McCloskey v. Big Sky Senior Living On Waterford Way et al

Filing 15

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
BUTTE DIVISION

FILED
JAN 2 9 2018

CLAYTON JAMES McCLOSKEY,

Cieri< ' ·

1istrict Court

\Aontana
18

No. CV-17-91-BU-SEH

Plaintiff,
vs.

ORDER

BIG SKY SENIOR LIVING ON
WATERFORD WAY, WATERFORD
OPERATING, LLC, and JOHN &
JANE DOES 1 - 5,
Defendants.
· 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

1

Complaint and Demand for Jury, Montana Second Judicial District Court, Silver Bow
County, DV-16-437.
2

Amended Complaint and Demand for Jury, Montana Second Judicial District Court,
Silver Bow County, DV-16-437 ("FAC").

-1-

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,

011

December 7, 2017, was timely. 6

3

Second Amended Complaint and Demand for Jury, Montana Second Judicial District
Court, Silver Bow County, CV-16-43 7 ("SAC").
4

Doc. 1-2 at 26.

5

Doc. 1-2 at 28-29.

6

See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
-2-

ORDERED:
Plaintiffs Motion to Remand7 is DENIED.
DATED this

Jtf~fay of January, 2018.

~ v~=

~E.HA DON
\
United States District Judge

7

Doc. 9.
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