Hampton et al v. Credit Acceptance Corporation et al

Filing 18

ORDER denying 12 Motion to Remand. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRINCESS HAMPTON and SHANTEL
HAMPTON,

Case No. 15-11338
Honorable Nancy G. Edmunds

Plaintiffs,
v.
BIG THREE AUTO SALES, INC., CREDIT
ACCEPTANCE, CORP., ADESA, INC.,
BLACKHAWK RECOVERY AND
INVESTIGATIONS, INC.,
Defendants.
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ORDER DENYING PLAINTIFFS' MOTION TO REMAND TO STATE COURT [12]
Currently before the Court is Plaintiffs' motion to remand this matter to the Wayne
County Circuit Court. (Dkt. 12). Plaintiffs argue that Defendant Credit Acceptance failed to
obtain the consent of all Defendants prior to removing this matter. For the reasons stated
below, the Court DENIES Plaintiffs' motion.
On February 6, 2015, Plaintiffs filed this matter against Defendants Credit
Acceptance, Big Three Auto Sales, Inc., ADESA, Inc., and Blackhawk Recovery and
Investigations, Inc., in the Wayne County Circuit Court. The complaint contains two federal
claims brought under the Credit Repair Organizations Act, 15 U.S.C. § 1679, and the Fair
Debt Collection Practices Act, 15 U.S.C. § 1601, and various causes of action arising under
state law. On April 13, 2015, Defendant Credit Acceptance filed a notice of removal with
this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Dkt. 1). Section 1446(b)(2)(A) states:
"When a civil action is removed solely under section 1441(a), all defendants who have

been properly joined and served must join in or consent to the removal of the action." 28
U.S.C. § 1446(b)(2)(A) (emphasis added). Plaintiffs argue that Credit Acceptance failed to
comply with this procedural requirement by neglecting to obtain the consent of Defendants
Blackhawk and Big Three Auto prior to seeking removal.1 According to Credit Acceptance,
however, neither of the Defendants in question were properly served at the time of
removal, and thus there was no obligation to obtain their consent. This Court agrees.
The Sixth Circuit has been clear that the consent requirement under Section
1446(b)(2)(A) only applies to defendants who have been "served or otherwise properly
joined." Farnsworth v. Nationstar Mortgage, 569 F. App'x 421, 425 (6th Cir. 2014)
("Because Nationstar was the only defendant who had been 'served or otherwise properly
joined,' . . . it was not required to have the other unknown and improperly served
defendants join or file consent.") (citing Brierly v. Alsuisse, 184 F.3d 527, 533 n. 3 (6th Cir.
1999)). Service on a corporate defendant is governed under Federal Rule of Civil
Procedure 4(h), which requires the complaining party to (1) deliver a copy of the summons
and complaint to an officer of the corporation, or (2) abide by the applicable service
requirements set forth under state law. Michigan Court Rule 2.105(D)(1) likewise requires
personal service on an officer or director of the corporation. See Adams v. Wilmington
Finance/AIG, 2012 WL 2906082 (E.D. Mich. Apr. 10, 2012) (“Federal Rule of Civil
Procedure 4(h) does not envision service by mail as being a proper way of serving a
corporation with a complaint and summons unless the law of the state in which the district
court sits, or the law of the state in which service was effected, so permits . . . . Michigan

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There is seemingly no dispute that Defendant ADESA consented to removal.
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law does not permit service of process to a corporation by mail alone, certified or otherwise.
Mich. Court R. 2.105(D).”).
Here, Plaintiffs have failed to establish--by way of affidavit or otherwise--that either
Defendant was served in accordance with the rules recited above. In fact, Plaintiffs
impliedly concede that service was improper by noting that they "even received the green
receipt from . . . Big Three Auto Sales." (Plfs' Br. 6). "Cases in this district that have
addressed the issue have held that the Michigan rules do not authorize service by
registered mail on corporations." Walker v. Brooke Corp., No. 08-14574, 2009 WL
1689653, at *2 (E.D. Mich. June 17, 2009). Likewise, Federal Rule of Civil Procedure 4(h)
“does not provide for service of process upon corporations by mail as a matter of federal
procedure.” Campbell v. Angela Hospice Home Health Care, Inc., No. 06-15513, 2007 WL
4571456, at *3 (E.D. Mich. Dec. 27, 2007) (citations and quotations omitted); see also
Capaldi v. Am. Credit & Collections, LLC, No. 12-10254, 2012 WL 6822038, at *1 (E.D.
Mich. Dec. 13, 2012) ("In this case, plaintiff only served the complaint by registered mail
and thus, did not comply with either of the proper service options available for service of
corporations under Rule 4(h) and Michigan law.). Moreover, Plaintiffs fail to provide any
discussion of how--if at all--Defendant Blackhawk was served.
In sum, because the Court is unable to ascertain whether Defendants were properly
served, there is simply no basis upon which to conclude that Plaintiffs have failed to comply
with the unanimity requirement under 28 U.S.C. § 1446(b)(2)(A). As such, the Court finds
that removal was proper and thus retains jurisdiction over this matter.
Accordingly, the Court hereby DENIES Plaintiffs' motion to remand this case to the
Wayne County Circuit Court. (Dkt. # 12).
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SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: June 9, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 9, 2015, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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