Miranda et al v. Rodriquez

Filing 13

ORDER granting 2 Motion to Dismiss; denying 10 Motion to Remand. Ordered by Judge Hugh Lawson on 01/02/2009. (dhc)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S TA DIVISION AR TU R O MIRANDA, et al., P l a in t iffs , v. J O S E RODRIGUEZ a/k/a JOSE V AL E S Q U E Z , D e fe n d a n t. : : : : : : : : : :

C ivil Action No. 7 :0 8 - C V - 9 3 ( H L )

O R D ER
T hi s matter is before the Court on Plaintiffs' Motion to Remand (Doc. 10) and D e fe nd a nt's Motion to Dismiss (Doc. 2). For the following reasons, Plaintiffs' Motion i s denied and Defendant's Motion is granted. I. B AC K G R O U N D T hi s case arises out of a single-vehicle automobile accident that occurred on J ul y 3, 2006, in Tift County, Georgia. Plaintiffs were passengers in the automobile, a nd Defendant Jose Rodriguez allegedly was the driver. On September 8, 2006, P l a i nti ffs filed suit in this Court against Rodriguez and other Defendants. In their C o m p la int , Plaintiffs alleged that Rodriguez was a resident of Georgia. On January 2 2 , 2008, this Court dismissed Plaintiffs' claims against Defendant Rodriguez for fa i l ure to perfect service.

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O n June 6, 2008, in the State Court of Tift County, Plaintiffs again filed suit a g a i ns t Defendant Rodriguez. This time, however, Plaintiffs alleged that Rodriguez w a s not a Georgia resident at the time of the accident at issue. On July 18, 2008, D e fe nd a nt filed in the State Court his Answer and a Motion to Dismiss based on i ns uffi c i e nt service of process. On that same day, Defendant filed in this Court a N o ti c e of Removal (Doc. 1) and a Motion to Dismiss for insufficient service of p ro c e s s . Plaintiffs did not respond to Defendant's Motion to Dismiss. On August 18, 2 0 0 8 , Plaintiffs filed a Motion to Remand. II. D IS C U S S I O N A. Motion to Remand P l a i nti ffs contend that Defendant waived his right to remove this action by fi l i ng an Answer and Motion to Dismiss in State Court before filing his Notice of R e m o v a l . A defendant may waive his right to remove a state court action by taking s o m e "`substantial offensive or defensive action in the state court action indicating a willingness to litigate in that tribunal before filing a notice of removal with the fe d e ra l court.'" Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1 2 4 4 , 1246 (11th Cir. 2004) (quoting 14B Charles A. W ri g ht, et al., Federal Practice a nd Procedure § 3721 (2003)). The defendant's "intent to waive the right to remove to federal court and to submit to state court jurisdiction must be clear and une q ui v o c a l , and the defendant's actions must be inconsistent with the right to re m o v e ." 16 Moore's Federal Practice § 107.18[3][a], 107-174 (3d ed. 2008). 2

W he the r the defendant's defensive actions demonstrated a clear and unequivocal i nte nt to litigate the case in state court is determined on a case-by-case basis. Y us e fza d e h, 365 F.3d at 1246. H e r e , Defendant filed in the State Court an Answer and a Motion to Dismiss o n the same day he filed his Notice of Removal in this Court. He did not schedule a hearing on his Motion to Dismiss or take any other affirmative action to obtain a rul i ng on that Motion by the State Court. In two separate cases with facts nearly i d e nti c a l to these, the Eleventh Circuit held that the defendants did not waive their ri g ht to remove by filing an answer and a motion to dismiss. See Yusefzadeh, 365 F .3 d at 1246-47; Cogdell v. W y e th, 366 F.3d 1245, 1249 (11th Cir. 2004). As in tho s e cases, this Court finds that Defendant's actions in the State Court did not e v i nc e a clear and unequivocal intent to waive his right to remove. B. Motion to Dismiss D e fe nd a nt moves to dismiss Plaintiffs' Complaint for insufficient service of p ro c e s s . In their Complaint, Plaintiffs contend that Defendant is a nonresident m o to r i s t who can be served with process under the Georgia Nonresident Motorist A c t. The Act provides that the Georgia Secretary of State is the agent for service of p ro c e s s for nonresident motorists. O.C.G.A. § 40-12-2. Service on the Secretary i s sufficient service on the nonresident motorist if: no ti c e of such service and a copy of the complaint and process a re ...s e n t by registered or certified mail or statutory overnight delivery b y the plaintiff to the defendant, if his address is known, and the 3

d e fe nd a nt's return receipt and the plaintiff's affidavit of compliance with thi s Code section are appended to the summons or other process and fi l e d ...i n the case in the court wherein the action is pending. Id. According to Defendant, Plaintiffs have not complied with the Act because (1) the y sent their certified mailing to an address other than Defendant's, and (2) P l a i nti ffs did not file the return receipt. Plaintiffs did not respond to Defendant's M o ti o n. T he Nonresident Motorist Act is "in derogation of the common law, and must b e strictly construed and fully complied with before a court of a state other than that o f the defendant's residence may obtain jurisdiction of his person." Cheek v. Norton, 1 0 6 Ga. App. 280, 283, 126 S.E.2d 816, 818 (1962). "W he re the defendant's a d d re s s is unknown and cannot be ascertained there is no compliance with the s ta tute , and the courts of this State cannot obtain jurisdiction to render a judgment i n personam against such nonresident defendant." Id. at 281, 126 S.E.2d at 817. In this case, Plaintiffs filed an Affidavit of Compliance as required by the Act. In the Affidavit, Plaintiffs assert that they sent a copy of the Summons and Complaint to the following last known address: M r. Jose Rodriguez a/k/a Jose Valesquez c /o Ismael Mendez Lopez P .O . Box 117 C l e w i s to n, FL 33440 D e fe nd a nt contends, however, that this has never been his mailing address. In s up p o rt of this assertion, Defendant filed with his Motion to Dismiss the Affidavit of

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O s c a r Galban. In the Affidavit, Galban asserts that P.O. Box 117 is registered to hi m , that nobody has access to it except him, and that no one by the name of Jose R o d r i g ue z a/k/a Jose Valesquez or Ismael Mendez Lopez has ever received mail thro ug h that box. Although Galban asserts that he knows Lopez, he avers that he d o e s not know anybody by the name of Jose Rodriguez or Jose Valesquez. P l a i nti ffs have not contested Galban's assertions as they did not respond to D e fe nd a n t's Motion to Dismiss; therefore, the Court accepts the assertions in G a l b a n's Affidavit as true and finds that P.O. Box 117, Clewiston, Florida, was not D e fe nd a nt's mailing address. See Familia De Boom v. Arosa Mercantil, S.A., 629 F .2 d 1134, 1139 (5th Cir. 1980)1 (holding that when service of process is challenged, the party on whose behalf service was made bears the burden of proving its validity). B e c a us e Plaintiffs did not mail a copy of the Summons and Complaint to Defendant's a d d re s s , the Court concludes that Plaintiffs have not properly effected service under the Nonresident Motorist Act.2 Defendant's Motion to Dismiss is therefore granted. III. C O N C L U S IO N F o r the foregoing reasons, Plaintiffs' Motion to Remand is denied and

The United States Court of Appeals for the Eleventh Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). This body of precedent is binding unless and until overruled by the Eleventh Circuit en banc. Id. Plaintiffs also failed to comply with the Act because they did not file Defendant's return receipt; however, the Court need not address this issue in detail because Plaintiffs' failure to send the mailing to the proper address is a sufficient basis for dismissal. 5
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D e fe nd a nt's Motion to Dismiss is granted.

S O ORDERED, this the 2nd

day of January, 2009

s/H u g h Lawson HUGH LAWSON, Judge
d hc

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