Lockhart v. CitiMortgage, Inc.
Filing
21
ORDER granting 6 Motion to Remand to State Court (Written Opinion). Signed by Senior Judge David S. Doty on 5/10/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 10-4624(DSD/FLN)
Benjamin J. Lockhart,
Plaintiff,
ORDER
v.
CitiMortgage, Inc.,
Defendant.
Benjamin J. Lockhart, 2514
Minneapolis, MN 55405, pro se.
Thomas
Avenue
South,
Jared M. Goerlitz, Esq., Steven H. Bruns, Esq. and
Peterson, Fram & Bergman, 55 East Fifth Street, Suite
800, St. Paul, MN 55101, counsel for defendant.
This matter is before the court upon the pro se motion to
remand by plaintiff Benjamin J. Lockhart.
Based on a review of the
file, record and proceedings herein, and for the following reasons,
the court grants the motion.
BACKGROUND
This
defendant
dispute arises
CitiMortgage,
out
Inc.1
of
a
On
mortgage from
October
1,
Lockhart
2010,
to
Lockhart
attempted to begin an action in Minnesota state court by mailing a
summons, complaint and an acknowledgment of receipt of the summons
1
Lockhart entered into the mortgage in October 2002 with PHH
Mortgage. Servicing of Plaintiff’s mortgage transferred from PHH
Mortgage to CitiMortgage in 2008. See Compl. ¶ 15.
and complaint (acknowledgment form) to CitiMortgage by certified
mail.
See Notice of Removal Ex. A.
documents on October 4, 2010.
On October 28, 2010, CitiMortgage
signed the acknowledgment form.
16,
2010,
CitiMortgage
CitiMortgage received the
See id. Ex A, at 14.
removed.
In
its
notice
On November
of
removal,
CitiMortgage reserved the right to assert insufficient process or
service
of
process.
See
id.
¶
8.
On
November
23,
2010
CitiMortgage filed an answer. Lockhart moved to remand. The court
now considers the motion.
DISCUSSION
I.
Removal
“Federal courts are courts of limited jurisdiction.
possess
only
statute.”
that
power
authorized
by
the
Constitution
They
and
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (citation omitted). The court must remand an action “at
any time before final judgment [if] it appears that the district
court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). The
party seeking federal jurisdiction bears the burden to show that it
has met the jurisdictional prerequisites.
See In re Bus. Men’s
Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993).
“The
district court [is] required to resolve all doubts about federal
jurisdiction in favor of remand.”
2
Id.
“[A]ny civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may be removed by the defendant ... to the district court of the
United States for the district and division embracing the place
where such action is pending.”
added).
28 U.S.C. § 1441(a) (emphasis
Under the plain language of § 1441, an action must have
commenced in state court before it can be removed to federal court.
See Hudelson v. Berkshire Life Ins. Co. of Am., No. 09-3220, 2010
WL 889962, at *1 (D. Minn. Mar. 8, 2010) (collecting cases); cf.
Martin v. Franklin Capital Corp., 546 U.S. 132, 134 (2005).
In
Minnesota, a civil action is commenced (a) when the summons is
served, or (b) at the date of acknowledgment of service if service
is made by mail, or (c) when the summons is delivered to the
sheriff in the county where the defendant resides for service.
Minn. R. Civ. P. 3.01.
A party may remove an action within thirty days of service of
the initial pleading.
28 U.S.C. § 1446(b).
Formal service
according to state law must occur before the thirty-day removal
period begins.
See Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 347-48 (1999).
When, as here, a plaintiff
attempts to serve a summons by mail, “[i]f acknowledgment of
service ... is not received by the sender within the time defendant
is required by these rules to serve an answer, service shall be
3
ineffectual.”
Minn. R. Civ. P. 4.05.
A defendant has 20 days to
serve an answer, plus three additional days when service is by
mail.
See id. 6.01, 6.05, 12.01.
Minnesota courts require strict adherence to Rule 4.05, and
despite actual notice by a defendant, a plaintiff must receive
acknowledgment of service within 23 days in order to perfect
service.2
See, e.g., Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d
609, 612–13 (Minn. Ct. App. 2000); Coons v. St. Paul Cos., 486
N.W.2d 771, 776 (Minn. Ct. App. 1992); see also Gulley v. Mayo
Found., 886 F.2d 161, 165 (8th Cir. 1989); Hudelson v. Berkshire
Life Ins. Co. of Am., No. 09-3220, 2010 WL 889962, at *2 (D. Minn.
Mar. 8, 2010).
II.
Remand
Lockhart argues that the November 16 removal was untimely
because the thirty-day removal period began on October 4, when
CitiMortgage received the summons and complaint by certified mail.
This argument is without merit.
In Minnesota, actual notice by
mail is
service
not
effective service;
acknowledgment of the defendant.
2
by mail
requires
the
Therefore, Lockhart’s argument
The commentary to the Minnesota rules recognizes the
responsibility of a plaintiff to seek alternate service when a
defendant refuses timely to acknowledge service. Minn. R. Civ. P.
4.05 advisory committee note. The 20 day period begins on the date
of mailing the summons and complaint. See Gulley, 886 F.2d at 165;
Turek, 618 N.W.2d at 612.
4
fails, and remand is not warranted on this basis.
Remand is
necessary, however, because no action commenced — and service was
not waived — before removal.
A.
Commencement Under Minnesota Law
The removal period under § 1446 does not begin until service
is complete, or is waived.
See Murphy Bros., Inc., 526 U.S. at
351, 356; see also MW AG, Inc. v. New Hampshire Ins. Co., 107 F.3d
644, 647 (8th Cir. 1997) (finding action commences on date of
waiver where service is ineffective); Hudelson, 2010 WL 2133852 at
*1.
For service by mail to be effective, Lockhart had to receive
CitiMortgage’s acknowledgment by October 25.
6.01, 6.05, 12.01.
See Minn. R. Civ. P.
CitiMortgage did not send the acknowledgment
form until October 28, 2010.
As a result, service was never
perfected, and the action did not commence before removal.
B.
Waiver of Service
CitiMortgage argues that it waived service by acknowledging
service, and that the removal clock therefore commenced on October
28, 2010. Minnesota courts have rejected this argument. See Turek
v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 612–13 (Minn. Ct. App.
2000).
CitiMortgage’s untimely acknowledgment of service does not
constitute waiver of service.
Id.
Moreover, the November 16,
2010, notice of removal expressly retained the right to contest
service.
As a result, CitiMortgage did not waive service until it
5
filed
the
answer
and
affirmatively
placed
itself
jurisdiction of the court on November 23, 2010.
within
the
See Fed. R. Civ.
P. Rule 12(h)(1)(B)(ii); Turek, 618 N.W.2d at 612.
Therefore,
removal on November 16 was premature, and remand is warranted.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the motion to remand
[ECF 6] is granted, and this matter is remanded to the Fourth
Judicial District of the State of Minnesota.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
May 10, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?