Motorola Solutions, Inc. v. Pick et al

Filing 27

ORDER that 13 Plaintiff's Motion to Remand to State Court is GRANTED. Signed by Judge Miranda M. Du on 10/8/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MOTOROLA SOLUTIONS, INC., f/k/a
MOTOROLA, INC., a Delaware
corporation,
Plaintiff,

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Case No. 2:15-cv-00236-MMD-GWH
ORDER REGARDING PLAINTIFF’S
MOTION TO REMAND (Dkt. no. 13)

v.
HAROLD PICK, an individual, MERCY
M. ABRAHAM, an individual, DOE
INDIVIDUALS 1 through 10; and ROE
ENTITIES 11 through 20, inclusive,
Defendants.

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I.

SUMMARY

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This removed case comes before the Court on Plaintiff Motorola Solutions, Inc.’s

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(“Motorola”) Motion to Remand. (Dkt. no. 13.) Motorola contends that the action should

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be remanded because: (a) the removal was untimely; (b) defendants failed to file notice

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of removal in state court; and (c) all of the defendants did not consent to removal.

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Motorola also argues it is entitled to fees and costs because the removal petition was

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unreasonable. Defendants Harold Pick and Mercy H. Abraham (“Pick” and “Abraham”)

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filed a response (dkt. no. 18), and Motorola filed a reply (dkt. no. 22.). The Court has

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reviewed these documents and for the reasons below, grants Motorola’s Motion to

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Remand.

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II.

BACKGROUND

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Motorola filed a complaint in the Eighth Judicial District Court for Clark County,

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Nevada, in December 2014. (Dkt. no. 1-2.) The complaint alleges that Pick had illicitly

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transferred property to Abraham in order to avoid satisfying a judgment Motorola had

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obtained against him. (Id. at 5.) Motorola alleges that Pick was properly served on

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January 6, 2015, and Abraham was properly served on January 18, 2015. (Dkt. no. 13 at

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2) Pick filed a notice of removal with this court on February 10, 2015. (Dkt. no. 1.) The

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notice contained the statement “[a]ll Defendants named in Plaintiff’s Complaint consent

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to removal.” (Id. at 3.) Pick did not file a notice of removal in state court until March 30,

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2015. (Dkt. no. 22-5.) In the meantime, the state court entered default judgements

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against both Pick and Abraham. (Id.)

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Pick and Abraham both argue that they were not properly served. Pick claims that

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he was not provided a copy of the summons. (Dkt. no. 18 at 3.) Abraham claims she was

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never served with any documents at all. (Id.) Pick has not responded to Motorola’s

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footnote argument that Pick’s unduly delay in filing a notice of removal with the state

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court serves as another basis for removal.

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III.

LEGAL STANDARD

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A suit filed in state court may be removed to federal court if the federal court

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would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). However, courts

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strictly construe the removal statute against removal jurisdiction, and “[f]ederal

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jurisdiction must be rejected if there is any doubt as to the right of removal in the first

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instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (emphasis added). The

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party seeking removal bears the burden of establishing federal jurisdiction. Durham v.

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Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).

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IV.

DISCUSSION

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The Court need not address Motorola’s second and third arguments (dealing with

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consent and notice of removal in state court) because it finds Motorola’s first argument

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persuasive and dispositive.
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A.

Timeliness

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A defendant seeking to remove a civil action from state court must file a notice

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containing “a short and plain statement of the grounds for removal, together with a copy

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of all process, pleadings, and orders served upon each defendant or defendants in such

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action.” 28 U.S.C. § 1446(a). The defendant must file the notice of removal “within thirty

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days after the receipt by the defendant, through service or otherwise, of a copy of the

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initial pleading setting forth the claim for relief upon which such action or proceeding is

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based. . . .” 28 U.S.C. § 1446(b). Failure to file a notice of removal within thirty (30) days

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is a sufficient ground on which to remand an action to state court. See Things

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Remembered v. Petrarca, 516 U.S. 124, 128, n. 3 (1995) (stating that remand based on

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untimely removal is “precisely the type of removal defect contemplated by § 1447(c).”);

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see also Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980) (“a timely

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objection to a late petition will defeat removal.”).

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Pick filed a notice of removal with this Court thirty-four (34) days after he was

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served. However, he argues that his service was inadequate, and therefore the thirty-day

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clock imposed by § 1446(b) did not actually start running on January 6, 2015.

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1.

Whether Pick’s Service was Proper

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Federal Rule of Civil Procedure 4(e)(1) permits service to be effectuated

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“pursuant to the law of the state in which the district court is located, or in which service

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is effected.” In turn, Rule 4(d)(6) of the Nevada Rules of Civil Procedure requires

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defendants to be served with a copy of the summons and a copy of the complaint.

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Motorola argues that Pick was properly served with both a summons and

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complaint. In support, Motorola offers a signed declaration from the process server who

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served Pick. (Dkt. no. 22-2 ¶ 5.) Pick claims that he was given a copy of the complaint

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but not a copy of the summons. In support of his position, Pick has provided a signed

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declaration. (Dkt. no. 9 at 2.)

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First and foremost, Pick admits that he received a copy of the complaint on

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January 6, 2015. (Id.) The thirty-day period to file the notice of removal was triggered
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from his receipt of the complaint. 28 U.S.C. § 1446(b) (“The notice of removal . . . shall

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be filed within 30 days after the receipt by the defendant, through service or otherwise,

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of a copy of the initial pleading setting forth the claim for relief upon which such action or

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proceeding is based. . . .”) Moreover, Pick’s declaration, by itself, does not overcome the

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presumption that his service was proper. “A signed return of service constitutes prima

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facie evidence of valid service which can be overcome only by strong and convincing

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evidence.” S.E.C. v. Internet Solutions for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007)

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(citations and quotations omitted). A self-serving declaration is generally not sufficient to

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overcome prima facie evidence of valid service. See Craigslist, Inc. v. Hubert, 278

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F.R.D. 510, 514 (N.D. Cal. 2011). Therefore, the Court finds that because Pick received

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the complaint, as well as service of the summons, on January 6, 2015, that date serves

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as the commencement date for the thirty-day period. The notice of removal was not

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timely filed.

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2.

Whether Abraham’s Consent Affects Timeliness

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Pick also attempts to push back the start of the thirty-day time period by relying on

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the fact that Abraham consented to his February 10, 2015 filing. Abraham argues that

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she was not properly served either a summons or complaint, and has provided some

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evidence beyond a self-serving declaration to support her position. (Dkt. no. 22 at 6-9.)

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Therefore, Pick argues, even if the Court does not consider his service improper, the

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thirty-day timeline has still not begun because Abraham was never properly served.

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However, the Court need not evaluate whether Abraham was properly served

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because, even if she was, she consented to an untimely notice rather than filing her own

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notice of removal. Pick points the Court to Griffith v. Am. Home Products Corp., 85 F.

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Supp. 2d 995, 1000 (E.D. Wash. 2000), wherein a district court noted that the Ninth

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Circuit has not decided whether one thirty-day window for all defendants starts when the

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first defendant is served (the majority rule) or each defendant gets thirty days from the

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date they were served (the modern rule). This debate is beside the point. Abraham, the

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defendant who was served later, did not file a notice to which Pick consented. The
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opposite occurred. While § 1446(c) allows an earlier-served defendant to consent to the

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timely notice of removal of a later-served defendant, it does not allow a later-served

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defendant to cure an untimely notice of removal filed by an earlier-served defendant

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simply by consenting to it. Abraham’s consent, even if it was properly given and she was

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never served, does not cure the deficiency in Pick’s untimely notice of removal.

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B.

Fees and Costs

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Motorola asks the Court to award it fees and costs because Pick’s removal was

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unreasonable. “Fees and costs may be awarded under § 1447(c) if the attempted

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removal was objectively unreasonable.” Houden v. Todd, 348 F. App'x 221, 223 (9th Cir.

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2009). District courts retain the discretion to award or withhold fees based on the

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particularized facts of each case. See Martin v. Franklin Capital Corp., 546 U.S. 132, 141

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(2005).

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In this case, Pick sought removal based on diversity jurisdiction. Though his

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notice was untimely, the existence of multiple defendants served on different dates

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created some confusion about which thirty-day period governed his petition. Pick’s

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attempt to remove the case was not unreasonable. Therefore, Motorola’s request for

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fees and costs is denied.

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V.

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CONCLUSION
For the reasons discussed above, the Court grants Motorola’s Motion to Remand

(dkt. no. 13.)
DATED THIS 8th day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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