Sindi v. El-Moslimany et al

Filing 33

Judge George A. OToole, Jr: OPINION AND ORDER entered denying 4 Motion to Remand to State Court; granting 17 Motion to Set Aside Default (Danieli, Chris)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-10798-GAO
HAYAT SINDI,
Plaintiff,
v.
SAMIA EL-MOSLIMANY and ANN EL-MOSLIMANY,
Defendants.

OPINION AND ORDER
March 26, 2014
O’TOOLE, D.J.
This action arises from a personal dispute between the plaintiff, Hayat Sindi, and the
defendants, Samia El-Moslimany and Ann El-Moslimany. The complaint, originally filed in state
court, asserts claims of defamation, tortious interference with contractual relationships, tortious
interference with prospective business relations, and intentional infliction of emotional distress.
The defendants removed the case here, claiming federal jurisdiction on the basis of diversity of
citizenship. The plaintiff contends that the defendants’ notice of removal was untimely and now
moves to remand this action to state court.
To timely remove a civil action to federal district court, a defendant must file a notice of
removal within thirty days after being served with the complaint. 28 U.S.C. § 1446(b)(1). The
plaintiff claims to have served defendant Samia El-Moslimany with the complaint, civil action
cover sheet, and summonses (“Complaint Package”) by USPS certified mail and UPS overnight
mail delivered to her residence in Burien, Washington, on January 25, 2013. The plaintiff asserts
that on information and belief, defendant Ann El-Moslimany lives at the Burien residence with

her daughter, Samia. 1 The plaintiff also claims to have sent the Complaint Package to Samia ElMoslimany via email. The defendants filed their notice of removal on April 8, 2013, 72 days
after the alleged date of service, well beyond the permitted time. The defendants contend that
their notice of removal was timely filed nonetheless because the plaintiff’s service was invalid,
as (1) the plaintiff did not file a USPS return receipt for the complaint package sent to Samia ElMoslimany, and (2) the USPS package sent to Ann El-Moslimany was returned as undeliverable.
The defendants assert that Ann El-Moslimany does not reside at the Seattle address where the
Complaint Package addressed to her was sent and has not resided there for the past twenty-seven
years. (Aff. of Samia El-Moslimany at ¶ 3 (dkt. no. 8).)
In determining the validity of service in state court prior to removal, the law of the state
under which service was effected must be applied. See In re Pharm. Indus. Average Wholesale
Price Litig., 431 F. Supp. 2d 98, 108 (D. Mass. 2006); Frankston v. Denniston, 376 F. Supp. 2d
35, 39 (D. Mass. 2005). Massachusetts Rule of Civil Procedure 4(e) authorizes service by “any
form of mail addressed to the person to be served and requiring a signed receipt.” Proof of
service requires a receipt signed by the addressee or such other evidence of personal delivery.
Failure to make proof of service, however, “does not affect the validity of the service.” Mass. R.
Civ. P. 4(f).
Service was effective as to defendant Samia El-Moslimany. The plaintiff employed both
USPS certified mail and UPS overnight mail. Although Samia El-Moslimany now claims that
she currently resides in Saudi Arabia and maintains a home in Washington, she does not dispute
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In his Affidavit of Proof of Service filed in state court, the plaintiff’s attorney Michael Allen
stated that he sent the Complaint Package to Samia El-Moslimany at her address in Burien,
Washington, and separately to Ann El-Moslimany at her address in Seattle, Washington, via UPS
overnight mail and by USPS certified mail. He asserts that the Complaint Package sent via
certified mail to Ann El-Moslimany in Seattle, Washington, was returned as undeliverable. (Mot.
to Remand, Ex. 1 at 19-20 (dkt. no. 4-1).)
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that the Burien address to which the Complaint Package was sent was an appropriate place for
her to receive service. The plaintiff also sent a copy of the complaint and summons to Samia ElMoslimany by email. In fact, on January 27, 2013, two days after service, Samia El-Moslimany
posted an image of the civil action cover sheet on the Internet. She also acknowledged in an
email sent no later than February 26, 2013, that she had received an email from plaintiff’s
counsel informing her of the lawsuit. Under Massachusetts law, valid service was effected as to
defendant Samia El-Moslimany as of January 25, 2013, and under 28 U.S.C. § 1446(b)(1) her
notice of removal should have been filed within 30 days of that date.
As to defendant Ann El-Moslimany, it is unclear whether she ever was properly served.
The plaintiff claims that the two defendants reside together at the residence in Burien, but even if
that were true, the packages sent to that location were addressed only to Samia El-Moslimany. I
conclude that the plaintiff has not carried her burden of showing effective service as to Ann ElMoslimany.
The plaintiff argues that a defendant who has not been formally served cannot file a
notice of removal, since the 30-day time period starts running only after proper service. But
service is not a necessary prerequisite to removal, especially where another defendant has
already been served. See Sutler v. Redland Ins. Co., 2012 WL 5240124, at *2 (D. Mass. 2012)
(“Numerous federal courts have held that formal service is not required before a defendant can
remove a case.”) (collecting cases).
I conclude that under the circumstances, Ann El-Moslimany’s notice of removal was
timely filed. The remaining question is whether Samia El-Moslimany could, after her 30-day
removal period had expired, consent to her co-defendant’s later notice of removal. I agree with
the courts who have taken the “last-served defendant” approach, which allows the first-served

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defendant to consent to removal during the thirty-day period applicable to the later-served
defendant’s filing of the notice of removal, even after the expiration of the 30-day period
applicable to the first-served defendant. See, e.g., BCCTC Assocs., Inc. v. Summerdale/AAHFI,
L.P., 656 F. Supp. 2d 208, 214 (D. Mass. 2009).
There lies an additional hurdle for the defendants, however. After the defendants filed
their notice of removal here but before they filed notice in state court, the state court entered a
default against both defendants for failure to serve a responsive pleading or otherwise defend
during the applicable time period. The defendants now move this Court to set aside the default.
Under First Circuit law, “the jurisdiction of the federal court attaches as soon as the petition for
removal is filed with it, and . . . both state and federal courts have jurisdiction until the process of
removal is completed.” Berberian v. Gibney, 514 F.2d 790, 792-93 (1st Cir. 1975). Because this
Court and the state court had concurrent jurisdiction, “the default was effective, but did not
defeat the jurisdiction of the federal court which had already attached. The effect of the default
was the same as if it had been entered by [this] court upon failure of [the defendants] to answer a
complaint originally filed there.” Id. at 792 (citing Butner v. Neustadter, 324 F.2d 783, 785 (9th
Cir. 1963); Munsey v. Testworth Labs., Inc., 227 F.2d 902, 903 (6th Cir. 1955)). Accordingly,
the state default is to be treated as if it were entered by this Court.
Federal Rule of Civil Procedure 55(c) provides, in relevant part: “The court may set aside
an entry of default for good cause.” When determining whether good cause exists, courts may
consider any number of factors, including whether the default was willful, whether setting it
aside will prejudice the non-movant, the defendant’s explanation for the default, and the good
faith of the parties. Indigo Am., Inc. v. Big Impressions, LLC, 597 F.3d 1, 3 (1st Cir. 2010).

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There is good cause to set aside the default as to Ann El-Moslimany. The default was
entered as to both defendants, although the plaintiff requested only that default be entered as to
Samia El-Moslimany. The plaintiff made no mention of Ann El-Moslimany in her request for an
entry of default. For that reason alone, the default as to Ann El-Moslimany should be set aside.
Further, given this Court’s ruling that Ann El-Moslimany was not properly served, her obligation
to file a responsive pleading had not yet materialized when the default was entered.
There is also good cause to set aside the default as to Samia El-Moslimany. The
plaintiff’s first request for entry of default was filed in state court on March 6, 2013, which was
denied on March 25, 2013, because of “insufficient proof of service.” (Aff. of Att’y White, Ex. 6
at 2 (dkt. no. 18-6).) Attorney White avers that he relied on the state court’s determination that
proper service of process had not been made, relieving the defendants from any obligation to file
a responsive pleading. The plaintiff disputes this characterization of the events, but after hearing
argument on the matter, the Court is satisfied that the defendants have shown good cause to set
aside the entry of default.
For the reasons stated herein, Plaintiff’s Motion to Remand (dkt. no. 4) is DENIED, and
the Defendants’ Motion to Set Aside the Default (dkt. no. 17) is GRANTED. The defendants
must file a responsive pleading within 21 days after the entry of this Order.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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