491 F.Supp. 53 (1980)
Peggy HERNDON, Individually and as Trustee for Carla J. Herndon, Plaintiff,
v.
Clarence HERNDON, Beverly Herndon Scott and Massachusetts Mutual Life Insurance Company, and First National Bank of San Angelo, Defendants.
Civ. A. No. SA79CA144.
United States District Court, W. D. Texas, San Antonio Division.
June 9, 1980.
*54 Daniel R. Rutherford, San Antonio, Tex., for plaintiff.
Alex F. Sears, San Angelo, Tex., Edward R. Finck, Jr., San Antonio, Tex., for defendants.
Goodwin & Berry, San Angelo, Tex., Barry Snell, San Antonio, Tex., for third-party defendant, First City Nat. Bank of San Angelo.

MEMORANDUM OPINION DENYING MOTION TO DISMISS
SPEARS, District Judge.
On this day came on to be considered the Motion to Dismiss filed by First City National Bank ("Bank") in the above entitled and numbered cause and the responses filed thereto. The Bank asserts that it is a national banking association with its principal office and place of business in San Angelo, Texas, within the Northern District of Texas, and that, pursuant to 12 U.S.C. § 94, venue is mandatory in the district in which the Bank is established.
This section states that actions or proceedings against a national bank
may be had in any district or Territorial court of the United States held within the district in which such association (bank) may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.
Prior to a determination of this issue, an examination of the relationship of the parties of this suit is required. Defendant Massachusetts Mutual Life Insurance Company ("Company") issued a policy on the life of Bobby Herndon, now deceased, in 1974. Following the death of Mr. Herndon, there were rival claimants to the proceeds of the policy, resulting in a suit being filed in state court by one of the claimants, Peggy Herndon, against other claimants and the defendant Company for failure to pay the proceeds of the policy to the plaintiff. In April, 1979, the Company removed the case to the Federal Courts under the provisions of 28 U.S.C. § 1441(a) and then filed a Counterclaim and Cross-Action against the rival claimants to the proceeds, pursuant to the Interpleader Statute, 28 U.S.C. § 1335. The rival claimants subsequently agreed to compromise and settle the case and an agreed judgment was submitted to the Court. This agreed judgment, however, was quickly withdrawn when the parties were suddenly notified of the Bank's claim upon a portion of the proceeds of the policy as a creditor of the estate of Bobby Herndon. The Bank was joined as a party to the lawsuit, and the Company was granted leave to file an amended counterclaim and cross-action, adding the Bank as a third party defendant. Having now become a party to the lawsuit, the Bank has filed the Motion to Dismiss presently before the Court.
Although 12 U.S.C. § 94 is written with permissive language, its provisions have been held to be mandatory when the bank is a defendant. Radzanower v. *55 Touche Ross & Company, 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). A conflict arises, however, when the bank is a third party defendant rather than a defendant. Under Rule 14 of the Federal Rules of Civil Procedure, it is well settled that defendant's claim against a third-party defendant is within the ancillary jurisdiction of the federal courts, and thus, there is no need for independent subject matter jurisdiction of the third-party claim. James Talcott, Inc. v. Allahabad Bank, Limited, 444 F.2d 451, (5th Cir.), cert. denied sub nom. City Trade and Industries, Limited v. Allahabad Bank, Limited, 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1971); Hospes v. Burmite Div. of Whittaker Corp., 420 F.Supp. 806 (S.D.Miss.1976).
This Court has carefully considered the decision in Swiss Israel Trade Bank v. Mobley, 319 F.Supp. 375 (S.D.Ga.1970), but expressly rejects its holding to the effect the rulemaking power which supports Rule 14 could not have overridden the Congressional enactment of the statute, 12 U.S.C. § 94. This circuit has long held that Rule 14 overrides the general venue statute, 28 U.S.C. § 1391, and that an impleaded third-party defendant may not raise the venue issue. Lone Star Package Car Co. v. Baltimore & O. R. Co., 212 F.2d 147 (5th Cir. 1954). Under the circumstances, this Court believes the better reasoning to be that since a third party defendant may not raise the venue issue, 12 U.S.C. § 94 does not create a venue right to be asserted by the third party defendant bank. See Jones v. Kreminski, 404 F.Supp. 667 (D.Conn.1975), Odette v. Shearson, Hammill and Co., Inc., 394 F.Supp. 946 (S.D.N.Y.1975). To hold otherwise would allow the tail to wag the dog.
Accordingly, the motion of First City National Bank of San Angelo to dismiss the cause should be, and the same is hereby, DENIED.


                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 12a0257p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________

                                                X
                         Plaintiffs-Appellees, -
 BRET A. LEWIS and REBECCA J. LEWIS,
                                                 -
                                                 -
                                                 -
                                                     No. 11-3044
           v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 UNITED JOINT VENTURE,
                                                 -
                                                N
                  Appeal from the United States District Court
                for the Northern District of Ohio at Youngstown.
                No. 4:10-MC-61—James S. Gwin, District Judge.
                           Decided and Filed: August 9, 2012
            Before: GUY and CLAY, Circuit Judges; HOOD, District Judge.*

                                    _________________

                                         COUNSEL
ON BRIEF: Victor O. Buente, Jr., Newton Falls, Ohio, for Appellant. S. Thomas
Wienner, WIENNER & GOULD, P.C., Rochester, Michigan, for Appellees.

                                    _________________

                                         OPINION
                                    _________________

        CLAY, Circuit Judge. Defendant United Joint Venture appeals an order entered
pursuant to motions for orders of garnishment filed by Plaintiffs Bret and Rebecca Lewis
(“the Lewises”). The Lewises obtained a judgment in the Western District of Michigan
and sought to enforce it in the Northern District of Ohio pursuant to 28 U.S.C. § 1963.
The court rejected Defendant’s request to set off judgments obtained by the Lewises and
two other individuals with judgments obtained by Defendant. Because the district court

        *
        The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.

                                               1
No. 11-3044            Lewis, et al. v. United Joint Venture                                      Page 2

did not abuse its discretion in declining the setoff, we AFFIRM the district court’s
judgment.

                                  FACTUAL BACKGROUND

         The Lewises, along with Howard D. Ross and J. Bruce Jennings (“the Michigan
Plaintiffs”), were limited personal guarantors of loan obligations owed by River City
Plastics, Inc.1 River City Plastics, Inc. filed for bankruptcy in 2005. In 2006, Defendant
acquired the original lender’s position on the Michigan Plaintiffs’ guaranty obligations.
Defendant then reported to various credit reporting agencies that the Lewises, Ross, and
Jennings were obligated in the full amount of the underlying loans rather than in the
limited amount of their personal guarantees. In a complaint filed in the Western District
of Michigan, the Lewises, Ross, and Jennings alleged that these reports violated the Fair
Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681–1681x.2 Defendant counterclaimed
against each plaintiff in the amount each owed on the guaranty agreements.

         After a trial, the jury returned a verdict in favor of both parties, finding Defendant
liable to each plaintiff for violating the FCRA and finding the Michigan Plaintiffs in
breach of their respective guaranty agreements. On August 7, 2009, the district court
entered a judgment making Defendant liable to Bret Lewis for $30,000 in actual
damages and $120,000 in punitive damages, and liable to each remaining plaintiff for
$25,000 in actual damages and $100,000 in punitive damages. The court also jointly
awarded the Michigan Plaintiffs $20,024.55 in costs and $218,674.00 in attorney’s fees,
as permitted by the FCRA. See 15 U.S.C. § 1681n(a)(3). With regard to the breach of
guaranty claims, the court found Bret and Rebecca Lewis jointly liable for $256,797.29
in actual damages, Jennings liable for $255,367.29 in actual damages, and Ross liable

         1
           As we explain below, the Lewises, Ross, and Jennings were the plaintiffs in the Michigan case,
but the Lewises alone were the plaintiffs in the Ohio enforcement action. For the sake of clarity, we refer
to the plaintiffs in the Michigan case as “the Michigan Plaintiffs.”
         2
           The FCRA “require[s] that consumer reporting agencies adopt reasonable procedures” for
reporting the credit worthiness of consumers. 15 U.S.C. § 1681(b). The statute provides a private right
of action against an agency that fails to comply with the FCRA’s reporting requirements, allowing an
aggrieved consumer to recover actual damages, punitive damages if warranted, and attorney’s fees.
15 U.S.C. §§ 1681n, 1681o.
No. 11-3044         Lewis, et al. v. United Joint Venture                             Page 3

for $306,726.14 in actual damages. The Michigan court’s judgment made the Lewises
net judgment creditors and Ross and Jennings net judgment debtors, leaving aside the
award of attorney’s fees and costs.

        The Lewises then enforced the judgment in the Northern District of Ohio, the
district in which Defendant’s main office is located. See 28 U.S.C. § 1963 (permitting
the registration of a district court’s judgment in any other federal district court). Shortly
thereafter, the Lewises filed five garnishment motions and a request for a writ of
execution, in which they sought to collect the attorney’s fees and costs awarded in the
Michigan judgment.

        Defendant objected to the Lewises’ garnishment motions, arguing that
Defendant, rather than the Lewises, was the net judgment creditor. Specifically,
Defendant argued that the proper method of calculating the parties’ obligations required
the court to: first, add up the amount Defendant owed the Lewises, Jennings, and Ross
collectively (including the attorney’s fees and costs award); second, add up the amount
the Lewises, Jennings, and Ross collectively owed Defendant; and third, set off the
former sum from the latter sum. Under this formula, Defendant would be the judgment
creditor against the Michigan Plaintiffs collectively in the amount of $55,192.17. In
effect, Defendant’s proposed formula would use their judgment credits against Jennings
and Ross to set off both their judgment debt to the Lewises and the award of attorney’s
fees and costs they owed to the Michigan Plaintiffs.

        The Ohio district court denied Defendant’s objections to the garnishments.
Relying on the August 7, 2009 order from the Western District of Michigan, the court
concluded that the Lewises could recover the award of attorney’s fees and costs and
rejected Defendant’s proposed formula. As the district court explained, the Lewises
were entitled to collect the award of attorney’s fees and costs in its entirety, because that
award was the Michigan Plaintiffs’ joint property. The court further explained that the
contract and FCRA judgments were individual in nature. Reasoning that Defendant
could not credit the judgment debts owed by Ross and Jennings against the jointly owned
No. 11-3044        Lewis, et al. v. United Joint Venture                           Page 4

attorney’s fees and costs award, the court granted the Lewises’ motions. Defendant
timely appealed this order. The instant appeal arises from the Ohio court’s order.

       Four days after the entry of the Ohio court’s order, Defendant sought a writ of
execution against the Lewises, Jennings, and Ross in the Western District of Michigan.
Just as it had in the Northern District of Ohio, Defendant argued that the court should
aggregate the judgments awarded to all parties and offset them from one another. The
Lewises opposed this argument and asked the court to clarify whether the Lewises had
a right to recover the attorney’s fees and costs award. On February 24, 2011, the
Michigan court rejected Defendant’s argument, agreeing with the reasoning of the Ohio
district court. The court granted Defendant’s request for writs of execution but noted
that, if the Lewises exercised their right of setoff, they would become net judgment
creditors.

                                     DISCUSSION

I.     Legal Framework

       Federal Rule of Civil Procedure 69 allows a party to obtain enforcement remedies
against an opposing party. See Fed. R. Civ. P. 69. We review a district court’s
enforcement remedy issued pursuant to Rule 69 for abuse of discretion. See United
States v. Clayton, 613 F.3d 592, 595 (5th Cir. 2010); Laborers’ Pension Fund v. Dirty
Work Unlimited, Inc., 919 F.2d 491, 494 (7th Cir. 1990); see United States v. Conces,
507 F.3d 1028, 1040–41 (6th Cir. 2003). We will reverse for an abuse of discretion
where we are left with the “definite and firm conviction that the district court committed
a clear error of judgment in its conclusion.” In re Scrap Metal Litig., 527 F.3d 517, 528
(6th Cir. 2008) (internal quotation marks and citation omitted).

       Rule 69 requires an enforcing court to “accord with the procedure of the state
where the court is located” unless a federal statute provides an alternative procedure.
Fed. R. Civ. P. 69(a)(1); see Condaire, Inc. v. Allied Piping, Inc., 286 F.3d 353, 357–58
(6th Cir. 2002) (“[J]udgments registered pursuant to 28 U.S.C. § 1963 must be enforced
in accordance with the laws of the registering state.”). No federal statute governs the
No. 11-3044         Lewis, et al. v. United Joint Venture                            Page 5

means of enforcing a judgment pursuant to the FCRA; therefore, Ohio law governs the
enforcement procedures in this case.

        The right to setoff mutual debts exists as a remedy under Ohio law. In re
Kleather, 208 B.R. 406, 413 (S.D. Ohio 1997). A setoff “is that right which exists
between two parties, each of whom under an independent contract owes a definite
amount to the other, to setoff their respective debts by way of mutual deduction.”
Witham v. S. Side Bldg. & Loan Ass’n of Lima, Ohio, 15 N.E.2d 149, 150 (Ohio 1938);
see In re U.S. Aeroteam, Inc., 327 B.R. 852, 861 (S.D. Ohio 2005) (“Setoff is a doctrine
that allows entities who owe money to each other to cancel out or apply their mutual
debts against each other thereby avoiding the ‘absurdity of making A pay B when B
owes A.’” (quoting Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 18 (1995)). In Ohio,
the decision to grant a party’s request for a setoff lies within the discretion of the trial
court. Schumann v. Schumann, 944 N.E.2d 705, 836 (Ohio Ct. App. 2010).

II.     Analysis

        As we explained above, Defendant wanted the district court to set off the
collective judgments in favor of the Michigan Plaintiffs, along with the Michigan
Plaintiffs’ award of fees and costs, from the judgments in favor of Defendant. Under this
formula, Defendant would be a net judgment creditor in the amount of $55,192.17. The
district court did not abuse its discretion by declining to structure its judgment in the
manner Defendant would have preferred.

        The district court would likely have violated Ohio law by adopting Defendant’s
proposed formula, because the proposed formula calls for setting off non-mutual debts.
In order for a party to avail itself of a right of setoff, both parties must “owe mutual
debts” to one another. Covington v. Univ. Hosp. of Cleveland, 778 N.E. 2d 54, 57
(Ohio Ct. App. 2002). This requirement of “mutuality of obligation” means that “the
debts must be to and from the same persons and in the same capacity.” Schalmo Constr.,
Inc. v. A. Bonamese Contracting, No. 2009-CA-00037, 2009 WL 3004052, at *1 (Ohio
Ct. App. Sept. 21, 2009) (citing Nichols v. Metro. Life Ins. Co., 31 N.E.2d 224, 225
(Ohio 1941)); see Smaltz v. Nat’l City Bank, N.E., 736 N.E.2d 95, 99 (Ohio Ct. App.
No. 11-3044        Lewis, et al. v. United Joint Venture                           Page 6

2000) (“[M]utuality of obligation is essential to establishing a valid setoff.”). The Ohio
Court of Appeals has supplied a test to determine whether the purportedly offsetting
debts are “to and from the same person”: if the party seeking the setoff could file an
independent action to obtain a judgment on the debt owed to him by the opposing party,
then the parties are mutual and a setoff is permitted. Haefner v. First Nat’l Bank of
Elmwood Place, 36 N.E.2d 308, 310 (Ohio Ct. App. 1941). By contrast, if the party
seeking a setoff could not collect on the purportedly offsetting debt in an independent
proceeding, then the judgments cannot be setoff absent some special justification. Id.;
see Cohn v. Krauss, 67 N.E.2d 62, 68 (Ohio Ct. App. 1943).

       In this case, the mutuality requirement makes Defendant’s proposed formula
invalid under Ohio law. The FCRA judgments that Defendant owes the Michigan
Plaintiffs, and the breach of contract judgments the Michigan Plaintiffs owe Defendant,
are individual in nature. Defendant could not institute an independent proceeding to
obtain from the Lewises the judgments Jennings and Ross owe to Defendant. Defendant
seeks to do just that with its proposed formula. Defendant’s formula aggregates the
judgments Defendant obtained against each plaintiff individually and attempts to make
the Lewises partly accountable for the judgments against Jennings and Ross. In essence,
Defendant’s formula offsets its debt to the Lewises with the credits it holds against
Jennings and Ross. Making the Lewises accountable for the debts of Jennings and Ross
ignores the presumption requiring that debts involved in an offsetting judgment “be to
and from the same persons and in the same capacity.” Schalmo, 2009 WL 3004052, at
*1.

       Defendant attempts to hide this error by adding the attorney’s fees and costs
award to the sum of the judgments Defendant owes the Lewises, Ross, and Jennings.
Defendant argues that the fee award demonstrates that the Lewises, Jennings, and Ross
are parties “in reality mutual, although not so in form,” making the proposed setoff
proper. Wagner v. Stocking, 22 Ohio St. 297, 302 (Ohio 1872). This argument is
incorrect. The addition of that award merely adds window-dressing to Defendant’s
underlying formula, which violates the presumption against setting off non-mutual debts.
No. 11-3044         Lewis, et al. v. United Joint Venture                              Page 7

The Lewises, Jennings, and Ross individually obtained FCRA judgments against
Defendant; Defendant obtained breach of contract judgments against the Lewises,
Jennings, and Ross individually. Adding the jointly held attorney’s fees and costs award
does not change the individual nature of the underlying judgments.

        In fact, adding the award actually compounds the error of Defendant’s proposed
formula. A corollary to the mutuality requirement prohibits a court from setting off an
individual debt from a joint debt absent some special justification. Cohn, 67 N.E.2d at
68 (“The general rule . . . is that separate debts cannot be set off against joint debts
unless there is some special equity or equities to justify it.”) (citation omitted); see, e.g.,
FDIC v. Mademoiselle of Cal., 379 F.2d 660, 663 (9th Cir. 1967) (“[I]t is generally true
that a separate debt cannot be set off against a joint demand.”). By attempting to set off
a joint debt from an individual debt (or, in this case, three individual debts), Defendant’s
proposed formula violates this corollary.

        Defendant alternatively argues that the award of attorney’s fees and costs
constitutes a “special equity” permitting a setoff in this case. Id. A special equity may
permit a court to set off judgments against non-mutual parties. Cohn, 67 N.E.2d at 68.
For example, a court’s decision to pierce the corporate veil in order to hold a corporate
owner accountable for the debts of a corporate entity might justify setting off a joint debt
from an individual debt. See Ossco Prop., Ltd. v. United Commercial Prop. Group,
L.L.C., 968 N.E.2d 535, 540 (Ohio Ct. App. Dec. 29, 2011). According to Defendant,
the district court should not have treated the award of attorney’s fees and costs as subject
to collection by the Lewises alone. Rather, Defendant argues that the fee award was a
special equity making it more proper to adopt its proposed judgment formula aggregating
the judgments and the fee award.

        Defendant’s argument is unpersuasive.           The closest Defendant comes to
explaining why the attorney’s fees and costs award qualifies as a special equity
counseling in favor of a non-mutual setoff is Defendant’s insinuation that allowing the
Lewises to collect the entire award is somehow illegal or unfair. Defendant provides no
legal support for this proposition. Defendant cites no rule or doctrine that prohibits a
No. 11-3044         Lewis, et al. v. United Joint Venture                           Page 8

plaintiff from obtaining the full amount of an attorney’s fees and costs award jointly
owned by multiple plaintiffs. The Lewises are allowed to collect the entire award, but
Ross and Jennings are allowed to assert their right to a pro rata share of the award from
the Lewises. Thus, the attorney’s fees and costs award is not a special equity which
would have permitted Defendant to obtain a setoff of non-mutual obligations. And even
if the fee award might have qualified as a special equity, discretion regarding whether
to order the setoff lies with the district court. See Clayton, 613 F.3d at 595; Schumann,
944 N.E.2d at 836. The district court did not abuse its discretion by declining not to
aggregate and set off the judgments and attorney’s fees and costs award.

        Finally, Defendant argues that the Lewises failed to prove their entitlement to the
attorney’s fees and costs award because their affidavits in support “provide only the
dollar amounts due.” But the Lewises were only required to file a certified copy of the
Michigan judgment with the Ohio court to prove their entitlement to relief. See 28
U.S.C. § 1963. With respect to the specific question of the proposed setoff, the Lewises
were not burdened with demonstrating that a setoff judgment was inappropriate. Rather,
Defendant bore the burden of proving the appropriateness of such a judgment. Van Der
Veer v. Ohio Dep’t of Transp., 680 N.E.2d 230, 235 (Ohio 1996), overruled on other
grounds by McMullen v. Ohio State Univ. Hosp., No. 97API10-1301, 1998 WL 655023,
at *12 (Ohio Sept. 22, 1998). Defendant argues that it carried that burden by providing
detailed affidavits describing the various liabilities and their proposed setoff formula.
The argument that a party proves its entitlement to a setoff by a show of actuarial rigor
is decidedly unsupported under Ohio law. Defendant has failed to carry its burden of
proving its right to setoff.

                                    CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s judgment.


145 F.3d 1336
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Richard H. BLUM; Eva M. Blum, Plaintiffs-Appellants,v.STATE Farm Fire and Casualty Company; State Farm GeneralInsurance Company, Defendants-Appellees.
No. 96-16992.D.C. No. CV-96-00259-CAL.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 7, 1997.Decided May 19, 1998.

1
Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding.

2
Before WIGGINS and KLEINFELD, Circuit Judges and DWYER, District Judge.**

3
MEMORANDUM*

4
Richard and Eva Blum appeal the dismissal of their suit against State Farm Fire & Casualty Company and State Farm General Insurance Company (collectively "State Farm").  They sued State Farm for failure to defend the underlying suit brought against the Blums by purchasers of their property.  We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

5
The duty of an insurer to defend is broader than the duty to indemnify.  See Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 1081, 17 Cal.Rptr.2d 210, 846 P.2d 792 (1993); Gray v. Zurich Ins. Co., 65 Cal.2d 263, 276-77, 54 Cal.Rptr. 104, 419 P.2d 168 (1966).  The insurer has a duty to defend whenever there is any potential for liability within the scope of the insurance policy.  See Gray, 65 Cal.2d at 276-77, 54 Cal.Rptr. 104, 419 P.2d 168.  Where there is no possibility of coverage, however, there is no duty to defend.  See Miller v. Western Gen. Agency, Inc., 41 Cal.App.4th 1144, 1152, 49 Cal.Rptr.2d 55 (1996).

6
(a)

7
Appellants argue that their personal liability umbrella policies covered the claims against them in the underlying complaint.  The policies, however, limit coverage to liability resulting from a "loss," which was defined as an "accident."  Under California law, insurance coverage limited to liability from an accident does not extend to claims based on misrepresentations or a failure to disclose.  See Miller, 41 Cal.App.4th at 1149, 49 Cal.Rptr.2d 55.  Therefore, most of the claims against the Blums in the underlying complaint were not covered by the umbrella policies because they were based either on alleged misrepresentations or on failures to disclose.

8
The remaining two claims are titled "negligence" and "negligent infliction of emotional distress."  Despite their titles, they are both based squarely on the contract between the Blums and the underlying plaintiffs.  Specifically, the duty element in both claims could only arise from the contractual relationship.  California courts have definitively held that the language "legally obligated to pay damages" in an insurance contract limits coverage to tort liability only, prohibiting coverage of contract liability.  See, e.g., Fragomeno v. Insurance Co. of the West, 207 Cal.App.3d 822, 828, 255 Cal.Rptr. 111 (1989); Stanford Ranch, Inc. v. Maryland Cas. Co., 89 F.3d 618 (9th Cir.1996) (interpreting California law).  Under California law, a claim sounds in contract, not tort, when it is dependent on the existence of an underlying contract.  See Insurance Co. of the West v. Haralambos Beverage Co., 195 Cal.App.3d 1308, 241 Cal.Rptr. 427 (1987); Stanford Ranch, 89 F.3d at 625.  The "negligence" and "negligent infliction of emotional distress" claims were based on the underlying land sale contract; therefore, they sound in contract, not tort, and are not covered by the umbrella policies.

9
(b)

10
The Blums also argue that the homeowners insurance policies covered the underlying claims.  As previously discussed, most of the claims against the Blums were based on either misrepresentations or failure to disclose and, therefore, do not fall within the definition of "occurrence" as an "accident."  See Miller, 41 Cal.App.4th at 1149, 49 Cal.Rptr.2d 55.

11
Similarly, the claim for negligent infliction of emotional distress was not covered by the policy because that policy only covered damages for "bodily injury or property damage," the definition of which explicitly excluded emotional distress.

12
Appellants attempt to characterize the negligence claim as a "negligent construction" claim based in tort, not contract.  The technical legal title of a claim is not controlling; rather, the court must look at the underlying facts on which the claim is based.  See Wilmington Liquid Bulk Terminals, Inc. v. Somerset Marine Inc., 53 Cal.App.4th 186, 193-94, 61 Cal.Rptr.2d 727 (1997), rev. den.  May 21, 1997; Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1365 (9th Cir.1991); Chmura v. Allstate Ins. Co., 1997 WL 431093 (C.D.Cal.).

13
The "negligence" claim in the underlying complaint was based on the same facts as the other claims: a contractual duty to disclose, a failure to disclose, and misrepresentations.  Therefore, it was based on a breach of the contractual duty to disclose.  See Allstate Ins. Co. v. Hansten, 765 F.Supp. 614, 616 (N.D.Cal.1991) (reaching the same conclusion on identical facts).  Because an occurrence-based liability policy does not cover contract claims, the negligence claim was not covered by the homeowners policy.

14
In addition, the negligence claim was not a claim for damages "caused by an occurrence," because negligent misrepresentations are not "occurrences" within the meaning of insurance liability policies.  See Miller, 41 Cal.App.4th at 1150, 49 Cal.Rptr.2d 55; Chatton v. National Union Fire Ins. Co., 10 Cal.App.4th 846, 861, 13 Cal.Rptr.2d 318 (1992); Safeco Ins. Co. v. Andrews, 915 F.2d 500, 502 (9th Cir.1990).  Therefore, the negligence claim was not covered by the Blums' homeowners policies.

15
Because the underlying complaint did not state a claim covered by State Farm's policies with the Blums, State Farm did not have a duty to defend the Blums.  The district court's dismissal of the duty to defend action against State Farm is affirmed.

II.

16
Appellants ask this court to hold that the district court improperly dismissed their entire action when it dismissed their duty to defend claim against State Farm.  In addition to their duty to defend claim, Appellants asserted a variety of claims based on breach of contract.

17
California law is clear: when there is no potential for coverage under an insurance policy (and therefore no duty to defend), there cannot be an action for breach of the implied covenant of good faith and fair dealing.  See Waller v. Truck Ins. Exch., 11 Cal.4th 1, 36, 44 Cal.Rptr.2d 370, 900 P.2d 619 (1995).  Moreover, when there is no duty to defend, a lengthy delay cannot constitute bad faith.  See Love v. Fire Ins. Exch., 221 Cal.App.3d 1136, 1153, 271 Cal.Rptr. 246 (1990).  These holdings support the dismissal of all Appellants' claims, because they are based on the presumption of a contractual duty to defend.  Without such a duty, none of their claims have merit.

III.

18
Appellants also request the court to find that the district court clerk's decision not to enter a default judgment was erroneous.  Although the clerk should have entered a default judgment under Federal Rule of Civil Procedure 66(a), the error was harmless under Rule 61.  Our refusal to set aside the judgment is not "inconsistent with substantial justice," Fed.  R. Civ. Pro. 61, given that Appellants have not shown prejudice or an effect on their "substantial rights" from the failure to enter default.

IV.

19
Appellants also ask us to find that the district court erred by allowing State Farm an extension of time to file its responsive pleading in federal court.  A district court may extend the filing time after the time has expired when the failure to file was the result of excusable neglect.  See Fed.  R. Civ. Pro. 6(b)(2).  The district court's decision to grant a time extension under Rule 6(b)(2) is reviewed for an abuse of discretion.  See Fed.  R. Civ. Pro. 6(b).

20
Although the district court did not make an explicit finding of excusable neglect in its order, it did find "good cause."  The district court thus implicitly found excusable neglect in its grant of a time extension.  The district court had a valid basis for a finding of excusable neglect in the declaration from State Farm's counsel describing the reason for the failure to file a response.  Appellants have made no showing of prejudice, State Farm made a prompt motion for an extension of time once counsel had actual notice of the deadline, and State Farm produced evidence of a valid reason for delay.  See Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc) (holding that these are three of the four factors to consider in excusable neglect under Rule 60(b)).

21
Given that "there is a compelling interest in the finality of judgments which should not lightly be disregarded," Rodgers, 722 F.2d at 459, we will not now set aside the judgment of the district court on the merits because its finding of excusable neglect was not explicit.  Appellants have failed to make a showing of an abuse of discretion by the court.

22
AFFIRMED.

**
 Hon.  William L. Dwyer, United States District Judge for the Western District of Washington, sitting by designation

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                               No. 07-1584

MILDRED F. JONES; RONALD L. LAZZARINE; TAMMY LAZZARINE;
NELLIE G. MOSES, on behalf of themselves and others
similarly situated,

                Plaintiffs – Appellants,

           v.

SEARS ROEBUCK AND COMPANY; SEARS HOLDING CORPORATION; SEARS
NATIONAL BANK; CITIBANK (USA), N.A., their successors and
assigns jointly and severally,

                Defendants – Appellees.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:06-cv-00345)

Argued:   September 23, 2008             Decided:   November 10, 2008

Before TRAXLER, 1 KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

     1
       Judge Traxler participated in the oral argument of this
case, and thereafter recused himself.     This decision is thus
rendered by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
ARGUED: Henry Drewry McCoy, II, Peterstown, West Virginia, for
Appellants.   Daniel Harris Squire, WILMER, CUTLER, PICKERING,
HALE & DORR, L.L.P., Washington, D.C., for Appellees. ON BRIEF:
Raymond A. Bragar, BRAGAR, WEXLER & EAGEL, P.C., New York, New
York, for Appellants.    Rebecca J. K. Gelfond, Kelly Thompson
Cochran, WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P.,
Washington, D.C.; Christopher R. Lipsett, WILMER, CUTLER,
PICKERING, HALE & DORR, L.L.P., New York, New York, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

                                2
PER CURIAM:

        Mildred Jones, Ronald and Tammy Lazzarine, and Nellie G.

Moses, on behalf of themselves and others (collectively, the

“Plaintiffs”),           appeal   from     an    adverse    judgment      in   their

purported class action proceeding against Sears Roebuck & Co.,

Sears       Holding     Corporation,     Sears   National   Bank,   and    Citibank

USA, N.A. (collectively, the “Defendants”).                  The district court

disposed         of   the   relevant   contentions     in   three   steps:         (1)

denying the Plaintiffs’ motion to remand, Jones v. Sears Roebuck

& Co., No. 5:06-cv-00345 (S.D. W. Va. Mar. 8, 2007) (the “Remand

Denial”); 2 (2) granting the Defendants’ motion to dismiss, Jones

v. Sears Roebuck & Co., No. 5:06-cv-00345 (S.D. W. Va. Mar. 28,

2007) (the “Dismissal Opinion”); 3 and (3) denying the Plaintiffs’

motion for reconsideration, Jones v. Sears Roebuck & Co., No.

5:06-cv-00345 (S.D. W. Va. May 18, 2007) (the “Reconsideration

Denial”). 4           On appeal, the Plaintiffs maintain that the court

erred       in   dismissing    their   claims    and   declining    to    remand   to

state court, in denying reconsideration, in failing to conduct a

        2
       The Remand Denial is found at J.A. 105-17.     (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)
        3
            The Dismissal Opinion is found at J.A. 118-27.
        4
            The Reconsideration Denial is found at J.A. 129-30.

                                           3
hearing on the motion to remand, and in failing to grant leave

to amend.        As explained below, we affirm.

                                            I.

                                            A.

       This proceeding originated on November 18, 2003, in the

Circuit Court of Raleigh County, West Virginia, when Mildred

Jones      and     Ronald    and      Tammy       Lazzarine     (collectively,     the

“Original Plaintiffs”), filed suit against Sears National Bank

(“SNB”) and Sears, Roebuck & Co. (“Sears”), on behalf of all

West Virginia residents holding Sears credit cards.                        In    that

complaint (the “State Complaint”), the Original Plaintiffs made

three claims:            (1) seeking a declaration that the arbitration

provision         in     their     Sears      credit         card   agreements     was

unconscionable (Count I); (2) seeking statutory damages under

the    West      Virginia    Consumer       Credit     and    Protection   Act   (the

“WVCCPA”) for unconscionable conduct (Count II); and (3) seeking

declaratory and equitable relief under the WVCCPA because SNB

and Sears failed to disclose trademark licensing relationships

or    place      their    addresses    on     credit    cards,      misleading   class

members as to the identification of the creditor (Count III). 5

On the face of the State Complaint, the words “Citibank USA,

       5
           The State Complaint is found at J.A. 278-88.

                                              4
N.A.” were handwritten in the caption, although Citibank was not

mentioned in the factual allegations. 6

      In February 2004, SNB and Sears filed a motion to dismiss

the State Complaint, contending that Counts I and II failed to

present any justiciable issues because the Original Plaintiffs

had not alleged an underlying dispute or sought to invoke the

arbitration     provision,      and    that       Count   III    failed   to    state   a

claim.     In December 2005, the state court dismissed Counts I and

II, explaining,

      (1) . . . [T]here exists no case or controversy
      between the parties sufficient to support this court’s
      exercise of its constitutional jurisdiction, or, in
      the alternative, (2) if constitutional jurisdiction
      exists, the proper exercise of this court’s discretion
      is that it should decline to consider declaratory
      relief as requested by the individual plaintiffs.

Jones v. Sears, Roebuck & Co., No. 03-C-1011-B, slip op. at 6

(W. Va. Cir. Ct. Dec. 15, 2005) (the “State Court Opinion”). 7

The   state    court     also   dismissed         Count   III,     ruling      that   the

Original Plaintiffs had not proffered any legal basis for the

argument      that   a   credit       card       issuer   must    disclose      certain

geographic licensing and trademark information to its customers.

      6
       The state court declined to treat Citibank as a party to
the State Complaint because no factual allegations were made
against it.
      7
          The State Court Opinion is found at J.A. 313-20.

                                             5
Id.   at    8.     Notably,       the    state     court       dismissed    the    State

Complaint without certifying the class.

      Subsequently,        on    March     9,    2006,    the    Plaintiffs       —     the

Original     Plaintiffs         plus    Nellie    Moses    —     filed     an    amended

complaint     in   the    state    court    that    the    Defendants      removed      to

federal court (the “Federal Complaint”). 8                 The Plaintiffs therein

added      Citibank      and    Sears     Holdings       Corporation       (“SHC”)       as

defendants. 9      The Federal Complaint alleges five counts, with

Counts I through III being substantially the same as Counts I

through III of the State Complaint.

      Count IV of the Federal Complaint alleges violations of (1)

a Federal Trade Commission (“FTC”) consent decree, and (2) the

WVCCPA,     on   behalf    of    Moses     and   other    Plaintiffs.           Count    IV

asserts     that   Sears’s       actions    violated      an    FTC   consent     decree

forbidding Sears to “[c]ollect any debt . . . that has been

legally discharged in bankruptcy proceedings and that respondent

is not permitted by law to collect.”                      In the Matter of Sears

      8
          The Federal Complaint is found at J.A. 13-34.
      9
        According to the Federal Complaint, Citibank is a
“successor and assignee in interest” of Sears credit card
accounts because Citibank acquired the accounts in November of
2003 for approximately $3.5 billion. Federal Complaint ¶ 7. It
further alleges that SHC is the parent company that resulted
from a merger between Sears and KMart Corporation in March 2005,
that SHC took the place of Sears on the New York Stock Exchange,
and that SHC is the parent corporation of Sears.

                                            6
Roebuck      &    Co.,      FTC    File     No.       972-3187     (June      4,    1997)    (the

“Consent         Decree”). 10        Count        IV    further        alleges      that     Sears

contravened         the     Consent       Decree       because     it    had     initiated     an

action against Moses in state court in January 2001 — the year

after      her     liability        had    been        discharged       due    to    Chapter    7

bankruptcy         —   to    enforce        a   security      interest         in    goods    she

purchased using a Sears credit card (the “Collection Suit”).

The       Collection        Suit      was       dismissed         in      March      2002      for

nonprosecution,           but      allegedly           violated     the       WVCCPA       because

Sears’s conduct constituted “unfair methods of competition and

unfair or deceptive acts or practices.”                            W. Va. Code § 46A-6-

104. 11

      Count        V   of     the     Federal          Complaint        contains       the   same

allegations as Counts I through IV, and is asserted on behalf of

a limited subclass of plaintiffs (“Subclass A”), namely, all

Sears credit card holders in West Virginia (1) who held credit

cards between the filing of the Consent Decree (June 4, 1997),

and the filing of the Federal Complaint (November 18, 2003), and

(2) against whom Sears or SNB enforced or sought to enforce a

      10
           The Consent Decree is found at J.A. 70-78.
      11
        The entire text of West Virginia Code section 46A-6-104
provides, “Unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are
hereby declared unlawful.”

                                                  7
security     interest          while        the     card       agreements         contained      the

arbitration provision.

                                                  B.

       On May 10, 2006, Citibank removed the Federal Complaint to

the Southern District of West Virginia, pursuant to 28 U.S.C. §

1446   and    a   Class        Action    Fairness             Act   (“CAFA”)      provision,      28

U.S.C. § 1453.            The Plaintiffs moved to remand to state court,

and the district court denied the motion.                               On May 17, 2006, all

Defendants (SNB, Sears, SHC, and Citibank) sought dismissal of

the Federal Complaint, and the court filed the Dismissal Opinion

on March 28, 2007.              In its ruling, the court made the following

conclusions:        (1)    Counts       I     and       II    are     not    justiciable      under

Article III of the Constitution of the United States because

they present no case or controversy; (2) the state court’s 2005

dismissal of Count III should stand, pursuant to the law of the

case doctrine; (3) Count IV does not state a claim under the

terms of the Consent Decree or under West Virginia law; and (4)

Count V simply restated the other counts on behalf of a limited

subclass of plaintiffs, and therefore should also be dismissed.

       By    letter       of     February          23,        2007,     the      Plaintiffs      had

informally        suggested           that        the        district       court      conduct    a

“preliminary        hearing”       before          it        disposed       of   the   motion     to

remand.       The     Plaintiffs         later          sought      reconsideration        of    the

Dismissal     Opinion,          and     the       court        filed    its      Reconsideration

                                                   8
Denial   on    May    18,   2007,    explaining         that    the    Plaintiffs     were

rehashing old arguments or raising assertions that could have

been made earlier.           In seeking reconsideration, the Plaintiffs

also sought leave to amend, and the Reconsideration Denial did

not explicitly refer to the amendment request.                          The Plaintiffs

have    timely    noted     this    appeal,       and    we    possess       jurisdiction

pursuant to 28 U.S.C. § 1291.

                                           II.

       We review de novo issues of standing and justiciability.

Piney Run Pres. Ass’n v. County Comm’rs, 268 F.3d 255, 262 (4th

Cir. 2001).       We also review de novo a district court’s dismissal

for failure to state a claim upon which relief can be granted.

Mayes    v.   Rapoport,     198     F.3d    457,   460     (4th       Cir.   1999).      By

contrast, we review for abuse of discretion a district court’s

denial of a motion for reconsideration or a request for leave to

amend.    Ingle      v.   Yelton,    439    F.3d    191,       197    (4th    Cir.    2006)

(providing standard for denial of reconsideration); Franks v.

Ross, 313 F.3d 184, 192 (4th Cir. 2002) (explaining standard for

denial of leave to amend).

                                           III.

              This appeal challenges the Dismissal Opinion’s rulings

(1) that Counts I and II are not justiciable under Article III,

                                            9
and thus subject to dismissal, because each fails to present a

case    or    controversy;       (2)       that    dismissal      of    Count     III   was

mandated under the law of the case doctrine; (3) that Count IV

fails to allege a claim under either the FTC Consent Decree or

West Virginia law; and (4) that Count V simply restates the

other counts on behalf of a limited subclass of plaintiffs, and

therefore      must    be     dismissed      as    well.         The    Plaintiffs      also

contend      that     the     court       erred    in    the     Remand       Denial,    the

Reconsideration Denial, and in failing to grant leave to amend.

As   explained       below,    we     affirm      the   Dismissal       Opinion    on   the

following bases:            Counts I and II because the Plaintiffs lack

standing; Count III as to the Original Plaintiffs under the law

of   the     case    doctrine,      and    because      the    added    Plaintiffs      lack

standing; and Counts IV and V for lack of standing.

                                             A.

       First of all, we assess the district court’s dismissal of

Counts I and II of the Federal Complaint.                              In Count I, the

Plaintiffs      seek     declaratory         relief      under    the     West    Virginia

Declaratory         Judgment    Act, 12     maintaining        that     the    arbitration

       12
        Although the State Complaint purported to invoke West
Virginia’s Declaratory Judgment Act, we apply the federal
Declaratory Judgment Act in this proceeding.    See 28 U.S.C. §
2201; Chapman v. Clarendon Nat’l Ins. Co., 299 F. Supp. 2d 559,
562-63   (E.D.  Va.   2004)  (holding   that removal  of  state
declaratory judgment action invokes § 2201).

                                             10
provisions        of     the      Sears        credit        card    agreements           are

unconscionable.          They claim that the agreements unlawfully bar

participation in class actions, prevent access to the courts,

and unconstitutionally deprive them of their right to a jury

trial.       In Count II, the Plaintiffs allege violations of the

WVCCPA    and    claim       statutory      damages.       As    explained      below,     we

agree that Counts I and II fail to present a justiciable case or

controversy under Article III of the Constitution.

      A   federal        court       may    exercise       its    jurisdiction       in     a

declaratory judgment proceeding only when “the complaint alleges

an    actual     controversy          between        the   parties        of    sufficient

immediacy       and    reality    to       warrant    issuance      of    a    declaratory

judgment.”       Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co.,

386   F.3d    581,     592    (4th    Cir.    2004)     (internal        quotation   marks

omitted).        In order to satisfy this requirement, a plaintiff

must possess standing to sue, meaning that a claim must present

a “controversy that qualifies as an actual controversy under

Article III of the Constitution.”                      Id.       Standing encompasses

three components: “(1) the plaintiff must allege that he or she

suffered an actual or threatened injury that is not conjectural

or hypothetical, (2) the injury must be fairly traceable to the

challenged conduct, and (3) a favorable decision must be likely

to redress the injury.”              Miller v. Brown, 462 F.3d 312, 316 (4th

                                              11
Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)).

       In light of our decision in Volvo, Count I fails to show an

actual or threatened injury that rises to the level of a case or

controversy.          Volvo   also    concerned       a       claim   for   declaratory

relief, and although we found a controversy present, we observed

that one is not present when “the defendant ha[s] not taken any

action, even of a preliminary nature, against the plaintiff, and

the defendant ha[s] not indicated that it intend[s] to take any

future legal action against the plaintiff.”                           386 F.3d at 592

n.12 (distinguishing N. Jefferson Square Assocs. v. Va. Hous.

Dev. Auth., 94 F. Supp. 2d 709, 714 (E.D. Va. 2000)).                              Such is

precisely the situation at hand:                 none of the Defendants has

threatened to invoke the arbitration provision, and none of the

Plaintiffs      has     alleged      an   underlying           dispute      that     might

legitimately progress to that point.

       The Plaintiffs apparently added Moses as a named plaintiff

in the Federal Complaint to correct their standing problem, as

evidenced by their present contention that “only one plaintiff

must    have    standing      in     order     that       a     federal     court     have

jurisdiction over a class action suit under Article III.”                              Br.

of Appellants 17 (citing Bowsher v. Synar, 478 U.S. 714, 721

(1986)).       The addition of plaintiff Moses, however, fails to

cure the Plaintiffs’ standing problem.                     Moses was subjected to

                                          12
the     Collection      Suit       by    Sears       in    2001,      and    the    Plaintiffs

maintain that it “relegate[ed] her solely to arbitration under

NAF [National Arbitration Forum] auspices.”                                 Id. at 22.           In

other    words,       the    Plaintiffs         contend,        if    Moses    had       filed   a

counterclaim in the Collection Suit, she would likely have had

to submit to arbitration in an NAF forum.

       Assuming the validity of such an assertion, it does not

raise    Moses’s      claim    in       Count    I    to       an    Article      III    case    or

controversy.         Declaratory judgment actions must allege disputes

that are “real and substantial and admi[t] of specific relief

through a decree of a conclusive character, as distinguished

from     an    opinion       advising         what     the      law    would       be    upon    a

hypothetical         state    of    facts.”          MedImmune,        Inc.    v.       Genetech,

Inc.,    127    S.    Ct.    764,       771   (2007)        (internal       quotation       marks

omitted).       As with other Plaintiffs, Sears neither invoked nor

threatened to invoke the arbitration provision of Moses’s credit

card    agreement,      and    any      ruling       made      here    on   the    arbitration

provision would constitute an advisory opinion.

       The    Plaintiffs       also      maintain         on    appeal      that   a    district

court “should refuse to entertain a declaratory judgment only

for good cause.”             Br. of Appellants 27 (citing Aetna Cas. &

Surety Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937)).                                       The

lack of standing is sufficient good cause, however; it is the

“threshold question in every federal case, determining the power

                                                13
of the court to entertain the suit.”               Warth v. Seldin, 422 U.S.

490, 498 (1975).         Thus, in the absence of an injury and with no

“real and substantial” dispute, the court properly declined to

entertain Count I upon removal.

        In its Dismissal Opinion, the district court compared this

proceeding to the situation in Bowen v. First Family Financial

Services, Inc., 233 F.3d 1331 (11th Cir. 2000).                  In Bowen, the

class        action   plaintiffs    lacked    standing   to   question   whether

arbitration       agreements   are     generally   unenforceable     under   the

Truth-in-Lending Act.              The Eleventh Circuit so ruled because

“there [was] no allegation that First Family has invoked, or

threatened to invoke, the arbitration agreement to compel the

plaintiffs to submit any claim to arbitration.”                 Id. at 1339. 13

        13
        The Eleventh Circuit addressed two separate standing
issues in Bowen:    first, under the Truth-in-Lending Act and
second, under the Equal Credit Opportunity Act (the “ECOA”).
Although the court ruled that the plaintiffs did not possess
standing to pursue a Truth-in-Lending Act claim, it concluded
that they possessed standing to challenge the defendant’s
requirement that customers must execute arbitration agreements
as a condition of credit under the ECOA.     But the plaintiffs’
standing only arose from the ECOA itself, which creates an
explicit cause of action for consumers who are discriminated
against “with respect to any aspect of a credit transaction”
because they “in good faith, exercise[] any right under [the
Consumer Credit Protection Act].”    Bowen, 233 F.3d at 1334-35
(citing 15 U.S.C. § 1691(a)). In so ruling, the court of appeals
reasoned that “[t]he difference is that the plaintiffs were
required to and did sign the arbitration agreement, but there
has been no occasion for First Family to attempt to enforce it
against them.”    Id. at 1339. The matter on appeal is more
analogous to the Truth-in-Lending Act claim because these
(Continued)
                                         14
This action is similar to Bowen because the Plaintiffs have not

sufficiently           alleged    that    the        Defendants      either        invoked     or

threatened        to    invoke    the    arbitration          provision       of    the   Sears

credit card agreements.

      We thus agree, in disposing of Count I, with the courts

that have deemed a challenge to an arbitration provision, in the

absence      of   an     underlying      dispute        or    imminent       injury,      to    be

nonjusticiable.            See, e.g., Bowen, 233 F.3d 1331; Lee v. Am.

Express Travel Related Servs., No. 07-04765, 2007 WL 4287557, at

*5 (N.D. Cal. Dec. 6, 2007) (concluding that plaintiffs “have

not and cannot allege any damage because they do not have a

dispute      with       defendants       that        they    tried    unsuccessfully           to

litigate as a class action”); Rivera v. Salomon Smith Barney

Inc., No. 01 Civ. 9282, 2002 WL 31106418, at *6-7 (S.D.N.Y.

Sept. 20, 2002) (recognizing that plaintiff lacked standing to

seek declaratory relief on arbitration provision because she did

not “file[] or serve[] any lawsuit alleging that [defendant] . .

. [or] anyone representing any of the defendants has informed

her   that    they       will    seek    to   invoke        the   Arbitration        Policy”);

Tamplenizza        v.    Josephthal       &     Co.,    32    F.     Supp.    2d     702,      704

Plaintiffs do not allege that they were coerced into signing an
arbitration provision in exchange for exercising a statutory
right.

                                                15
(S.D.N.Y.       1999)   (recognizing       as   nonjusticiable       challenge         to

arbitration      provision,       absent    sufficient      indications         that   it

would    be    invoked).      Notably,      some   courts    have    premised       such

decisions on the ripeness doctrine.                See Ruckelshaus v. Monsanto

Co., 467 U.S. 986, 1019-20 (1984) (recognizing lack of ripeness

on    whether    arbitration      will     provide     reasonable    compensation,

where plaintiff "did not allege or establish that it had been

injured by actual arbitration under the statute”); Bd. of Trade

v. Commodity Futures Trading Comm’n, 704 F.2d 929, 932 (7th Cir.

1983)    (concluding       that   threatened       enforcement      of       arbitration

rule did not establish ripeness).

       The Plaintiffs rely on the Second Circuit’s decision in

Ross v. Bank of America, N.A., for the proposition that they

suffered an injury-in-fact and therefore possess standing.                             See

524 F.3d 217 (2d Cir. 2008).                In Ross, a group of plaintiffs

sued Bank of America and Citibank, among others, because their

credit card agreements included provisions imposing arbitration

“as the sole method of resolving disputes relating to the credit

accounts” and disallowing class action proceedings.                          Id. at 220.

The     Ross    plaintiffs,       however,      were    pursuing         a     different

proposition than we face here.              They claimed that the agreements

violated the antitrust statutes because the banks had colluded

“to constrict the options available to cardholders”; they did

not simply allege that the provision alone caused them injury.

                                           16
Id.   at   223.       The      Second   Circuit   held    that        the    plaintiffs

possessed standing “in terms of the antitrust injuries that the

cardholders        have     asserted,”     observing     that         “one    form    of

antitrust     injury      is    ‘[c]oercive    activity        that    prevents      its

victims     from    making      free    choices.’”       Id.     (emphasis       added)

(quoting Associated Gen. Contractors of Cal., Inc. v. Cal. State

Council of Carpenters, 459 U.S. 519, 528 (1983)).                      Our situation

is distinguishable — the Plaintiffs have not alleged antitrust

violations or collusion by credit card companies.                      We thus agree

with the Defendants that Ross does not support the Plaintiffs’

argument on standing. 14

      Turning to Count II, we recognize that this claim turns on

the possibility of collecting damages under the WVCCPA for the

      14
       The Plaintiffs also rely on Arnold v. United Cos. Lending
Corp., for the proposition that an arbitration agreement
“contain[ing] a substantial waiver of the borrower’s rights . .
. while preserving the lender’s right to a judicial forum . . .
is unconscionable.” 511 S.E.2d 854, 862 (W. Va. 1988). Arnold,
however, involved certified questions concerning arbitration
provisions, and the ruling was premised on the presumption that
“some controversy remains before the circuit court.”      Id. at
858.   Thus, Arnold did not present a standing issue.        The
Plaintiffs also rely on State ex rel. Dunlap v. Berger, and
assert that arbitration provisions are unconscionable because
they are rarely read or understood by cardholders.    567 S.E.2d
265, 274 (W. Va. 2002).     Dunlap addressed the merits of the
unconscionability issue only, not the question of standing. Id.
at 269.    These West Virginia decisions thus do not aid our
analysis.

                                          17
Defendants’ conduct. 15           The Plaintiffs contend that Moses and the

other        Plaintiffs   seek    to   “redress     th[e]   wrong”     of   allegedly

unconscionable arbitration provisions under West Virginia law.

Br. of Appellants 25.              In order to award damages, however, a

court would be required to first decide that the arbitration

provisions are unconscionable, or that the Defendants engaged in

unconscionable conduct.             Because we have already concluded that

this issue is nonjusticiable, the Plaintiffs lack Article III

standing to pursue Count II.

                                          B.

      We must now analyze the issues presented with respect to

the   district         court’s    dismissal    of   Count   III   of   the    Federal

Complaint.         As explained below, we also affirm the Dismissal

Opinion with respect to this claim.

      We       first    examine     the   Plaintiffs’       contention      that   the

district court erroneously dismissed Count III of the Federal

Complaint, which alleges that Defendants engaged in unfair and

        15
         In Count II, the Plaintiffs claim $1,000 for each
violation of the WVCCPA, under sections 46A-5-101 and/or 46A-5-
105.   Section 46A-5-101(1) provides that a debtor who can show
that his or her creditor violated Chapter 46A “has a cause of
action to recover actual damages and . . . a penalty [of] . . .
not less than one hundred dollars nor more than one thousand
dollars.”    Pursuant to section 46A-5-105, “if a creditor has
willfully violated the provisions of this chapter, . . . in
addition to the remedy provided in [section 46A-5-101], the
court may cancel the debt when the debt is not secured by a
security interest.”

                                          18
deceptive trade practices, in violation of the WVCCPA.                                  More

specifically,       it    asserts    that,       in   failing    to    disclose     their

trademark licensing relationships and their physical addresses

on credit cards, the Defendants misled the class members with

respect to the corporate entities and geographical addresses of

their creditors.          For such deceptive practices, the Plaintiffs

maintain that section 46A-6-106 of the WVCCPA permits them to

collect statutory damages of $200 per violation.                             Because the

state court dismissed Count III with respect to the original

parties     only,    we     will    separately         examine        the     Plaintiffs’

contentions with regard to both the original parties and the

added parties.

                                            1.

     In 2005, the state court dismissed Count III of the State

Complaint    under       West    Virginia    Rule      12(b)(6),      for     failure     to

state a claim upon which relief can be granted.                             The Dismissal

Opinion   dismissed        the    virtually       identical     Count        III   of   the

Federal Complaint under the law of the case doctrine and 28

U.S.C. § 1450. 16         Pursuant to the law of the case doctrine, “a

     16
        The Plaintiffs contend that Count III of the Federal
Complaint   contains  “material  revisions”  from   the  State
Complaint.   Br. of Appellants 33.  This contention is without
merit, however, because the only revisions made to the Federal
Complaint are not materially distinct allegations.  First, the
Plaintiffs simply added the allegation that Sears and SNB were
likely not the true and correct owners of the accounts because
(Continued)
                                            19
court should not reopen issues decided in earlier stages of the

same   litigation.”       Agnostini      v.       Felton,    521     U.S.    203,    236

(1997).    Similarly, under § 1450, “[a]ll injunctions, orders,

and other proceedings had in such [state court] action prior to

its    removal   shall    remain   in        full    force    and     effect     until

dissolved or modified by the district court.”                      See also Granny

Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers

Local No. 70, 415 U.S. 423, 436 (1974) (“After removal, the

federal court ‘takes the case up where the State court left it

off.’” (quoting Duncan v. Gegan, 101 U.S. 810, 812 (1880))).                          As

the    Supreme    Court    explained         in     Granny    Goose         Foods,    in

recognizing      that    the   underlying           state    court     rulings       are

effective in federal court, the interests of judicial economy

they sold them as “securitized assets” to unknown parties.
Federal Complaint ¶ 19, n.2.     Second, the Plaintiffs contend
that the Federal Complaint alleges — in contrast to the State
Complaint — that SNB has disappeared or has been liquidated.
These revisions merely reflect a change in the Defendants’
situation, however, and do not affect the state court’s
dismissal of its Count III.    Third, the Plaintiffs also claim
that they added specific statutes to Count III of the Federal
Complaint.    These are all grounded in West Virginia law,
however, and the state court ruled that the Original Plaintiffs
have failed to allege a cause of action under West Virginia law.
Finally, the Dismissal Opinion correctly observed that, in
response to the Defendants’ motion to dismiss the Federal
Complaint, the Plaintiffs addressed Count III simply by
incorporating by reference the arguments they had made in state
court.

                                        20
are promoted and the parties’ rights are protected.                            See 415

U.S. at 435-36.

        Although most of the decisions invoking §                  1450 relate to

state    court    injunctions   and      interlocutory    rulings     in       removed

federal cases, their reasoning extends to proceedings such as

this, where a federal court must address a claim that has been

previously dismissed in state court.              The utilization of § 1450

in this setting thus advances the principles that it seeks to

promote — judicial economy and protection of the parties’ rights

— and also implicates the law of the case doctrine.                   In sum, the

Plaintiffs have not presented us with any reason for disturbing

the   state      court’s   ruling   on    Count   III    as   to    the    Original

Plaintiffs.

                                         2.

        Because Citibank and SHC were first made defendants in the

Federal Complaint (the state court found that Citibank was not a

defendant in the State Complaint), we must assess Count III with

regard to these additional defendants.             Similarly, because Moses

and the Subclass A plaintiffs were added as plaintiffs in the

Federal Complaint, we must analyze Count III as to them.                            As

explained     below,   the   new    plaintiffs    lack    standing        to    pursue

Count III against Citibank and SHC because the Federal Complaint

fails to sufficiently allege an injury or threatened injury.

        In that respect, the Plaintiffs contend that the Defendants

                                         21
     engage in a definite and elaborate scheme and unfair
     method of doing business so that consumers and credit
     cardholders   may  not   readily   locate  either    any
     telephone number or physical mailing address or actual
     place of business other than post office boxes and
     other than so-called “Customer Service” 800 numbers.

Federal Complaint ¶ 57.         The Plaintiffs also allege that “Sears

National   Bank    is    not   in   fact   and       in   law   the    owner    of   the

trademarks” of the credit cards, as Sears has led its consumers

to believe.     Id. at ¶ 55.         The Plaintiffs allege that Sears and

Citibank caused SNB to be liquidated and dissolved, “without any

merger or supersedes clauses in any agreement upon which a Sears

cardholder may rely,” and classify the Defendants’ actions as a

“classic ‘shell’ game.”             Id. at ¶ 56, 58.             They assert that

Citibank   continues       a   pattern        of    “deceptive        practices”     and

“should similarly be enjoined from such practices” for violation

of West Virginia Code section 46A-6-102(f)(3), (f)(4). 17                       Id. at

¶ 60.

     The Plaintiffs have failed, however, to explain how they

were or could be injured by the alleged “tremendous confusion”

created by defendants’ conduct.                Federal Complaint ¶ 56.               The

solution   to     this   problem,     they         maintain,    is     that    Citibank

     17
        Under the WVCCPA, “unfair trade practices” include:
“[c]ausing likelihood of confusion or of misunderstanding as to
affiliation, connection or association with or certification by
another” and “[u]sing deceptive representations or designations
of geographic origin in connection with goods or services.” W.
Va. Code § 46A-6-102(7)(C),(7)(D) (renumbered 2005).

                                         22
“should be ordered to place the physical location and street

address    on    their    credit      cards     as     to   where     a    cardholder     may

dispute    dealings       of     defendants,         including       service      of   legal

process.”       Id. at 60.          Again, they fail to explain how such a

mandate would have assisted them in locating the Defendants, or

how any of the Plaintiffs were harmed by the absence of such a

disclosure.

       Although the Plaintiffs seek to utilize the WVCCPA as a

means to secure standing, this effort also fails.                                The WVCCPA

provides    that       “unfair      methods     of     competition         and   unfair   or

deceptive acts or practices” include

       [t]he act, use or employment by any person of any
       deception, fraud, false pretense, false promise or
       misrepresentation, or the concealment, suppression or
       omission of any material fact with intent that others
       rely upon such concealment, suppression or omission,
       in connection with the sale or advertisement of any
       goods or services, whether or not any person has in
       fact been misled, deceived or damaged thereby.

W. Va. Code § 46A-6-102(7)(M) (emphasis added).                              In order to

invoke this provision, however, a plaintiff is obliged to plead

with      particularity             that      defendants           have      fraudulently

misrepresented         their    identity      to     consumers,       or    intended    that

others    rely    on    the    omission     of     a   correct       address     and   phone

number.     See    Fed.        R.   Civ.   P.      9(b).      No     such    pleading     was

presented, and a cursory reference to a “shell game” and “a

pattern    of    deceptive          practices”       is     simply    not    sufficiently

                                            23
particular to proceed.          See Garvin v. S. States Ins. Exch. Co.,

329 F. Supp. 2d 756, 760 (N.D. W. Va. 2004) (concluding that, on

fraud claims, elements pleaded with particularity include time,

place, and contents of false representations), aff’d, No. 05-

1812, 2006 U.S. App. LEXIS 1593 (4th Cir. Jan. 23, 2006).

       Finally, although the Plaintiffs allege in Count III that

locating the actual place of business of the Defendants causes

extreme difficulty, the state court observed that “[t]his is a

rather difficult point for Plaintiffs to maintain because they

have, it seems, managed to sue the Defendants.”                        State Court

Opinion 7.     In any event, the Sears credit card agreement states

that   SNB,    as     issuer,   is    an   affiliate     of   Sears.      J.A.   51

(defining     “we,”    “us,”    and   “our”     as   “Sears   National   Bank    (an

affiliate of Sears) or any subsequent holder of the account or .

. . any servicer of your account authorized by us”).                     For these

reasons, the Dismissal Opinion must be affirmed as to Count III

— with respect to both Moses and the Subclass A plaintiffs —

because they lack standing to pursue it.

                                           C.

       Having disposed of the three counts that were first pursued

in the State Complaint, we turn to Counts IV and V, the claims

alleged for the first time in the Federal Complaint.                      We begin

with Count IV.

                                           24
                                      1.

     The district court dismissed Count IV under Rule 12(b)(6)

for failure to state a claim upon which relief can be granted.

If we disagree with that ruling, we are nonetheless entitled to

affirm on different grounds “if fully supported by the record.”

Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 361 n.3

(4th Cir. 1994).        Because this record reveals that none of the

Plaintiffs   —    i.e.,    the   Original     Plaintiffs,   the   Subclass   A

plaintiffs, or Moses — has standing to pursue Count IV, we

affirm for that reason.          See Davis v. Fed. Election Comm’n, 128

S. Ct. 2759, 2769 (2008) (“A party facing prospective injury has

standing to sue where the threatened injury is real, immediate,

and direct.”); Bowen, 233 F.3d at 1340 (“A threatened injury

must be ‘certainly impending’ to constitute injury in fact.”

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))).

     In   Count   IV,     the    Plaintiffs    allege   violations   of   the

Consent Decree and seek statutory damages for violations of the

WVCCPA (specifically section 46A-6-104).             In the Decree, Sears

was ordered not to “[c]ollect any debt (including any interest,

fee, charge, or expense, incidental to the principal obligation)

that has been legally discharged in bankruptcy proceedings and

that respondent is not permitted by law to collect.”                 Consent

Decree 3.    Count IV alleges that Sears violated the Decree and

the WVCCPA by filing the Collection Suit.

                                      25
     The state court terminated the Collection Suit in March

2002 for nonprosecution, and Count IV fails to plead any facts

to show that Sears had “collect[ed] any debt” from Moses either

before    or   after   termination      of       the    Collection           Suit.        The

Plaintiffs     contend,      however,        that       “the      law     suit       [sic],

nonetheless, constitutes . . . a continuing violation of the

[Consent Decree] . . . until the date of [the Collection Suit’s]

dismissal.”        Federal   Complaint       ¶    43.        To   the    contrary,        the

Collection     Suit    could   not     be        classified       as     a     threatened

violation of the Consent Decree.

     The Collection Suit sought the enforcement of a security

interest, not the collection of a debt, and “[a] discharge in

bankruptcy     .   .   .   ordinarily       does       not    wipe      out    previously

perfected security interests in tangible personal property.                               The

lienholder retains a right of repossession, subject, however, to

the bankrupt’s possible right of redemption.”                        Arruda v. Sears

Roebuck & Co., 310 F.3d 13, 16 (1st Cir. 2002); see also Farrey

v. Sanderfoot, 500 U.S. 291, 297 (1991) (“Ordinarily, liens and

other secured interests survive bankruptcy.”); Johnson v. Home

St. Bank, 501 U.S. 78, 83 (1991) (concluding that Chapter 7

liquidation    “extinguishes     only       the     personal      liability          of   the

debtor”    (internal       quotation     marks          omitted)         (emphasis         in

original)).        Because the Consent Decree addressed conduct not

                                        26
alleged in Count IV, that claim fails to allege an injury, or a

threatened or imminent injury.

                                          2.

       The Plaintiffs also allege in Count IV that Sears’s conduct

— filing suit against Moses while knowing that she had filed

bankruptcy, and its purported violation of the Consent Decree —

entitles them to recover statutory damages under the WVCCPA.

This aspect of Count IV also fails, however, because Moses and

the Subclass A plaintiffs lack standing to collect such damages.

       In   Orlando      v.   Finance    One   of    West    Virginia,      Inc.,   the

Supreme Court of Appeals of West Virginia ruled that a plaintiff

cannot collect damages under sections 46A-6-102(f) or 46A-6-104

of the WVCCPA if he “ha[s] suffered no ‘ascertainable loss of

money or property’ as a result of the inclusion of” an allegedly

unconscionable provision in a contract.                 369 S.E.2d 882, 888 (W.

Va. 1988) (quoting W. Va. Code § 46A-6-106).                      In Orlando, the

plaintiffs    challenged        a   purported       waiver   of   a   homestead     and

personal property exemption in their loan contract with Finance

One.    Id. at 883.       After the Plaintiffs defaulted on their loan,

Finance     One   instituted        collection      activities.        It   did     not,

however, seek judicial enforcement of the waiver clause.                            Id.

As in this proceeding, the plaintiffs sued Finance One for a

declaration       that    the   waiver    clause      was    unconscionable,        and

                                          27
seeking statutory penalties under the WVCCPA because inclusion

of the clause was an unfair and deceptive act or practice.                           Id.

     The     state      supreme        court      concluded         that    the   Orlando

plaintiffs      could    not     collect       damages       for    violations      of    the

WVCCPA    because     “Finance     One     made    no    attempt      to   enforce       [the

waiver     clause],”      and,    therefore,        “[plaintiffs]           suffered      no

ascertainable loss of money or property.”                          Orlando, 369 S.E.2d

at 888.      Similarly, Moses and the other Plaintiffs have never

alleged a loss of money or property due to the inclusion of an

alleged      unconscionable         provision           in        their    credit        card

agreements.      In such circumstances, they lack standing to pursue

a claim for damages under Count IV. 18

                                           D.

     Count V purports to reallege the allegations of Counts I

through    IV    on     behalf    of     Subclass       A,    a    limited      number     of

plaintiffs      who   held     credit     cards     between        June    4,   1997,    and

November 18, 2003, and against whom Sears or SNB either enforced

or attempted to enforce a security interest while the cardholder

     18
        The Plaintiffs also make an argument with respect to
common law fraud.   This issue was mentioned in passing in the
Federal Complaint, but nothing was pleaded “with particularity”
pursuant to Rule 9(b). The district court did not address this
point, and neither do we. See In re Wallace and Gale Co., 385
F.3d 820, 835 (4th Cir. 2004) (observing that failure to raise
argument before district court results in waiver on appeal,
absent exceptional circumstances).

                                           28
agreement      contained           the     arbitration             provision.           These

plaintiffs,     however,          have   no    greater       cognizable       injuries     or

causes of action than the other plaintiffs, as they have not

shown either the invocation or the impending invocation of the

arbitration provision.             Furthermore, because Moses satisfies the

requirements        of    Subclass       A,    the     conclusions       we     have     made

regarding Moses are attributable to the Subclass A plaintiffs.

We thus affirm the dismissal of Count V for lack of standing.

                                              E.

       Finally, we turn to the Plaintiffs’ several allegations of

procedural error.           First and foremost, we are generally unable

to review the propriety of the denial of a motion to remand.

“It is, of course, beyond question that an order of a district

court denying a motion to remand, standing alone, is not a final

order appealable under 28 U.S.C. § 1291.”                           Three J Farms, Inc.

v.    Alton   Box    Bd.    Co.,     609      F.2d    112,     114    (4th    Cir.     1979).

Nevertheless, the Plaintiffs argue that this case was improperly

removed and that we can now address that issue.                          In Aqualon Co.

v. Mac Equipment, Inc., however, we recognized that, even if

removal was improper, the judgment should not be disturbed if

the court possessed jurisdiction to enter it.                          See 149 F.3d 262,

264   (4th    Cir.       1998).      Because       the      district    court    possessed

subject   matter         jurisdiction,        we     will    not    disturb     the    Remand

Denial.

                                              29
         The district court properly concluded under CAFA that it

possessed subject matter jurisdiction at the time of judgment.

See 28 U.S.C. § 1332(d). 19                Under CAFA, a class action may be

initiated in federal court if (1) the controversy exceeds the

sum or value of $5,000,000; (2) the claim was originally filed

as   a        class   action   under     Rule    23    of   the    Federal     Rules     or    a

comparable state statute; and (3) any member of the class of

plaintiffs is a citizen of a state different from any defendant.

28   U.S.C.           §   1332(d)(1)(B),        (d)(2)(A).          Here,      the     Federal

Complaint seeks damages of approximately $370 million; the claim

was filed under West Virginia Rule 23 (governing class actions);

and the Plaintiffs are citizens and residents of West Virginia,

while the Defendants are citizens of Illinois, South Dakota, and

Arizona.          In those circumstances, the court possessed diversity

jurisdiction over the Federal Complaint.

         The Plaintiffs contend, however, that the CAFA provisions

do   not        apply     to   the     Federal       Complaint,     because      the    State

Complaint         was     filed   in    November       2003,      prior   to    CAFA     being

enacted.          CAFA became effective in February 2005 and, according

to   the        Plaintiffs,       the    Federal       Complaint      relates        back     to

November 2003.             It is uncontested that CAFA applies to any suit

         19
        Although the Remand Denial concluded that the court
possessed diversity jurisdiction under CAFA, it appears to have
also possessed diversity jurisdiction under § 1332(a).

                                                30
commenced on or after February 18, 2005.                 See Pub. L. No. 109-2,

§ 9, 119 Stat. 14 (2005); Adams v. Ins. Co. of N. Am., 426 F.

Supp.    2d   356,    367   (S.D.    W.    Va.   2006).      The    Remand      Denial

correctly       determined,     however,         that     CAFA     applies      here,

concluding that the Federal Complaint “commenced” a new action

when it was filed in 2006, because it alleged claims that were

“factually      and   legally       distinct”     from    those    in    the    State

Complaint.      Remand Denial 8.

     Because state law controls the issue of whether an amended

complaint has “commenced” a new action, we look to West Virginia

Rule of Civil Procedure 15(c) for guidance.                  See Adams, 426 F.

Supp. 2d at 370.        Pursuant thereto, an amendment of a complaint

relates back when it “ar[ises] out of the conduct, transaction,

or occurrence set forth or attempted to be set forth in the

original pleading.”           W. Va. R. Civ. P. 15(c)(2).                    In other

words, a complaint will relate back when its amendments “state a

cause of action growing out of the specified conduct of the

defendant     which   gave    rise    to   the   original    cause      of    action.”

Adams,    426    F.   Supp.   2d     at    375   (citing    Roberts      v.    Wagner

Chevrolet-Olds, Inc., 258 S.E.2d 901, 903 (W. Va. 1979)).                          It

follows that, if an amended complaint states a claim growing out

of conduct distinct from the original complaint, the amended

complaint does not relate back.

                                           31
      In this situation, Counts IV and V present new claims that

are   premised    on   conduct     and        occurrences   that    are    readily

distinct from the allegations of the State Complaint, and the

Federal Complaint thus does not relate back.                 For example, the

Federal Complaint alleges Sears’s enforcement of its security

interests   and   violation   of    the       Consent   Decree,    and    it   added

Moses and a new subclass of plaintiffs presumably affected by

such conduct.     Because these are distinct and new allegations,

the Federal Complaint does not, pursuant to state Rule 15(c)(2),

relate back to the filing of the State Complaint.                        CAFA thus

applies here, and the district court possessed subject matter

jurisdiction of the Federal Complaint.                  Any alleged procedural

deficiency in the removal process thus does not affect the final

judgment of the district court. 20

      20
       The district court did not abuse its discretion in filing
the Reconsideration Denial and denying the Plaintiffs’ request
for amendment of the Federal Complaint.         First, we have
recognized three potential grounds for reconsideration: (1) to
accommodate an intervening change in controlling law, (2) to
account for new evidence not available at trial, or (3) to
correct a clear error of law to prevent manifest injustice.
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). The
Plaintiffs did not assert any of these grounds; thus, their
motion was properly denied.   The court also did not abuse its
discretion in declining to grant leave to amend the Federal
Complaint.   In Healthsouth Rehabilitation Hospital v. American
National Red Cross, we explained that disposition of a motion to
amend lies within the sound discretion of the district court.
101 F.3d 1005, 1010 (4th Cir. 1996).        The court need not
articulate grounds for denying leave to amend, “as long as its
reasons are apparent.” Id. The Plaintiffs’ proposed amendments
(Continued)
                                         32
                              IV.

     Pursuant to the foregoing, the judgment of the district

court is affirmed.

                                                       AFFIRMED

— relabeling Count V as Count IV and deleting all references to
the Consent Decree — would be futile; therefore, the district
court did not err in this respect.         Finally, we are not
satisfied that the Plaintiffs sufficiently requested a hearing
by way of their February 23, 2007 letter to the court. In any
event, nothing in the Federal Rules of Civil Procedure obliged
the court to hold a hearing in that situation; thus, the court
could not have abused its discretion in declining to do so.

                              33


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00204-CR

Barbara Christine Vidlund, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL

DISTRICT
NO. 92-686-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant's brief raises this single issue: "Does appellant have a right to appeal an order
of the trial court adjudicating guilt, following appellant's plea of 'true,' during a period of deferred
adjudication probation, where the State and appellant had an agreement as to punishment and the trial court
refused to follow such agreement[?]" See Tex. R. App. P. 38.1(e).  We will answer this question in the
negative and affirm the judgment of conviction.

On September 28, 1993, after accepting appellant's guilty plea to an indictment accusing
her of indecency with a child, the district court found that the evidence substantiated her guilt, deferred
further proceedings, and placed appellant on community supervision.  On March 4, 1997, the court
conducted a hearing on the State's motion to revoke and adjudicate.  Appellant pleaded true to one of the
alleged violations and testified to certain mitigating circumstances.  The prosecutor informed the court that
the State had agreed to recommend that appellant's probation be extended for one year with outpatient
treatment for her drug problems.  At the conclusion of the hearing, the court revoked supervision,
adjudicated guilt, and sentenced appellant to imprisonment for sixteen years.  Appellant did not ask to
withdraw her plea of true nor did she file a motion for new trial.
Appellant argues that her plea of true was prompted by the State's agreement to
recommend that her probation be continued.  No appeal may be taken, however, from the trial court's
determination to proceed to adjudication.  Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992);
Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Daniels v. State, 615 S.W.2d 771
(Tex. Crim. App. 1981); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1998).  Whatever
the circumstances of appellant's plea at the adjudication hearing, the statutory prohibition on appeal from
the decision to adjudicate is absolute.  See Phynes, 828 S.W.2d at 2 (may not appeal alleged violation of
constitutional rights); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (decision to
proceed with adjudication of guilt is one of absolute unreviewable discretion).  After adjudication of guilt,
all proceedings, including the appeal, continue as if the adjudication of guilt had not been deferred.  Art.
42.12, § 5(b).  For the same reason, we cannot review appellant's contention that her testimony at the
adjudication hearing established that her violation of the conditions of her supervision was justified by
necessity.  See Tex. Penal Code Ann. § 9.22 (West 1994).
We also note that appellant cannot complain that the sixteen year sentence exceeds that
to which she had agreed.  This is an appeal from appellant's conviction for indecency with a child, and the
relevant plea bargain is the one to which appellant agreed before pleading guilty.  As the Court of Criminal
Appeals has written, "when a prosecutor recommends deferred adjudication in exchange for a defendant's
plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding
to an adjudication of guilt, he later assesses any punishment within the range allowed by law."  Watson v.
State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996).  Before placing appellant on deferred adjudication
supervision, the district court admonished her that she could be sentenced to twenty years in prison if she
violated the supervisory conditions.  The punishment assessed by the district court after adjudicating
appellant guilty did not amount to a refusal to implement the plea bargain.  Id.
The judgment of conviction is affirmed.

		Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed:   April 2, 1998
Do Not Publish

YLE="font-size: 11pt">FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL

DISTRICT
NO. 92-686-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant's brief raises this single issue: "Does appellant have a right to appeal an order
of the trial court adjudicating guilt, following appellant's plea of 'true,' during a period of deferred
adjudication probation, where the State and appellant had an agreement as to punishment and the trial court
refused to follow such agreement[?]" See Tex. R. App. P. 38.1(e).  We will answer this question in the
negative and affirm the judgment of conviction.

On September 28, 1993, after accepting appellant's guilty plea to an indictment accusing
her of indecency with a child, the district court found that the evidence substantiated her guilt, deferred
further proceedings, and placed appellant on community supervision.  On March 4, 1997, the court
conducted a hearing on the State's motion to revoke and adjudicate.  Appellant pleaded true to one of the
alleged violations and testified to certain mitigating circumstances.  The prosecutor informed the court that
the State had agreed to recommend that appellant's probation be extended for one year with outpatient
treatment for her drug problems.  At the conclusion of the hearing, the court revoked supervision,
adjudicated guilt, and sentenced appellant to imprisonment for sixteen years.  Appellant did not ask to
withdraw her plea of true nor did she file a motion for new trial.
Appellant argues that her plea of true was prompted by the State's agreement to
recommend that her probation be continued.  No appeal may be taken, however, from the trial court's
determination to proceed to adjudication.  Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992);
Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Daniels v. State, 615 S.W.2d 771
(Tex. Crim. App. 1981); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1998).  Whatever
the circumstances of appellant's plea at the adjudication hearing, the statutory prohibition on appeal from
the decision to adjudicate is absolute.  See Phynes, 828 S.W.2d at 2 (may not appeal alleged violation of
constitutional rights); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (decision to
proceed with adjudication of guilt is one of absolute unreviewable discretion).  After adjudication of guilt,
all proceedings, including the appeal, continue as if the adjudication of guilt had not been deferred.  Art.
42.12, § 5(b).  For the same reason, we cannot review appellant's contention that her testimony at the
adjudication hearing established that her violation of the conditions of her supervision was justified by
necessity.  See Tex. Penal Code Ann. § 9.22 (West 1994).
We also note that appellant cannot complain that the sixteen year sentence exceeds that
to which she had agreed.  This is an appeal from appellant's conviction for indecency with a child, and the
relevant plea bargain is the one to which appellant agreed before pleading guilty.  As the Court of Criminal
Appeals has written, "when a prosecutor recommends deferred adjudication in exchange for a defendant's
plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding
to an adjudication of guilt, he later assesses any punishment within the range allowed by law."  Watson v.
State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996).  Before placing appellant on deferred adjudication
supervision, the district court admonished her that she could be sentenced to twenty years in prison if sh