Credit Card Billing Fraud Appellant's Opening Brief

Case: 19-35372, 06/30/2019, ID: 11349629, DktEntry: 3, Page 1 of 35
No. 19-35372
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
OLEG BORISOV,
Plaintiff-Appellant
v.
ALAMO RENT A CAR, et al.,

Defendants-Appellees
On Appeal from the United States District Court

for the Western District of Washington At Tacoma
No. 18-cv-05847-BHS
Hon. District Judge Benjamin H. Settle
APPELLANT’S OPENING BRIEF
Oleg Anatolyevich Borisov

6014 NE 107th Avenue
Vancouver, WA 98662
(503) 997-3567
borisov84@yahoo.com
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................. iiiii
INTRODUCTION .....................................................................................................1
JURISDICTIONAL STATEMENT ..........................................................................1
ISSUE PRESENTED .................................................................................................1
STATEMENT OF THE CASE ..................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................3
A. Standard of Review .....................................................................................5
B. The District Court’s Exercise of Removal Jurisdiction Over A Second

Amended Complaint That Was Never Filed in A State Court Was
Improper as A Matter of Well-Settled Law.…………………………………5
CONCLUSION ........................................................................................................22
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Arbaugh v. Y & H Corp.
546 U.S. 500 (2006).………………………………………………………...5
Association of Mexican-American Educators v. California

231 F.3d 572, 590 (9th Cir. 2000)………………………………………….17
Axiom Foods, Inc. v. Acerchem Int’l, Inc.

874 F.3d 1064, 1067 (9th Cir. 2017)………………………………………...3
Bank of the United States v. Planters’ Bank of Georgia

22 U.S. (9 Wheat.) 904 (1824)………………………………………………6
Beeman v. TDI Managed Care Svcs.

449 F.3d 1035, 1038 (9th Cir. 2006)………………………………………...4
Bishop Paiute Tribe v. Inyo Cty.

863 F.3d 1144, 1151 (9th Cir. 2017)………………………………………...2
Brotherhood of Locomotive Firemen & Enginemen v. NLRB

302 F.2d 198, 201 (9th Cir. 1962)………………………………………….10
Casey v. Albertson’s Inc.

362 F.3d 1254, 1257 (9th Cir. 2004)………………………………………...4
Chang v. United States

327 F.3d 911, 925 (9th Cir. 2003)…………………………………………...4
Cohens v. Virginia
19 U.S. (6 Wheat.) 264 (1821)………………………………………………6
Dolan v. United States

560 U.S. 605, 610 (2010)……………………………………………………7
iii
iv
Dougherty v. City of Covina

654 F.3d 892, 897 (9th Cir. 2011)…………………………………………...2
Earth Island Institute v. Ruthenbeck

490 F. 3d 687, 694 (9th Cir. 2007)…………………………………………16
Ex parte McCardle
7 Wall. 506, 514 (1868)……………………………………………………..7
Forest Grove School Dist. v. T.A.

523 F.3d 1078, 1085 (9th Cir. 2008…………………………………………4
Fox v. Vice
563 U.S. 826, 839 (2011)……………………………………………………4
Jeff D. v. Otter
643 F.3d 278, 283 (9th Cir. 2011)…………………………………………..4
Harris v. Bankers Life & Cas. Co.

425 F.3d 689, 692 (9th Cir. 2005)…………………………………….2, 8, 11
Koon v. United States

518 U.S. 81, 100 (1996)……………………………………………………..4
Lanza v. Ashcroft
389 F.3d 917, 936 (9th Cir. 2004)…………………………………………16
Lazar v. Kroncke
862 F. 3d 1186, 1193, 1199-1200 (CA9, 2017)…………………………3, 19
Lyon v. Chase Bank USA, N.A.

656 F.3d 877, 880, 885, 888 (9th Cir. 2011)…………………………...22, 23
Los Angeles Lakers, Inc. v. Fed. Ins. Co.

869 F.3d 795, 802 (9th Cir. 2017)…………………………………………..5
Mansfield, C. & L.M.R. Co. v. Swan

111 U.S. 379, 382 (1884)……………………………………………………7
iv
McDonald v. Sun Oil Co.

548 F.3d 774, 780 (9th Cir. 2008)…………………………………………...5
Nev. ex rel. DOT v. United States

925 F. Supp. 691, 703 (Dist. Ct. Nevada 1996)……………………………10
Osborn v. Bank of the United States

22 U.S. (9 Wheat.) 738 (1824)………………………………………………6
Peterson v. Highland Music, Inc.

140 F.3d 1313, 1317 (9th Cir. 1998)………………………………………..3
Prather v. AT&T, Inc.

847 F.3d 1097, 1102 (9th Cir. 2017)………………………………………..3
Providence Health Plan v. McDowell

385 F.3d 1168, 1171 (9th Cir. 2004)………………………………………..3
Reed v. Lieurance
863 F.3d 1196, 1208 (9th Cir. 2017)………………………………………..4
Richard S. v. Dep’t of Dev. Servs.

317 F.3d 1080, 1085-86 (9th Cir. 2003)…………………………………….4
Saffron v. Wilson
70 F.R.D. 51, 56 (D.D.C. 1975)……………………………………………24
Schleining v. Thomas
642 F.3d 1242, 1246 (9th Cir. 2011)………………………………………..4
Schnabel v. Lui
302 F.3d 1023, 1029 (9th Cir. 2002)……………………………………..2, 3
State v. Reader’s Digest Ass’n

81 Wn.2d 259, 501 P.2d 290 (1972)………………………………………18
Steel Co. v. Citizens for a Better Env’t

523 U.S. 83, 94-95 (1998)………………………………………………..7, 8
v
vi
Strauss v. Comm’r of the Soc. Sec. Admin.

635 F.3d 1135, 1137 (9th Cir. 2011)………………………………………...4
Sveen et al v. Melin
138 S. Ct. 1815, 584 U.S. ___ (2018)……………………………………...19
Thornell v. Seattle Service Bureau, Inc.

184 Wash.2d 793, 801, 363 P. 3d 587 (2015)……………………………...18
United States v. Beltran-Gutierrez

19 F.3d 1287, 1289 (9th Cir. 1994)………………………………………….4
United States v. Katz

271 U.S. 354, 357 (1926)…………………………………………………..10
United States v. Kelly

874 F.3d 1037, 1046 (9th Cir. 2017)………………………………………...4
United States v. Saunders

89 U.S. (22 Wall. ) 492 (1875)……………………………………………..10
Federal Constitution
Article I……………………………………………………………………………19
Article I, §10, Clause 1 …………………………………………………………...18
Article III, § 2………………………………………………………………………2
Article III, § 2, Clause 1……………………………………………………………5
Statutes
15 U.S.C. §§ 1601 et seq.…………………………………………………………17
15 U.S.C. § 1640(a)(2)..…………………………………………………………..20
15 U.S.C. § 1666(a)(3)(B)(ii)……………………………………………..………19
vi
vii
28 USC §1331.……………………………………………………………………..5
Chapter 89, 28 U.S. Code…………………………………………………………..6
28 U.S.C. §§ 1441 et seq. ……………………………………………….2, 7, 10, 14
28 U.S.C. §1441(a)……………………………………………….……………….10
28 U.S.C. § 1446(a)…………………………………………………………….9, 10
28 U.S.C. § 1446(b)………………………………………………………………...9
28 U.S.C. § 1446(b)(1)……………………………………………………..………8
28 U.S.C. § 1446(b)(3)……………………………………………………………..8
28 U.S.C. §1446(d)……………………………………………………….………10
28 U.S.C. § 1447………………………………………………………………….10
28 U.S.C. § 1448………………………………………………………………….10
Federal Rules of Civil Procedure
Rule 3……………………………………………………………………………..12
Rule 11………………………………………………………………………..11, 16
Rule 12(b)(6)……………………………………………………………………….2
Rule 12(h)(3)……………………………………………………………………….7
Rule 15(c)…………………………………………………………………………12
U.S. District Court for the Western District of Washington Local Civil Rules
LCR 101…………………………………………………………………………..15
LCR 101(a). ………………………………………………………………………15
vii
viii
LCR 101(b)………………………………………………………………………..15
Revised Code of Washington (RCW)
RCW 19.86………………………………………………………………………..17
Washington State Superior Court Civil Rules (CR)
CR 3……………………………………………………………………………….12
Other Authorities
3A Karl B. Tegland, Washington Practice Series:

Rules Practice, at 39 (2013).……………………………………………….12
14 Karl B. Tegland, Washington Practice Series:

Civil Procedure §§ 7:1-7:3 at 213-215 (2009)……………………..………12
viii
INTRODUCTION
This appeal presents for review a determination whether a District Court
acquires jurisdiction, constitutional, statutory or otherwise, over a Second
Amended Complaint (“SAC”) that has never been filed in a state court.
JURISDICTIONAL STATEMENT
The District Court claimed federal removal subject matter jurisdiction under
28 U.S.C. §§ 1331 and 1441 et seq. because Appellant, Oleg Borisov (“Borisov”)
hypothesized claims arising under federal law in an unfiled SAC.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The district court’s
Order and Judgment were entered on January 24, 2019. Appellant’s Excerpts of
Record (“ER”)-9 and 10.
On January 27, 2019, Borisov filed a timely Motion for Reconsideration,
ER-69, which was denied on April 1, 2019, ER-23.
Borisov timely filed this Notice of Appeal on April 30, 2019. ER-1.
ISSUE PRESENTED
On October 2, 2018, Counsel for Alamo Rent A Car, SNORAC, LLC and
Enterprise Holdings Inc., (collectively, “Enterprise”,) provided to Counsel for
JPMorgan Chase & Co., JPMorgan Chase Bank National Association, and Chase
Bank USA, National Association, (collectively, “Chase”), a copy of an unfiled
Second Amended Complaint (“SAC”) which was being used by Borisov as part of
his settlement negotiations with Enterprise. On October 17, 2018, Chase filed the
unfiled SAC in the District Court and untruthfully represented to the District Court
that the unfiled SAC was the “operative complaint” being removed from state
court. On deciding Borisov’s Motion for Reconsideration, ER-69, the District
Court ruled it had both Article III and removal jurisdiction of the unfiled SAC
pursuant to this Court’s statutory interpretation of the federal removal statutes
announced in Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir. 2005).
ER-23.
Did the District Court properly exercise general jurisdiction pursuant

to Article III, section 2 and removal jurisdiction pursuant to 28 U.S.C.
§§ 1441 et seq. when the SAC had never been filed in any state court?
STATEMENT OF THE CASE
On October 17, 2018, Chase filed in the District Court a copy of Borisov’s
unfiled SAC which was being used by Borisov to encourage settlement, conserve
judicial resources and avoid publicity.
The District Court dismissed the unfiled SAC in favor of Chase and
Enterprise, ER-9 and 10 and further claimed jurisdiction was proper pursuant to
Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir. 2005), ER-24 (“In this
case, the Court agrees with Chase that receipt of the SAC was sufficient to trigger
removal.”)
SUMMARY OF THE ARGUMENT
A Defendant may not commence a lawsuit on behalf of a Plaintiff. Anything
to the contrary nullifies every State and Federal rule of civil and constitutional
procedure.
ARGUMENT
A. Standard of Review.
The court reviews de novo dismissals based on a failure to state a claim
pursuant to Rule 12(b)(6). Dougherty v. City of Covina, 654 F.3d 892, 897 (9th
Cir. 2011).
The existence of subject matter jurisdiction is a question of law reviewed de
novo. Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151 (9th Cir. 2017);
Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002).
The district court’s findings of fact relevant to its determination of subject
matter jurisdiction are reviewed for clear error under the clearly erroneous
standard. Prather v. AT&T, Inc., 847 F.3d 1097, 1102 (9th Cir. 2017), cert. denied,
137 S. Ct. 2309 (2017); Schnabel, 302 F.3d at 1029.
Removal is a question of federal subject matter jurisdiction reviewed de
novo. Providence Health Plan v. McDowell, 385 F.3d 1168, 1171 (9th Cir. 2004);
Schnabel, 302 F.3d at 1029.
This court reviews de novo subject matter jurisdiction even when a party
fails to object to removal. Schnabel, 302 F.3d at 1029.
Whether subject matter jurisdiction existed for the original action is a
question of law reviewed de novo. Schnabel, 302 F.3d at 1029.
Rulings and issues of personal jurisdiction, including decisions to dismiss
for lack of personal jurisdiction, are reviewed de novo. Axiom Foods, Inc. v.
Acerchem Int’l, Inc., 874 F.3d 1064, 1067 (9th Cir. 2017); Lazar v. Kroncke, 862
F.3d 1186, 1193 (9th Cir. 2017), cert. denied.

Whether a district court exceeded its authority in exercising personal
jurisdiction is also reviewed de novo. Peterson v. Highland Music, Inc., 140 F.3d
1313, 1317 (9th Cir. 1998).
A district court’s statutory interpretations are reviewed de novo. United
States v. Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017); Schleining v. Thomas, 642
F.3d 1242, 1246 (9th Cir. 2011); Beeman v. TDI Managed Care Svcs., 449 F.3d
1035, 1038 (9th Cir. 2006).
A District Court abuses its discretion when:
(1) It does not apply the correct law or rests its decision on a clearly
erroneous finding of a material fact. Reed v. Lieurance, 863 F.3d 1196, 1208 (9th
Cir. 2017); Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir. 2011) (citing Casey v.
Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004));
(2) It rules in an irrational manner. Chang v. United States, 327 F.3d 911,
925 (9th Cir. 2003);
(3) It makes an error of law. Koon v. United States, 518 U.S. 81, 100
(1996); Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1137 (9th Cir.
2011) (citing Koon); Forest Grove School Dist. v. T.A., 523 F.3d 1078, 1085 (9th
Cir. 2008) (applying Koon);
(4) It erroneously interprets a law. United States v. Beltran-Gutierrez, 19

F.3d 1287, 1289 (9th Cir. 1994), or when,
(5) It rests its decision on an inaccurate view of the law, Richard S. v.

Dep’t of Dev. Servs., 317 F.3d 1080, 1085-86 (9th Cir. 2003); Fox v. Vice, 563
U.S. 826, 839 (2011) (recognizing a trial court has wide discretion “but only when,
it calls the game by the right rules”).
B. The District Court’s Exercise of Removal Jurisdiction Over A Second

Amended Complaint That Was Never Filed in A State Court Was
Improper as A Matter of Settled Law.
A well-settled canon of statutory construction requires a Court to begin its
analysis with the text of the statute. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869
F.3d 795, 802 (9th Cir. 2017), citing McDonald v. Sun Oil Co., 548 F.3d 774, 780
(9th Cir. 2008), abrogated on other grounds by CTS Corp. v. Waldburger, 134 S.
Ct. 2175 (2014) and Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004).
The Court’s inquiry must end where the text of the statute is unambiguous.”
Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d at 802. If the statute’s language
is plain, the court is to enforce it according to its terms. Id. at 802.
The Constitutional authority for “federal question” exercise of judicial
Power in cases of removal is found in Article III, Section 2, Clause 1, which
delineates the scope of the federal judicial power by listing nine kinds of “Cases”
and “Controversies” to which the “judicial Power” of the United States may
extend.
The basic statutory grant of federal-court subject-matter jurisdiction is
contained in 28 USC §1331. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006).
A plaintiff properly invokes §1331 jurisdiction when she/he pleads a colorable
claim “arising under” the Federal Constitution or laws. Arbaugh v. Y & H Corp.,
546 U.S. 500, 513 (2006).

Article III, Section 2, Clause 1 and Chapter 89 of 28 U.S. Code stands for
the proposition that an unfiled complaint is incapable of creating a “case” or
“controversy” that can be reached through the exercise of federal judicial Power.
The Framers intended the scope of the constitutional jurisdiction to be broad.
The earliest authoritative answers to the exercise of federal question jurisdiction
were set forth in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738
(1824) and Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. (9
Wheat.) 904 (1824).
In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), the Court considered a
challenge to its own authority to exercise appellate jurisdiction over a case
originating in state court. The Court noted that: “The mode of removal is form, and
not substance.” Cohens v. Virginia, 19 U.S. at 411.
The Supreme Court’s decisions in Cohens, Osborn and Planters’ Bank made
clear that Article III authorizes removal of any case from a state court in which a
defense under federal law has been invoked, even though the federal issue may
prove not to be dispositive.
Congress has also expressly authorized the removal of actions from state to
federal court. Chapter 89 of 28 U.S. Code is titled: “Removal of Cases From State
Courts”. When enacting this Chapter, Congress, as a prerequisite to its application,
limited the District Court’s exercise of “federal-question jurisdiction” to

proceedings commenced in, filed in, pending in or otherwise originating from, a
“State Court.”
Each section of Chapter 89, §§ 1441 through 1455, unambiguously require
the action to have originated in or from a state court. These are procedural
requirements that have been made jurisdictional by an Act of Congress and
therefore absolute. See, Dolan v. United States, 560 U.S. 605, 610 (2010)
(Explaining that neither the parties nor the court can waive a “jurisdictional”
“prohibition” that has been made “absolute”.). See also Rule 12(h)(3) which
instructs: “If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
The reason for this “‘springs from the nature and limits of the judicial power
of the United States,’” which are “inflexible and without exception.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. &
L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
“‘Without jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the
cause.’” Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514
(1868)).
Thus, a court may not “resolve contested questions of law when its
jurisdiction is in doubt,” but must instead decide jurisdiction first. Steel Co., 523
U.S. at 101. To do otherwise, the Supreme Court has held, is “to act ultra vires.”
Id. at 101-02.
Before exercising removal jurisdiction over the SAC, the District Court was
required to find the existence of the fact that the SAC was pending in the state
court and thus removed from the state court.
The District Court found facts contrary to the removal statutes. In its “Order
Requesting Response and Renoting Plaintiff’s Motion For Reconsideration”, ER-
75, the District Court found the removal of the SAC was not based on the SAC
having been filed in state court:
“(Defendants Chase Bank USA, National Association, JPMorgan

Chase & Co., and JPMorgan Chase Bank National Association …
“received a copy of the second amended complaint from their
codefendants’ counsel on October 2, 2018.”). On October 17, 2018,
Chase removed the matter to this Court. Dkt. 1. In support of its
removal, Chase attached a current docket sheet reflecting the filings in
the state court. Dkt. 2-1 at 2. Notably absent from that sheet is any
indication that Borisov filed the SAC in state court. Id. ER-76.
In response to the Court’s Order Requesting Response, Chase argued that
removal was proper pursuant to 28 U.S.C. §§ 1446(b)(1) and (b)(3) and cited this
Court’s holding in Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 692 (9th Cir.
2005) for support. See, ER-80.

10
Chase’s argument is fallacious at best. Harris involved a pleading that had
been filed in state court and required the Court to consider “whether the
jurisdictional facts supporting removal of an action from state court to federal court
must be apparent from the face of the initial pleading or whether the mere spectre
of removability triggers a duty of inquiry.” Harris, 425 F.3d 689 at 690.
The District Court agreed with Chase’s argument and held that Chase’s
“receipt of the SAC was sufficient to trigger removal. The relevant statute provides
that a defendant may remove upon “receipt” of an amended pleading. 28 U.S.C. §
1446(b). Thus, once Chase received the SAC, it was authorized to remove the
matter even though Borisov did not file the SAC in state court.” See, ER-24. This
interpretation strains credulity. Moreover, the District Court cites no authority for
this statutory interpretation.
During its analysis of 28 U.S.C. § 1446(a), the Court in Harris described the
“procedure for removal” set out in 28 U.S.C. § 1446(a) and resolved that “[t]he
statute provides two thirty-day windows during which a case may be removed….”
Harris, 425 F.3d 689 at 692.
The operative terms in Chapter 89 and Harris are the adjective “removal”
and the verb “removed”. Harris did not and could not hold that a complaint, not
filed in state court, was “removable” or capable of being “removed” to Federal
Court before it is ever filed.

11
This is so because any other reading of Chapter 89 and Harris would change
the ancient definitions of the terms “removal” and “removed”. Stated differently, if
the Ninth Circuit Court of Appeals was not to be found within The James R.
Browning Courthouse located at 95 7th Street, San Francisco, CA 94103, it would
be impossible to take this Court off, or away from, the position being occupied and
remove the Court to 10 Downing Street in London.
A statutory construction which does not serve the aims of Congress “is to be
avoided unless the words Congress has chosen clearly compel it.” Brotherhood of
Locomotive Firemen & Enginemen v. NLRB, 302 F.2d 198, 201 (9th Cir. 1962).
See also, Nev. ex rel. DOT v. United States, 925 F. Supp. 691, 703 (Dist. Ct.
Nevada 1996) (“It has thus become a judicial responsibility to find that
interpretation which can most fairly be said to be embedded in the statute….”);
United States v. Katz, 271 U.S. 354, 357 (1926) (“All laws are to be given a
sensible construction.”); United States v. Saunders, 89 U.S. (22 Wall. ) 492 (1875)
(A statute is to be interpreted not only by its exact words, but also by its apparent
general purpose.)
Moreover, the “remand” provisions contained in 28 U.S.C. §§ 1447 and
1448 further renders Chase’s argument and the District Court’s holdings untenable
12
since an “order remanding a case to the State court from which it was removed”
cannot return an unfiled complaint to a position it never occupied in the state court.
Sections 1441 through 1455 of Chapter 89, U.S. Code contain no ambiguous
terms. The SAC originated from a lawyer and not a state court. Section §1441(a) is
plain and clear:
“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.”
The SAC has never been “pending” in any state court. Section 1446(d)
requires notice to adverse parties and the state court from which the SAC was
removed:
“Promptly after the filing of such notice of removal of a civil action

the defendant or defendants shall give written notice thereof to all
adverse parties and shall file a copy of the notice with the clerk of
such State court, which shall effect the removal and the State court
shall proceed no further unless and until the case is remanded.”
Again, because the SAC was never filed in state court, §1446(d) is nullified
and rendered useless when given the construction Enterprise, Chase and the
District Court suggests.
Moreover, this Court, in Harris, disapproved of any construction of the
removal statutes that would cause defendants to “be encouraged to engage in

13
premature removals in order to ensure that they do not waive their right to
removal” which in turn “may lead to the imposition of Rule 11 sanctions.” Harris,
425 F.3d 689 at 697.
The Harris Court concluded its analysis by being mindful “of the canon that
instructs that removal statutes should be construed narrowly in favor of remand to
protect the jurisdiction of state courts” and that:
“Our interpretation of 28 U.S.C. § 1446(b) is consistent with the goal

of the canon, which guards against premature and protective removals
and minimizes the potential for a cottage industry of removal
litigation. By assuring that removal occurs once the jurisdictional facts
supporting removal are evident, we also ensure respect for the
jurisdiction of state courts.” Harris, 425 F.3d 689 at 698.
The Harris Court’s narrow construction of the removal statutes maintains
harmony with the Federal Rules of Civil Procedure (FRCP). For example, under
Rule 3, “[a] civil action is commenced by filing a complaint with the court.”
Enterprise, Chase and the District Court are claiming the exact opposite.
Under Rule 15(c), “[a]n amendment to a pleading relates back to the date of
the original pleading” when filed as specified by this Rule. Once again, Enterprise,
Chase and the District Court are claiming that an unfiled amended complaint is
capable of relating back to the original pleading and can be considered to comply
with a Court order directing the filing of an amended complaint within a specified
time as long as a copy of the unfiled pleading is “received” by Enterprise or Chase.

14
Washington’s Superior Court Rules (CR) are nearly identical to the federal
civil rules. Tegland, in his Washington Practice Series, has explained that when a
defendant is served with an unfiled summons and complaint, Washington’s CR 3
does not mandate that the defendant take any action:
“If the plaintiff serves first without filing, and the defendant wants the
action formally commenced, the defendant may serve upon the
plaintiff a written demand that the action be filed. If the plaintiff fails
to file within 14 days after receiving the demand, service upon the
defendant is deemed void. CR 3. Even if the defendant does not
demand that the plaintiff file the action (the more typical situation),
the plaintiff must file it within 90 days, or the action is treated as if it
was never commenced for purposes of the statute of limitations.”
***
Practice Tip: Occasionally the plaintiff will serve first, and the
defendant will ask that the action not be filed—typically to allow time
to settle, or to avoid the publicity of litigation. In this situation, the
plaintiff must be careful not to let the statute of limitations expire, so
that the action can still be commenced if negotiations fail to yield a
settlement.
If the defendant asks that the action not be filed, and if the plaintiff is
agreeable (at least in the short term), the plaintiff should insist upon a
written agreement in which the defendant stipulates that the statute of
limitations was tolled upon service, and waives any defense based
upon the statute of limitations. 3A Karl B. Tegland, Washington
Practice Series: Rules Practice, at 39 (2013). See also: 14 Karl B.
Tegland, Washington Practice Series: Civil Procedure §§ 7:1-7:3 at
213-215 (2009) (“Although the action is deemed commenced upon
the occurrence of either service or filing, the action is said to be only
tentatively commenced until both steps are taken….”)
Tegland identifies precisely the factual situation existing at the time when
Chase received a copy of the unfiled SAC from Enterprise’s attorneys. Borisov,
15
Enterprise and Chase were engaged in settlement negotiations which had reached
an impasse because Chase and Enterprise steadfastly refused to absolve Borisov of
liability for the rental vehicle even after Borisov made a physical appearance in
Chase’s branch office in Vancouver, Washington while the rental vehicle
continued to incur credit card billing from Enterprise and Chase and toll road
charges from the States of Virginia, Maryland, Delaware, New Jersey, New York
and Massachusetts. See SAC paragraphs 22-49, ER-36 to 44.
This impasse prompted Borisov to take formal steps to protect his identity
from further harm and file police reports with the Federal Bureau of Investigation
and the States of Washington, Virginia, Maryland, Delaware, New Jersey, New
York and Massachusetts. See SAC paragraph 64, ER-50.
In response to Borisov’s Notice of Impasse, ER-67, Enterprise and Chase
filed a “Joint Status Report” (JSR), ER-90, wherein they claimed Borisov had
expressed an “unwillingness to participate in the FRCP 26(f) Conference.” ER-91.
Enterprise and Chase further claimed in their JSR that Borisov’s “claims are
relatively complex, as are the scope and extent of Plaintiff’s alleged damages,”
paragraph 1, ER-91 and that it was necessary to engage in discovery before
possible resolution of Borisov’s claims and “before alternative dispute resolution
can be considered.” See paragraphs 5(a) and (b), ER-92.

16
The JSR filed by Enterprise and Chase is contrary to the communications
between the parties, Borisov’s Notice of Impasse, the FRCP and 28 U.S.C. §§
1441 et seq.
Removal was knowingly premature and fraudulent. Enterprise and Chase
admitted prematurity and fraud when claiming in their Notice of Removal that:
“Pursuant to Local Rules W.D. Wash. LCR 101(b)(1), a true and

correct copy of the second amended complaint (the “Complaint”) in
the State Court action is attached hereto.
***
“6. Pleadings and Process. True and correct copies of docket entries
one through five on file in the State Court Action, including a current
docket sheet, are attached to the Declaration of James Zack in Support
of Notice of Removal to Federal Court (“Zack Decl.”) as Exhibit A….
Pursuant to LCR 101, a true and correct copy of the operative
Complaint in the State Court action is attached hereto.” ER-28.
Local Rule 101 governs the procedures for “Removed Cases”. The face of
LCR 101 clearly requires the removed action to have first been “filed in state
court.” LCR 101(a).
Subdivision (b) of LCR 101, in part, requires that “[i]n cases removed from
state court, the removing defendant(s) shall file contemporaneously with the notice
of removal (1) A copy of the operative complaint….” (Emphasis added.) The SAC
was not filed in the state court and was thus incapable of being considered, as a
matter of law, the “operative complaint”, on file in and removed from, the state
court.
17
Enterprise, SNORAC, Chase and James Zack in his Declaration in “Support
of Notice of Removal to Federal Court” untruthfully represented to the District
Court that the SAC was “a true and correct copy of the operative Complaint in the
State Court action” and that LCR 101 was complied with. Thus, these litigants
demonstrated a complete lack of candor before the District Court, who in turn,
rewarded them with dismissal in their favor rather than Rule 11 sanctions.
Properly understood, Enterprise, SNORAC, Chase and James Zack engaged
in an alleged unlawful scheme contrary to FRCP 11 to obtain from the District
Court an “advisory opinion”, which is subject to the “constitutional ban” identified
by this Court in Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004) and Earth
Island Institute v. Ruthenbeck, 490 F. 3d 687, 694 (9th Cir. 2007) (“Courts must
refrain from deciding abstract or hypothetical controversies and from rendering
impermissible advisory opinions with respect to such controversies. A federal court
has neither the power to render advisory opinions nor to decide questions that
cannot affect the rights of litigants in the case before them.”)
The simple fact that the SAC did not come from a state court and cannot be
remanded back to any state court reduces the entire Judgment below to merely an
“advisory opinion” absolutely banned by Article III of the U.S. Constitution and as
“dictum”, being “unnecessary to the court’s holding”. See, Association of Mexican-
American Educators v. California, 231 F.3d 572, 590 (9th Cir. 2000) (en banc)
18
(declining to address the plaintiffs’ Title VI claim because anything written about
the Title VI claim would constitute “an advisory opinion”).
This Court’s review of the Judgment below must not end with the District
Court’s misguided interpretations of the removal statutes. Two glaring additional
errors of federal constitutional dimension involving statutory interpretations were
made by the District Court that are capable of being repeated.
We live contractual lives. It was undisputed below, and Enterprise admitted
in paragraphs 2, 4, 5 and 6, respectively, of its first “Amended Answer” to the
FAC, that Enterprise and Borisov had a “one-day rental” contract between them
and that:
“Enterprise is without knowledge or information sufficient to form a

belief as to the whereabouts of the rental vehicle between July 22,
2017 and August 10, 2017.”
“Enterprise regained custody of the rental vehicle on August 10,
2017.”
“Enterprise admits that Plaintiff incurred charges for the additional
rental period at the standard rate, bringing the total charges to
$3,857.44.” ER-86.
Notwithstanding these admissions, the District Court held that the billing of
Borisov by Enterprise and Chase for $3,857.44, for a one-day rental contract did
not violate RCW 19.86 and the FCBA, notwithstanding Enterprise’s admissions
that the agency did not investigate Borisov’s complaints and was therefore unable
to place Borisov behind the wheel of the rental vehicle on the East Coast at the
19
same time Borisov was standing in Chase’s branch office in Vancouver,
Washington.
Thus, the District Court’s interpretations of these statutes raise numerous
additional constitutional questions. For example, the Washington Supreme Court
had previously held in State v. Reader’s Digest Ass’n, 81 Wn.2d 259, 501 P.2d 290
(1972), that RCW 19.86 prohibits unfair and deceptive practices of out-of-state
entities against Washington State residents.
In Thornell v. Seattle Service Bureau, Inc., 184 Wash.2d 793, 363 P. 3d 587
(2015), the State Supreme Court extended that logic by holding the inverse—that
RCW 19.86 prohibits unfair and deceptive practices by in-state entities against out-
of-state residents: “A broad reading of the CPA is also consistent with our
established recognition that the CPA's reach extends beyond Washington's
boundaries.” Thornell, 184 Wash.2d at 801.
Thornell thus held that its “statutory interpretation” would govern the
conduct of Chase and Enterprise involving billing Borisov for goods and services
not received after July 22, 2017 and after his return to Vancouver, Washington.
The District Court’s interpretation to the contrary would nullify the statutory
interpretations of Washington’s highest Court and federal jurisprudence regarding
contracts, choice of laws, agency, and federalism concerns.

20
The District Court essentially ruled that Washington’s unfair competition
law cannot be used to address the contracts between Borisov and Chase and
Borisov and Enterprise. This holding is contrary to the Federal Constitution’s
Contracts Clause and the Supreme Court’s ruling in Sveen et al v. Melin, 138 S. Ct.
1815, 201 L. Ed 2d 180, 584 U.S. ____, 86 USLW 48392 (2018), which cited this
Court’s Contract Clause interpretation in Lazar v. Kroncke, 862 F. 3d 1186, 1199-
1200 (CA9, 2017).
In Sveen, the Supreme Court addressed the Constitution’s Contracts Clause
for the first time in 25 years. By a vote of 8-1, the Court held that the retroactive
application of Minnesota’s revocation-on-divorce statute, which automatically
nullifies an ex-spouse’s beneficiary designation on a life insurance policy or other
will substitute, does not violate the Contracts Clause.
Justice Neil Gorsuch was the Court’s lone dissenter. He argued that, among
other things, “the Constitution does not speak of ‘substantial’ impairments—it bars
‘any’ impairment.”
Under its Article I powers, Congress could also enact laws designed to reach
Chase and Enterprise contracts. The FCBA is such a law. When enacting of 15
U.S.C. § 1666(a)(3)(B)(ii), Congress specifically prohibited Chase from billing
consumers for goods not received under 15 U.S.C. § 1666(a)(3)(B)(ii):

21
“In the case of a billing error where the obligor alleges that the
creditor’s billing statement reflects goods not delivered to the obligor
or his designee in accordance with the agreement made at the time of
the transaction, a creditor may not construe such amount to be
correctly shown unless he determines that such goods were actually
delivered, mailed, or otherwise sent to the obligor and provides the
obligor with a statement of such determination.”
Without citing any case law, the District Court ruled that Chase was not
required to investigate to determine if Borisov remained in possession of the rental
vehicle after he returned it on July 22, 2017 as required under 15 U.S.C. §
1666(a)(3)(B)(ii). In an obvious twist to this statute, the District Court held:
“If the credit card issuer’s investigation causes it to believe that there
was no error, the credit card issuer must send a written explanation to
the credit card holder setting forth the reasons why “the [credit card
issuer] believes” that the charge is valid. 15 U.S.C. §
1666(a)(3)(B)(ii).
In this case, Chase argues that Borisov fails to allege any failure to
comply with the procedural requirements of § 1666. Borisov fails to
address this argument and instead concentrates on Chase’s failure to
determine the validity of the credit card charges. Dkt. 22 at 3–5. In
other words, Borisov asserts that Chase must investigate whether
Borisov actually returned the vehicle to its proper location on the day
it was due. Nothing in the FCBA requires Chase to engage in such an
intensive investigation or even contest Snorac’s documents asserting
that the vehicle was not returned on time. Instead, the FCBA requires
Chase to investigate the charge and then inform Borisov why it
“believes” the subject charge is valid. 15 U.S.C. § 1666(a)(3)(B)(ii).
Chase complied with these procedures on two separate occasions as
evidenced by the documents embedded in Borisov’s complaint. Thus,
Borisov fails to state sufficient facts to support a violation of the
FCBA, and the Court grants Chase’s motion on these claims.” ER-19.
22
This District Court ruling is absolutely inconsistent with the face of 15
U.S.C. § 1666(a)(3)(B)(ii) which plainly states: “a creditor may not construe such
amount to be correctly shown unless he determines that such goods were actually
delivered, mailed, or otherwise sent to the obligor and provides the obligor with a
statement of such determination.” (Emphasis added.)
Merriam Webster defines the adverb “actually” as: “in act or in fact”.
Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed. defines the term
“fact” as:
“A thing done; an action performed or an incident transpiring; an

event or circumstance; an actual occurrence…. A fact is either a state
of things, that is, an existence, or a motion, that is, an event…. In the
law of evidence. A circumstance, event or occurrence as it actually
takes or took place; a physical object or appearance, as it actually
exists or existed. An actual and absolute reality, as distinguished from
mere supposition or opinion; a truth, as distinguished from fiction or
error…. The word is much used in phrases which contrast it with law.
Law is a principle; fact is an event Law is conceived; fact is actual.
Law is a rule of duty; fact is that which has been according to or in
contravention of the rule…. The fact that it exists, if important to the
rights of parties, must be alleged and proved…. A fact in pleading is a
circumstance, act, event, or incident; a truth is the legal principle
which declares or governs the facts and their operative effect.
Admitting the facts stated in a complaint the truth may be that the
plaintiff is not entitled, upon the face of his complaint to what he
claims. The mode in which a defendant sets up that truth for his
protection is a demurrer.” (Citations omitted.)
Chase and Enterprise did not put any facts before the District Court tending
to demonstrate Borisov “actually” received a rental car from Alamo after July 22,
23
2017 or was driving an Alamo rental car in New York while he was also standing
in Chase’s branch office in Vancouver, Washington.
The District Court further held that the multiple charges to Borisov’s credit
card account by Enterprise and Chase for goods and services not received after
July 22, 2017 did not violate the FCBA. This interpretation is also contrary to the
face of the FCBA and this Court’s statutory interpretations and analysis set forth in
Lyon v. Chase Bank USA, N.A., 656 F.3d 877 (9th Cir. 2011).
Borisov alleged that on “18 separate occasions”, Chase, at the behest of
Enterprise, violated the FCBA. Chase’s Attorney James Zack admitted in his
Declaration that the Enterprise Defendants “provided information showing that
each charge was a unique sale.” See Borisov’s Motion for Reconsideration, ER-72.
In Lyon, Chase was found liable for multiple violations of the FBCA under
similar facts. This Court found “the FCBA requires a credit-card issuer
to…investigate the matter,” among other things, citing Am. Express Co. v.
Koerner, 452 U.S. 233, 234-37 (1981). Lyon, 656 F.3d at 880.
This Court held that “Congress’s clear intent in adopting the FCBA was to
prevent a creditor from simply ignoring a billing dispute when attempting to
collect a debt… [and that] [t]he ultimate validity of a disputed charge does not
relieve a creditor of the obligations and restrictions imposed under the FCBA.”
Lyon, 656 F.3d at 885.

24
This Court further held that: “Pursuant to 15 U.S.C. § 1640(a)(2), a creditor
who fails to comply with “any requirement imposed” under the TILA, the FCBA,
or the Consumer Leasing Act is liable for an award of statutory damages.” Lyon,
656 F.3d at 888. The District Court obviously disagrees with Lyon.
Chase’s claims that the charges it placed on Borisov’s credit card account
were “valid” are therefore even more outrageous and untruthful. This is so because
it is impossible for Chase to conduct any truthful investigation required by 15
U.S.C. § 1666(a)(3)(B)(ii), Lyon and Am. Express Co. v. Koerner, 452 U.S. 233,
234-37 (1981) which would place Borisov behind the wheel of a rental vehicle on
the East Coast while at the same time Borisov was standing in Chase’s Branch
office in Vancouver, Washington.
It is this disgraceful and untruthful conduct on behalf of Chase and
Enterprise and their attorneys that led to an impasse in the settlement negotiations
between Borisov, Chase and Enterprise.
When coupled with Enterprise’s Amended Answer to the FAC, Chase’s
representation that its investigation found the charges “valid” would be both
fraudulent and untruthful and subject to Rule 11 sanctions, rather than dismissal in
favor of Chase and Enterprise.
The District Court’s dismissal of the SAC also dismissed the twenty Doe
Defendants This dismissal would be contrary to this Court’s holding in Gillespie v.

25
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), cited with approval by Newdow v.
Roberts, 603 F.3d 1002, 1010-11 (D.C. Cir. 2010) (Plaintiff should be given an
opportunity through discovery to identify the unknown defendants.). See also,
Saffron v. Wilson, 70 F.R.D. 51, 56 (D.D.C. 1975) (refusing to dismiss John Doe
defendants because plaintiff had not had an opportunity to engage in discovery).
On this appeal, the District Court’s federal jurisdiction was constrained by
Article III’s ban on issuing an “advisory opinion” and the removal statutes which
requires a complaint to have been filed first in the state court before it can be
removed from a state court to a federal court.
CONCLUSION
In the United States, it is impermissible for a Defendant to commence a
lawsuit against a Plaintiff. Borisov seeks an Order directing the District Court to
dismiss the SAC as premature; Costs on appeal and sanctions by this Court or an
order directing the District Court to consider sanctions against the removing
litigants.
Date: June 30, 2019
s/Oleg Anatolyevich Borisov

Vancouver, WA 98662
(503) 997-3567
borisov84@yahoo.com
26
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 5,850 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionately spaced typeface using Microsoft Word
and Times New Roman 14-point font.
Date: June 30, 2019

Vancouver, WA 98662
(503) 997-3567
borisov84@yahoo.com
27
CERTIFICATE OF SERVICE
I hereby certify that on June 30, 2019, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
All participants in the case are registered CM/ECF users and are served by
the appellate CM/ECF system.
Date: June 30, 2019

Vancouver, WA 98662
(503) 997-3567
borisov84@yahoo.com

Credit Card Billing Fraud Appellant&#39;s Opening Brief

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Case: 19-35372, 06/30/2019, ID: 11349629, DktEntry: 3, Page 1 of 35

IN THE UNITED STATES COURT OF APPEALS

ALAMO RENT A CAR, et al.,

On Appeal from the United States District Court

APPELLANT’S OPENING BRIEF

Oleg Anatolyevich Borisov

TABLE OF AUTHORITIES ................................................................................. iiiii

JURISDICTIONAL STATEMENT ..........................................................................1

ISSUE PRESENTED .................................................................................................1

STATEMENT OF THE CASE ..................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................4

A. Standard of Review .....................................................................................5

B. The District Court’s Exercise of Removal Jurisdiction Over A Second

STATEMENT OF RELATED CASES

Association of Mexican-American Educators v. California

Axiom Foods, Inc. v. Acerchem Int’l, Inc.

Bank of the United States v. Planters’ Bank of Georgia

Beeman v. TDI Managed Care Svcs.

Bishop Paiute Tribe v. Inyo Cty.

Brotherhood of Locomotive Firemen & Enginemen v. NLRB

Casey v. Albertson’s Inc.

Chang v. United States

Dolan v. United States

Dougherty v. City of Covina

Earth Island Institute v. Ruthenbeck

Forest Grove School Dist. v. T.A.

Harris v. Bankers Life & Cas. Co.

Koon v. United States

Lyon v. Chase Bank USA, N.A.

Los Angeles Lakers, Inc. v. Fed. Ins. Co.

Mansfield, C. & L.M.R. Co. v. Swan

McDonald v. Sun Oil Co.

Nev. ex rel. DOT v. United States

Osborn v. Bank of the United States

Peterson v. Highland Music, Inc.

Prather v. AT&T, Inc.

Providence Health Plan v. McDowell

Richard S. v. Dep’t of Dev. Servs.

State v. Reader’s Digest Ass’n

Steel Co. v. Citizens for a Better Env’t

Strauss v. Comm’r of the Soc. Sec. Admin.

Thornell v. Seattle Service Bureau, Inc.

United States v. Beltran-Gutierrez

United States v. Katz

United States v. Kelly

United States v. Saunders

Article I, §10, Clause 1 …………………………………………………………...18

Article III, § 2………………………………………………………………………2

Article III, § 2, Clause 1……………………………………………………………5

15 U.S.C. §§ 1601 et seq.…………………………………………………………17

Chapter 89, 28 U.S. Code…………………………………………………………..6

28 U.S.C. §§ 1441 et seq. ……………………………………………….2, 7, 10, 14

Federal Rules of Civil Procedure

LCR 101(a). ………………………………………………………………………15

Revised Code of Washington (RCW)

Washington State Superior Court Civil Rules (CR)

3A Karl B. Tegland, Washington Practice Series:

14 Karl B. Tegland, Washington Practice Series:

This appeal presents for review a determination whether a District Court

acquires jurisdiction, constitutional, statutory or otherwise, over a Second

hypothesized claims arising under federal law in an unfiled SAC.

Record (“ER”)-9 and 10.

On January 27, 2019, Borisov filed a timely Motion for Reconsideration,

ER-69, which was denied on April 1, 2019, ER-23.

Credit Card Billing Fraud Appellant's Opening Brief

Credit Card Billing Fraud Appellant's Opening Brief