McCloskey v. Big Sky Senior Living On Waterford Way et al
ORDER denying 9 Motion to Remand. Signed by Judge Sam E Haddon on 1/29/2018. (NOS)
IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JAN 2 9 2018
CLAYTON JAMES McCLOSKEY,
Cieri< ' ·
BIG SKY SENIOR LIVING ON
WATERFORD WAY, WATERFORD
OPERATING, LLC, and JOHN &
JANE DOES 1 - 5,
· This case was filed in state court on December 20, 2016. 1 No Summons
were issued and no service of summons and the complaint were attempted or
effected before June 5, 2017, when Plaintiff filed an Amended Complaint (First
Amended Complaint) in state court. 2 Summons was issued for the FAC on June 5,
2017, but no service of the amended pleading was effected before a Second
Complaint and Demand for Jury, Montana Second Judicial District Court, Silver Bow
Amended Complaint and Demand for Jury, Montana Second Judicial District Court,
Silver Bow County, DV-16-437 ("FAC").
Amended Complaint was filed on September 11, 2017. 3 Summons was issued on
October 20, 2017, 4 after the SAC was filed.
Defendants acknowledged receipt of Summons and waived formal service
of process on November 10, 2017. 5 Notice of Removal was filed on December 7,
2017, 27 days after service was completed on November 10, 2017.
28 U.S.C. § 1446(b) provides:
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
defenda:1t if such initial pleading has then been filed in
court and is not required to be served on the defendant,
whichever period is shorter.
Here, formal service, requisite to invocation of the 30-day removal period
limitation in 28 U.S.C. § 1446, commenced 011 November 10, 2017. Removal
filed 27 days later,
December 7, 2017, was timely. 6
Second Amended Complaint and Demand for Jury, Montana Second Judicial District
Court, Silver Bow County, CV-16-43 7 ("SAC").
Doc. 1-2 at 26.
Doc. 1-2 at 28-29.
See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
Plaintiffs Motion to Remand7 is DENIED.
Jtf~fay of January, 2018.
United States District Judge
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