved lightly and ... the determination of whether the 

prerequisites of Rule 23 have been satisfied requires a “rigorous analysis.” ’ Ex parte Citicorp 

Acceptance Co., 715 So. 2d 199, 203 (Ala. 1997); see also § 6–5–641, Ala. Code 1975. The 

plaintiff must offer sufficient evidence of the Rule 23 criteria; this evidence must be 

referenced in the trial court's order before class certification is proper. See Ex parte Water 

Works & Sewer Bd. of the City of Birmingham, 738 So.2d 783, 787 (Ala. 1998).”).

9 The Defendants did file motions to dismiss Gill’s class action claims as a matter of law 

under Alabama Rule of Civil Procedure 12(b)(6). However, the circuit court denied those 

motions, finding that the matter “should be presented in the form of a motion for summary 

judgment as opposed to a motion to dismiss.” (Doc. 1-2 at 238).

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class action without the trial court's approval. Rule 23(e) Ala. R. Civ. P. Requiring 

the trial court's approval of the settlement protects the class from unjust settlements 

or voluntary dismissals.” (quotations omitted)). Because a class had never been 

certified in Gill’s state court action, there were no unnamed class members to 

protect, and Alabama Rule of Civil Procedure 23(e) did not come into play.

Even assuming that a class action was actually pending, under the Alabama 

Rules of Civil Procedure, a party is permitted to drop claims and parties through 

amendment of the pleadings under Rule 15, rather than through dismissal under 

Rule 41 (governing the “dismissal of actions”), and the two concepts are distinct. 

See Ala. R. Civ. P. 15, 1973 comm. comments (under Rule 15 “it will be entirely 

irrelevant that a proposed amendment changes the cause of action or the theory of 

the case or that it states a claim arising out of a transaction different from that 

originally sued on or that it caused a change in parties”); Hope Developers, Inc. v. 

Vandiver, 582 So. 2d 1073, 1076 (Ala. 1991) (“The dismissal against some but not all 

of the claims against [a defendant] presents a different question. Again, the 

authorities are not uniform in their treatment of the question...The better 

authorities seem to be those that say such a ‘dismissal’ is not really a dismissal 

under Rule 41, but an amendment of a complaint under Rule 15(a).” (assuming 

without deciding the issue)). Moreover, unlike Rule 15(a), Rule 41(a) (governing 

voluntary dismissals without court order) is specifically “[s]ubject to the provisions of 

Rule 23(e)...”

Under the plain terms of Rule 15(a), Gill’s First Amended Complaint was only 

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“subject to disallowance on the court's own motion or a motion to strike of an adverse 

party” after being filed. Under § 1447(c), a “district court must determine whether 

it had subject matter jurisdiction at the time of removal.” Poore v. Am.-Amicable 

Life Ins. Co. of Tex., 218 F.3d 1287, 1290-91 (11th Cir. 2000) (emphasis added), 

overruled on other grounds, Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 

2007) (per curiam) (“Poore is overruled to the extent we held that a remand for lack 

of subject matter jurisdiction pursuant to § 1447(c) is reviewable if it is based on a 

post-removal amendment to the complaint.”). Accord Leonard v. Enter. Rent a Car, 

279 F.3d 967, 972 (11th Cir. 2002) (“[F]or purposes of this challenge to the subject 

matter jurisdiction of the district court, the critical time is the date of 

removal—October 10, 1997. See Poore v. American–Amicable Life Ins. Co. of Tex.,

218 F.3d 1287, 1289–91 (11th Cir. 2000). If jurisdiction was proper at that date, 

subsequent events...will not operate to divest the court of jurisdiction. See id. at 

1291.”); Smith v. Wynfield Dev. Co., Inc., 238 F. App'x 451, 455 (11th Cir. 2007) (per 

curiam) (unpublished) (“[A] district court's removal jurisdiction is determined at the 

time of removal...”). 

This Court will not speculate when or even if the circuit court or the 

Defendants might have acted to disallow the First Amended Complaint, whether 

based on the supposed improper removal of class action allegations or otherwise. 

Moreover, Rule 15(a) does not indicate that an amended pleading is subject to 

disallowance by its own proponent; thus, Gill’s representation that she herself 

planned to move the circuit court to dismiss her class action claims merits no 

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consideration.

Finally, even if Gill is correct that the court was required to approve the 

dropping of her class claims from the complaint, she has cited no authority 

explaining why Rule 23(e) would affect the pendency of her individual claims in the 

First Amended Complaint, which include the federal cause of action that is the basis 

for removal jurisdiction, which she was indisputably free to amend without court 

order. See Ala. R. Civ. P. 15(a). Even if approval was, and still is, needed to effect 

dismissal of her class action claims, the Federal Rules of Civil Procedure now apply 

to this case, see Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is 

removed from a state court.”), and Gill may seek leave under Federal Rule of Civil 

Procedure 23(e) (“The claims, issues, or defenses of a certified class may be settled, 

voluntarily dismissed, or compromised only with the court’s approval.” (emphasis 

added)).

In sum, Gill’s claim that the federal cause(s) of action asserted in her First 

Amended Complaint were not in effect at the time of removal are without merit, and 

the undersigned finds that removal was properly based on jurisdiction under § 1331.

III. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that Gill’s 

Motion to Remand (Doc. 11) be DENIED.

IV. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything 

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in it must, within fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); 

Fed. R. Civ. P. 72(b); SD ALA LR 72.4. The parties should note that under Eleventh 

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in accordance with the 

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the 

district court's order based on unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the consequences on appeal for 

failing to object. In the absence of a proper objection, however, the court may review 

on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. 

In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely incorporates by reference 

or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 1st day of June 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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