Samuels v. Two Farms, Inc.

Filing 14

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/18/10. (sat, Chambers)

Samuels v. Two Farms, Inc.

Doc. 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CLIVELLA D. SAMUELS v. TWO FARMS, INC. : : : : : MEMORANDUM OPINION Presently pending and ready for resolution in this case is Plaintiff's motion to remand. (Paper 10). The court now rules Civil Action No. DKC 10-2480

pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiff's motion will be denied. I. Background On May 20, 2010, Plaintiff Clivella D. Samuels filed suit against Prince Defendant George's Two Farms, Inc. in the Circuit complaint Court for

County.

Plaintiff's

alleges

employment discrimination under Title VII and certain associated state-law torts. of $1,000,000. (Paper 2 ¶¶ 28-52). Plaintiff seeks damages

(Id. at 15).

On May 24, Plaintiff attempted to serve the summons and complaint on Defendant by sending a copy of those documents via certified agent, mail with return receipt to Defendant's Donnelly registered ¶ 1). card

Alan

Abramowitz. not check

(Paper the box

10-1, on

Aff.,

Plaintiff

did

the

certified

mail

Dockets.Justia.com

requesting "restricted delivery."

(Paper 13, at 5).

Four days

later, on May 28, Abramowitz's secretary signed for the letter containing the complaint and summons. Aff., ¶ 3). For more than 100 days, the case sat quietly in state (Paper 12, Abramowitz

court; Defendant did not file an answer and Plaintiff did not move for an order of default.1 Defendant filed an answer to Then, on September 9, 2010, Plaintiff's complaint in state In

court and removed the case to this court.

(Paper 1).

response to this Court's standing order on removal, Defendant indicated that Plaintiff had not properly served it via

certified mail with restricted delivery. moved to remand on September 24, 2010. II. Analysis

(Paper 9).

Plaintiff

(Paper 10).

Title 28 U.S.C. § 1446(b) provides defendants with a clear deadline for filing notices of removal: The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if

Plaintiff could have moved for an order of default after 30 days. See Md. Rule 2-613(b) (plaintiff may move for default after the time for pleading has expired); Md. Rule 2-321(a) (parties generally have 30 days to file an answer). 2

1

such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. Plaintiff contends that Defendant failed to comply with this deadline because it filed its notice of removal more than 100 days later. (Paper 10, at 7-8). Defendant responds that the

30-day clock found in Section 1446(b) did not start running until it filed served. its answer (Paper in 11, state at court, as it the was never

properly

2-7).

Thus,

critical

question is whether the May 24 service was sufficient, rendering Defendant's removal untimely. State law determines whether service while the case was before a state court was proper. F.Supp.2d 738, 745 (D.W.Va. 2009). See, e.g., Wolfe v. Green, 660 The Maryland Rules allow for

the service of process via certified mail "requesting Restricted Delivery." See Md. Rule 2-121(a)(3). Plaintiff in this case

does not argue that she requested restricted delivery, and the "green card" Plaintiff used to mail the letter reflects that she did not. does not (Paper 13, at 5). actually require Instead, she argues "[t]he Rule service of process by restricted

delivery,"2 and notes that, from all appearances, the registered

This argument may be easily dispensed with. The Rule clearly requires service to be made "by certified mail requesting: `Restricted Delivery--show to whom, date, address of delivery.'" Md. Rules 2-121(a)(3). Plaintiff did not request that form of delivery, so service was deficient. Moreover, one 3

2

agent actually received the complaint and summons. at 4-5).

(Paper 10,

It might be tempting to excuse the minor deficiency in Plaintiff's attempted service, particularly because Defendant

apparently received actual notice.

Cf. Colleton Prep. Acad.,

Inc. v. Hoover Universal, Inc., 616 F.3d 413, 421 n.9 (4th Cir. 2010) (finding, where under the South Carolina "did law, in that fact failure But, service receive to was the

sufficient suitpapers, restricted

defendant

notwithstanding delivery

[plaintiff's] mail").

employ South

certified

unlike

Carolina law, there is nothing in Maryland law that suggests that the rules of service may be liberally construed. Maryland service; courts they seem treat to take a strict, service narrow of Indeed, to a

approach [as]

"defective

process

jurisdictional defect and actual knowledge of the proceedings on the part of the defendant will not cure that defect." Lohman v.

Lohman, 331 Md. 113, 130 (1993) (citations omitted); see also, e.g., Brown v. Am. Institutes for Research, 487 F.Supp.2d 613, 617 (D.Md. 2007) ("Plaintiff's repeated attempts at service by certified restricted mail were invalid for failure of to comply with Rule the 2-

delivery

requirements

Maryland

might view the Plaintiff's failure to move for an order of default as an implicit acknowledgment that service was indeed deficient. 4

121(a)(3).").

Many courts apply the same methodology.

See,

e.g., 3A Norman J. Singer & J.D. Shambie Singer,

Sutherland

Statutory Construction § 67:4 (6th ed. 2010) ("Statutes providing for service of process have been customarily given strict

construction in order to guard against the risk that innocent persons forfeit their rights without a fair hearing in the

mistaken belief that they had not been brought into the court's jurisdiction."). The Supreme Court has also cautioned that the

30-day period for removal is not triggered if the defendant receives a complaint unattended by "formal service." Murphy

Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). In sum, all applicable authorities suggest that

Defendant's mere receipt of the defectively served complaint and summons removal. Here, however, Defendant complicated the matter by filing an answer in state court. Plaintiff notes that, under Maryland normally would not trigger the 30-day period for

law, a failure to raise the insufficiency of service of process on a motion to dismiss waives the defense. (Paper 10, at 7).

Plaintiff reasons that Defendant consequently waived its right to challenge the sufficiency of process by filing an answer in state court. It defendant is (Id.). true that the filing a of an answer on prevents a

from

challenging

complaint 5

based

insufficient

service.

See

Chapman

v.

Kamara,

356

Md.

426,

438

(1999)

("[W]hen an attorney enters an authorized appearance on behalf of a party, this act has the effect of waiving any defects of service upon the defendant. Once a party files an answer

without raising the defense of insufficient service of process, that defense ordinarily is waived."). apparent authority for the notion that Even so, there is no waiver retroactively

cures the prior, deficient service for the purposes of Section 1446(b). Court's Indeed, that idea appears contrary to the Supreme reasoning in Murphy Brothers. In determining what

triggers the 30-day period in 1446(b), the Court focused heavily on the notion is the that the time moment when when a defendant the court receives can the

summons

first

exercise

jurisdiction over that party. Absent that jurisdictional

Murphy Bros., 526 U.S. at 350. the court was unwilling to

hook,

start the 30-day clock.

Id. at 350-53.

In the situation where

a defendant waives sufficiency of service, his first appearance or filing is of 412 the the Md. first court. 616, 624 moment See where Flanagan he v. submits Dep't court to of the Human no

jurisdiction Resources,

(2010)

("[T]he

has

jurisdiction over [a defendant] until such service is properly accomplished, or is waived by a voluntary appearance by the defendant."). to allow the It would seem to run counter to Murphy Brothers time for removal 6 to start running before the

jurisdictional DiLoreto v.

flashpoint

of

that F.App'x

first 747,

submission.3 750 (3d Cir.

Accord 2009)

Costigan,

351

(construing Murphy Brothers to hold that "the removal period for a defendant does not or begin until Fire to that Ins. run until that defendant is

properly Borchers

served v.

defendant Co., No.

waives

service"); 2010 WL

Standard

C-10-1706,

2608291, at *2 (N.D.Cal. June 25, 2010) (same); Granovsky v. Pfizer, Inc., 631 F.Supp.2d 554, 559 (D.N.J. 2009) (same); Brown v. Bristol-Myers Squibb Co., No. A 402CV301LN, 2002 WL 34213425, at *4 (S.D.Miss. Nov. 2, 2002) (same, listing cases). Plaintiff

misconstrues the waiver doctrine when he suggests that it not only forecloses a defendant from challenging the court's

jurisdiction on the basis of faulty service, but that it also bars a defendant from questioning when jurisdiction attached. Jurisdiction attached here on September 9, 2010. Because

Defendant filed its notice of removal the same day, that notice was timely.

Plaintiff's view would also be contrary to the approach found in the Federal Rules of Civil Procedure. Under those rules, when a defendant voluntarily waives service under Rule 4(d), the "rules apply as if a summons and complaint had been served at the time of filing the waiver." Fed.R.Civ.P. 4(d)(4) (emphasis added). 7

3

III. Conclusion For denied. the foregoing reasons, Plaintiff's motion will be

A separate order will follow.

/s/ DEBORAH K. CHASANOW United States District Judge

8