Case 2:09-cv-00782-PMP-RJJ Document 10

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THOMAS CHRISTENSEN, ESQ. Nevada Bar # 2326 CHRISTENSEN LAW OFFICES, L.L.C. 1000 S. Valley View Blvd. Las Vegas, Nevada 89107 Attorney for Plaintiff, IT MACHINES, L.L.C., d/b/a SINGLEPOINT NETWORKS, individually, and on behalf of all similarly situated Class Members

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

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IT MACHINES, L.L.C., individually and on behalf of all similarly situated Class Members

) ) ) ) Plaintiff, ) vs. ) ) ) MASTERFILE CORPORATION, a ) corporation; NCS RECOVERY ) CORPORATION, a full service collection ) agency; PHUSION 25; and DOES 1 ) through 100, inclusive, ) ) Defendants. ) ____________________________________)

CASE NO. 2:09-cv-782-PMP-RJJ PLAINTIFF'S MOTION FOR REMAND

JURY DEMANDED

COMES NOW the Plaintiff, IT MACHINES, LLC ("Plaintiff"), by and through their attorney THOMAS CHRISTENSEN, ESQ, hereby respond to the notice of removal of action pursuant to 28 USC 1331 and 15 USC 1692 et seq. by Defendant Masterfile Corporation

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("Masterfile") with this motion for remand. 1. On May 1, 2009 Masterfile filed a Notice of Removal in regards to Eighth Judicial District Court of Clark County Nevada Case A586796. The Notice of Removal was pursuant to 28 USC 1331 and 15 USC 1692.

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2. Masterfile claims removal jurisdiction exists because of federal question, 15 USC 1692 ("FDCPA") because of language quoted in the complaint from the act. 3. Nowhere in the complaint is the act cited as the basis for the claims made in the

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complaint. 4. The mere quoting of language from an act does not indicate the party is suing under the act. Making fraudulent representations in a business context gives rise to state claims irrespective of whether those same acts are prohibited under any federal law. 5. The FDCPA is not the basis of the prosecution against Masterfile, or any of the other

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defendants which were included in the Complaint filed on March 31, 2009. 6. State common law principles of good faith and fair dealing, fair business practices, and fraud are the basis for the claims made. 7. Pursuant to USC 15 1692(a), which defines "consumer" and "debt" as follows:

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The term consumer means any natural person obligated or allegedly obligated to pay any debt. The term debt means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the

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transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. 8. Plaintiff's alleged debts to Masterfile do not meet the requirements set forth in the FDCPA, and therefore Plaintiff's prosecution rests on state law theories of fraud, breach of the implied covenant of good faith and fair dealings, and deceptive trade practices.

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9. This case, thus having no federal question, does not meet the requirements for removal as set forth in 28 USC 1331. 10. Plaintiff's Motion for Remand has been filed within (30) days of Masterfile's Notice of

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Removal. Therefore, this Motion is timely. 11. IT Machines has incurred attorneys fees and costs in conjunction with the filing of this Motion for Remand. If Plaintiff's Motion for Remand is granted, it is respectfully requested this Court enter an Order requiring Masterfile to pay just costs and any actual expenses including attorneys fees incurred as a result of the removal. See 28

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U.S.C. 1447(c). Wherefore, the Plaintiff respectfully requests this Court to: 1. Remand this case back to the Eighth Judicial Court of Clark County, Nevada; 2. Award IT Machines reasonable attorney's fees and costs incurred in conjunction with

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the preparation of this Motion for Remand; and 3. Grant any other relief this Court deems just and proper.

DATED this 29 day of May, 2009.

CHRISTENSEN LAW OFFICES, LLC

By:_/ss/_Thomas Christensen_______ THOMAS CHRISTENSEN, ESQ. Nevada Bar # 2326 1000 S. Valley View Blvd. Las Vegas, Nevada 89107 Attorneys for Plaintiff, IT MACHINES, L.L.C. and all similarly situated class members