McClain-Leazure et al v. Colvin

Filing 8

ORDER denying 2 Motion to dismiss and remand, and her alternative motion for default; granting 7 Motion for Leave to File Surreply. Signed by District Judge William H. Steele on 7/17/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIM MCCLAIN-LEAZURE, et al.,
Plaintiffs,
v.
CAROLYN COLVIN, etc.,
Defendant.

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) CIVIL ACTION 17-0144-WS-MU
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ORDER

This matter is before the Court on the plaintiff’s motion to dismiss and
remand and alternative motion for default. (Doc. 2).1 The parties have filed briefs
in support of their respective positions, (Docs. 2, 4, 5, 7-1),2 and the motions are
ripe for resolution.
The plaintiff filed this action in Alabama state court, alleging several statelaw claims against the acting Commissioner of the Social Security Administration
and several fictitious defendants, all arising out of her employment as an
administrative law judge. (Doc. 1-1). The action was filed on February 3, 2017
and removed on April 6, 2017. The plaintiff argues that the removal was untimely
and that the defendant was in default before removal was accomplished.
The parties are in agreement regarding the chronology of events. Process
was sent by certified mail to the Commissioner’s published business address and
was received by the mail services center on February 10, 2017. Process was

1

There are two plaintiffs but, because William Leazure brings only a derivative
claim for loss of consortium, (Doc. 1-1 at 15-16), for convenience the Court will use the
singular term.
2

For the reasons stated therein, the defendant’s unopposed motion for leave to file
a surreply, (Doc. 7), is granted.

forwarded to the Office of General Counsel, which received the package on or
about March 2, 2017. Process was then forwarded to the Regional Office of
General Counsel, which received the package on March 13, 2017. (Doc. 1 at 4;
Doc. 4 at 4; Doc. 5 at 1). The defendant removed the action pursuant to 28 U.S.C.
§ 1442(a)(1) on April 6, 2017. The instant motion was filed on May 12, 2017.3
“The notice of removal of a civil action or proceeding shall be filed within
30 days after the receipt by the defendant, through service or otherwise, of a copy
of the initial pleading ….” 28 U.S.C. § 1446(b)(1).4 “[W]e hold that a named
defendant’s time to remove is triggered by simultaneous service of the summons
and complaint, or receipt of the complaint, ‘through service or otherwise,’ after
and apart from service of the summons, but not by mere receipt of the complaint
unattended by any formal service.” Murphy Brothers, Inc. v. Michetti Pipe

3

“A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of the notice of
removal under section 1446(a).” 28 U.S.C. § 1447(c). “Petitioning for removal outside
the 30-day window constitutes a defect in removal procedure which may be waived by
failure to timely file a motion for remand.” Wilson v. General Motors Corp., 888 F.2d
779, 781 n.1 (11th Cir. 1989). The plaintiff’s motion to remand was filed 36 days after
the notice of removal and was thus untimely as to procedural defects. However, because
the defendant does not mention Section 1447(c) or ask the Court to deny the plaintiff’s
motion on that basis, the Court proceeds to consider the merits of the motion. But see In
re: Bethesda Memorial Hospital, Inc., 123 F.3d 1407, 1410 (11th Cir. 1997) (“[W]e
conclude that an order remanding on procedural grounds … upon an untimely motion …
is not authorized by § 1447(c) ….”).
4

There is reason to doubt whether Section 1446(b) applies to removals pursuant
to Section 1442(a). See Loftin v. Rush, 767 F.2d 800, 805 (11th Cir. 1985) (“While we
emphatically disapprove of the government’s tardiness, we will not order this cause
remanded on technical grounds,” even though the plaintiff timely sought remand due to
non-compliance with Section 1446(b)); Reese v. South Florida Water Management
District, 853 F. Supp. 413, 415 (S.D. Fla. 1994) (citing Loftin) (“The federal interests
underlying § 1442 and the policy that § 1442 be liberally construed to effectuate those
purposes warrant consideration of the removal petition despite the government’s tardiness
and without resolution of whether the proper waiver of the timeliness issue ever
occurred.”). Because the defendant makes no argument that Section 1446(b) does not
apply, the Court will not further consider that possibility.

2

Stringing, Inc., 526 U.S. 344, 347-48 (1999). The question presented is whether
and when the plaintiff properly served process.
The plaintiff argues that service was effected on March 2, 2017 pursuant to
Alabama Rule of Civil Procedure 4(c)(8). That provision reads as follows:
(8) LOCAL GOVERNMENTS AND OTHER GOVERNMENTAL
ENTITIES. Upon a county, municipal corporation, or any other
governmental entity not previously mentioned, or an agency thereof,
by serving the chief executive officer or the clerk, or other person
designated by appointment or by statute to receive service of process,
or upon the attorney general of the state if such service is accompanied
by an affidavit of a party or the party’s attorney that all such persons
described herein are unknown or cannot be located.
The plaintiff characterizes the defendant as the “chief executive officer” of the
Social Security Administration, such that her certified mailing
effected good service under Rule 4(c)(8) as of February 10, 2017. (Doc. 5 at 2).
The defendant responds that Rule 4(c)(8) does not apply to service on the
United States, its agencies or officers. (Doc. 7-1 at 2). The Court agrees for the
following reasons. First, the rule is titled, “Local Governments and other
Governmental Entities,” which indicates the rule is limited to governments and
governmental entities within a state.5 Second, the commentary to the provision
states that it “governs service on all types of local governmental entities,”6 which
appears expressly to limit the rule’s scope to local bodies. Third, the only
governmental units listed in the rule are counties and municipalities, reflecting the
rule’s focus on local defendants. Fourth, the rule provides for alternative service
of process on the state attorney general – a procedure that makes little if any sense
in the context of a federal defendant. Fifth, the rule “is patterned after” certain

5

See, e.g., Montgomery County Board of Education v. Addison, 3 So. 3d 885,
885-86 (Ala. Civ. App. 2008) (Rule 4(c)(8) “establishes the procedure for service of
process” on a county school board).
6

Committee comments to 2004 amendments (emphasis added).
3

Arkansas and New Mexico rules,7 which rules plainly do not address federal
defendants.8 The plaintiff offers no argument in defense of her contrary position.
Because the plaintiff has failed to show effective service of process,9 the
30-day clock of Section 1446(b) did not expire prior to removal.10 And without
service of process, the plaintiff cannot obtain entry of default. 10 Charles Alan
7

Id.

8

The Alabama rule is patterned after Arkansas Rule of Civil Procedure 4(d)(7).
Because Rule 4(d)(6) expressly addresses service on “the United States or any officer or
agency thereof,” Rule 4(d)(7) cannot extend to service on federal defendants.
The Alabama rule is also patterned after what was then New Mexico Rule of Civil
Procedure 1-004(F)(4)-(5). According to the official committee commentary, these
provisions are now found within Rule 1-004(H), where they remain “substantively the
same” as when housed in Rule 1-004(F). Because Rule 1-004(H) by its terms applies
only to service “upon state and political subdivisions,” it cannot extend to service on
federal defendants.
9

The Court has stated that “[t]he removing defendant’s burden extends to
demonstrating, when properly challenged, its compliance with the procedural
requirements for removal.” Tucker v. Equifirst Corp., 57 F. Supp. 3d 1347, 1349 (S.D.
Ala. 2014). Because the timeliness of removal depends on whether and when the
defendant was served with process, and because it is the plaintiff’s responsibility to effect
service, a plaintiff does not “properly challenge” timeliness unless and until she
demonstrates such service.
10

The plaintiff asserts the defendant has conceded that service was perfected no
later than March 2, 2017. (Doc. 5 at 4). The defendant has not done so. The defendant
argues that the plaintiff was obligated to perfect service in accordance with Federal Rule
of Civil Procedure 4(i), which requires: (1) delivery of process to the local United States
Attorney; (2) sending a copy of process to the Attorney General; and (3) sending a copy
of process to the Commissioner. (Doc. 4 at 3). The defendant identifies 20 C.F.R. §
423.1(b), which calls for process to be served on the Commissioner by mail sent to
General Counsel, as providing the proper means of satisfying the third of these
requirements. (Doc. 4 at 3-4). Even if the agency’s internal forwarding of process to the
General Counsel’s office on March 2, 2017 satisfied Section 423.1(b), the first two
requirements of Rule 4(i) were not met thereby, and the defendant asserts without
challenge that the United States Attorney was not notified of this action before March 16,
2017. (Doc. 1 at 4). The Court does not adopt the defendant’s position that service of
process in state court is governed by federal rules, but it does confirm that the defendant
has not conceded effective service on March 2, 2017 or at any other time.

4

Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 at 14 (3rd ed.
1998) (“Before a default can be entered, … the party must have been effectively
served with process.”).
In her reply brief, the plaintiff raises a new argument: that the defendant
“failed to raise any allegation of a colorable federal defense.” (Doc. 5 at 4).
District courts, including this one, ordinarily do not consider arguments raised for
the first time on reply,11 and the plaintiff offers no reason the Court should stray
from the usual rule. The Court therefore will not consider the argument at this
time, but it does not preclude the plaintiff from raising the argument by subsequent
motion.
For the reasons set forth above, the plaintiff’s motion to dismiss and
remand, and her alternative motion for default, are denied.
DONE and ORDERED this 17th day of July, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

11

See Park City Water Authority v. North Fork Apartments, L.P., 2009 WL
4898354 at *1 n.2 (S.D. Ala. 2009) (citing cases from over 40 districts applying the rule
in 2009 alone). The Eleventh Circuit follows a similar rule. E.g., Herring v. Secretary,
Department of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005).
5