Widi v. Strafford County et al

Filing 10

ORDER denying 4 Motion to Vacate. Plaintiff to file his objection to the Motion to Dismiss no later than June 1, 2014. Copies of 1 Notice of Removal and 2 Motion to Dismiss with supporting brief to be mailed to plaintiff. (Follow up on Objection on 6/1/2014.) So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v.

Case No. 13-cv-536-SM
Opinion No. 2014 DNH 083

Strafford County, Raymond Bower,
Warren Dowaliby, Bruce Pelkie,
Grace Weisgarber, Jon Forcier,
and Scott Chabot
O R D E R
Plaintiff’s Motion to Vacate, document no. 4, is denied.
Plaintiff’s first argument — that removal is improper because
defendants have not been served and because their counsel has not
filed an appearance in this case — is legally and factually
without merit.

A non-served defendant may remove a case, see

28 U.S.C § 1446(b), and defendants’ counsel has, in fact,
appeared.

See L.R. 83.6(a) (“The filing of . . . any signed

filing . . . constitutes an appearance by the attorney who signs
it.”).

Notably, by filing their Motion to Dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6)
(doc. no. 2), defendants waived any objection to lack of service,
thus rendering further efforts to serve process unnecessary.

See

Crispin-Taveras v. Municipality of Carolina, 647 F.3d 1, 6 (1st
Cir. 2011).1

Because defendants waived service on the same day they filed
their Notice of Removal (by filing their Motion to Dismiss),
there has been no occasion for pre-service preliminary review of
the complaint.
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Plaintiff also argues that remand is warranted because he
has not received a copy of the Notice of Removal (doc. no. 1).
In fact, the record supports plaintiff’s averment that he has not
received a copy of the removal notice, or at least, it is not
clear that he has.

But that is irrelevant.

It is enough that

plaintiff received written notice from the Clerk of the Court
that the case has been removed.

See Runaj v. Wells Fargo Bank,

667 F. Supp. 2d 1199, 1302 (S.D. Cal. 2009) (“Section 1446(d)
does not require ‘formal’ or ‘personal’ service of a notice of
removal upon a plaintiff; it merely requires ‘written notice.’”).
Moreover, as evidenced by his timely motion to remand, plaintiff
has not been prejudiced.

See Busby v. Capital One, N.A., 759

F. Supp. 2d 81, 86 (D.D.C. Jan. 6, 2011) (finding that lack of
prejudice was evidenced by plaintiff’s timely filing of motion to
remand).

The Motion to Vacate is, therefore, necessarily denied.

One more issue warrants the court’s attention.

In his

Motion to Vacate, plaintiff stated that he did not receive a copy
of defendants’ Motion to Dismiss.

Because defendants’ attempt to

cure that defect — by resending the document to plaintiff at the
federal prison in Ray Brook, NY — occurred during plaintiff’s
transfer from that prison to the federal correctional facility in
Berlin, NH, and because plaintiff duly notified the court and
defendants that mail received at FCI-Ray Brook during that time
might not be forwarded to him, the Clerk of the Court is directed
to send copies of the Motion to Dismiss (doc. no. 2), supporting

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brief (doc. no. 2-1), and Notice of Removal (doc. no. 1) to
plaintiff at FCI-Berlin.
dismiss is extended.

The briefing schedule on the motion to

Plaintiff shall file his objection to the

Motion to Dismiss no later than June 1, 2014.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
April 23, 2014
cc:

David J. Widi, Jr., pro se
Corey M. Belobrow, Esq.

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