McPhee et al v. Mortgage Electronic Registration Systems et al

Filing 16

ORDER Denying 13 Motion to Remand. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KURT MCPHEE, ET AL,
Plaintiff,
vs

Case No: 11-13387
Honorable Victoria A. Roberts

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, ET AL,
Defendant.
_____________________________/
ORDER
Plaintiffs filed a Motion for Remand (Doc. #14). Defendants responded. The
Court can dispose of this motion without a hearing pursuant to L.R. 7.1 (e)(2).
The motion is DENIED.
Plaintiff’s contend that this matter was improperly and untimely removed from the
Oakland County Circuit Court because all named defendants did not join in the removal.

It is clear from exhibits filed with the briefs, that at the time of removal,
Greenpoint Mortgage Funding had not been properly served; it is the only defendant
that did not join in the removal.
While the general rule is that all defendants must join in removal, any defendant
not properly served need not. Pullman Co. v Jenkins, 305 U.S. 534 (1939).
Plaintiffs rely on the notion that Defendant Greenpoint at least had notice of the
suit by July 11, 2011, because the summons and complaint were sent to it by certified
mail to an address in Plano, Texas, and someone signed for it. Plaintiffs say based on
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this July date, Greenpoint should have joined in the request for removal. Plaintiffs do
not assert that the Texas address was a proper address, or the address of Greenpoint’s
registered agent.
Mailing a summons and complaint in this matter and under the circumstances
was not proper service, and the Supreme Court abrogated the notion that “receipt” is
sufficient to defeat remand. The Supreme Court held:
Service of process, under longstanding tradition in our
system of justice, is fundamental to any procedural
imposition on a named defendant....In the absence of
service of process (or waiver of service by the defendant), a
court ordinarily may not exercise power over a party the
complaint names as defendant....Accordingly, one becomes
a party officially, and is required to take action in that
capacity, only upon service of a summons or other authorityasserting measure stating the time within which the party
served must appear and defend....When Congress enacted
§ 1446(b), the legislators did not endeavor to break away
from the traditional understanding.
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
CONCLUSION
All properly served defendants joined in a timely filed notice of removal.
Plaintiff’s Motion is DENIED.
IT IS ORDERED.

/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 13, 2011

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The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
October 13, 2011.
s/Linda Vertriest
Deputy Clerk

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