Smith et al v. Corcoran et al

Filing 28

ORDER denying 24 Motion for Reconsideration ; granting 26 Motion to Strike. Signed by Judge Timothy M. Burgess on 3/19/14. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

BILLY DEAN SMITH, et al.,
Plaintiffs,
vs.
ROBERT COCORAN, et al.,
Defendants.

Case No. 1:13-cv-00010-TMB

ORDER DENYING SECOND MOTION FOR RECONSIDERATION
Billy Dean Smith and Jacob Lee Anagick, self-represented prisoners, have
filed a Second Motion for Reconsideration of the Court’s denial of their requests
to remand. 1 The Plaintiffs have shown that, when they sent a summons and
complaint to Robert Corcoran at Lemon Creek Correctional Center by restricted
delivery mail, the return receipt was signed by “P. Modene” on November 18,
2013. 2 The Plaintiffs rely upon Alaska Rule of Civil Procedure 4(h), which states:
Service of Process by Mail. In addition to other methods of service
provided for by this rule, process may also be served within this
state . . . by registered or certified mail, with return receipt requested,
upon an individual . . . In such case, copies of the summons and
complaint or other process shall be mailed for restricted delivery only
to the party to whom the summons or other process is directed or to
the person authorized under federal regulation to receive the party's
restricted delivery mail. All receipts shall be so addressed that they
are returned to the party serving the summons or process or the
party's attorney. Service of process by mail under this paragraph is
complete when the return receipt is signed.

1

Docket 24.

2

Docket 6-1 at 3.

However, 28 U.S.C. § 1446(b)(1), provides that removal is appropriate
“within 30 days after the receipt by the defendant, through service or otherwise,
of a copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based[.]” For the reasons explained in its orders denying
the Plaintiffs’ requests for remand, 3 the January 17, 2014 removal of this case
was “within 30 days after the receipt by [Robert Corcoran], through service or
otherwise,” 4 on November 28, 2014, of the Plaintiffs’ state court complaint. 5
IT IS THEREFORE ORDERED:
1. The Second Motion for Reconsideration, at Docket 24, is DENIED.
2. The unopposed 6 Motion to Strike, at Docket 26, is GRANTED.
DATED at Anchorage, Alaska this 19th day of March, 2014.
TIMOTHY M. BURGESS
United States District Judge

3

Dockets 15, 22.

4

28 U.S.C. § 1446(b)(1) (emphasis added); see also Smith v. Frank, 923 F.2d 139, 142
(9th Cir. 1991) (recognizing that federal courts should not allow for “an interpretation
[which] would give [a] local rule an impermissible jurisdictional character”); Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) (“[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.”).
5

See Fed.R.Civ.P. 6(a) (computation of time periods).

6

Docket 27.

1:13-cv-00010-TMB, Smith v. Corcoran
Order Denying Second Motion for Reconsideration
Page 2 of 2