Rhodes v. Municipal Emergency Services, Inc.
Filing
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AMENDED ORDER that the Memorandum and Recommendation 20 is REVERSED, Plaintiffs Motion to Remand 6 is DENIED, and Defendant Eric Johnson is DISMISSED as a party in this action. Signed by District Judge Max O. Cogburn, Jr on 12/2/2014. (eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00314-MOC-DSC
PAIGE RHODES,
Plaintiff,
Vs.
MUNICIPAL EMERGENCY SERVICES, INC.
and ERIC A. JOHNSON,
Defendants.
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AMENDED
ORDER
THIS MATTER is before the court on review of a Memorandum and Recommendation
issued in this matter. In the Memorandum and Recommendation, the Magistrate Judge advised
the parties of the right to file objections within 14 days, all in accordance with 28, United States
Code, Section 636(b)(1)(c). Objections have been filed within the time allowed and Plaintiff has
filed a timely response.
This matter presents the court with questions of subject matter jurisdiction, effectuation
of service, and fraudulent joinder. Plaintiff initiated this action, which consists of only state law
claims, in state court against Municipal Emergency Services (“MES”) (an out of state defendant)
and Mr. Johnson, a North Carolina resident. Defendant removed this case and Plaintiff then
moved to remand, claiming that Mr. Johnson’s North Carolina citizenship destroyed the
complete diversity requirement of 28 U.S.C. § 1332. Defendants contend that jurisdiction in this
federal court is proper in that Plaintiff fraudulently joined Mr. Johnson in this action in order to
defeat diversity, and that after disregarding this fraudulently joined party, complete diversity
exists between the parties.
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FINDINGS AND CONCLUSIONS
I.
INTRODUCTION
The Federal Magistrates Act of 1979, as amended, provides that “a district court shall
make a de novo determination of those portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d
198, 200 (4th Cir. 1983). However, “when objections to strictly legal issues are raised and no
factual issues are challenged, de novo review of the record may be dispensed with.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not required by the statute
“when a party makes general or conclusory objections that do not direct the court to a specific
error in the Magistrate Judge’s proposed findings and recommendations.” Id. Moreover, the
statute does not on its face require any review at all of issues that are not the subject of an
objection. Thomas v. Arn, 474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d at 200.
Nonetheless, a district judge is responsible for the final determination and outcome of the case,
and accordingly the court has conducted a careful review of the Magistrate Judge’s
recommendation.
The court has carefully considered the Magistrate Judge’s findings and recommendation
as to the disposition of the Plaintiff’s Motion to Remand (#6), as well as the associated briefs and
exhibits (##6-1, 12, and 16). The Magistrate Judge recommended that the motion be granted.
Defendant MES has objected to the recommendation (#21) and Plaintiff has filed a timely
response to such objections (#24).
Having carefully considered the Magistrate Judge’s
recommendation, each objection, and the responses to each objection, the court will reverse the
recommendation of the Magistrate Judge.
II.
LEGAL STANDARDS
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A. Removal, Subject Matter Jurisdiction, and Fraudulent Joinder
An action may be removed from state court to federal court if it is one over which the
district court would have had original jurisdiction. 28 U.S.C. § 1441(a). Courts construe removal
jurisdiction strictly because removal implicates significant federalism concerns. Md. Stadium
Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005). Without a proper basis for
subject matter jurisdiction, a removed case must be remanded to state court. Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 96 (1998); Jones v. American Postal Workers Union, 192 F.3d
417, 422 (4th Cir.1999). The burden of establishing federal jurisdiction is on the party seeking
removal. Id. Removal based on diversity jurisdiction, as asserted here, requires complete
diversity of all parties and an amount in controversy over $75,000. 28 U.S.C. § 1332.
Under the doctrine of fraudulent joinder, “a district court can assume jurisdiction over a
case even if, inter alia, there are nondiverse named defendants at the time the case is removed.
This doctrine effectively permits a district court to disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the
nondiverse defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461
(4th Cir. 1999) (internal citations omitted). As noted by the Magistrate Judge, in order to
establish fraudulent joinder, “the removing party must establish either: [t]hat there is no
possibility that the plaintiff would be able to establish a cause of action against the in-state
defendant in state court; or [t]hat there has been outright fraud in the plaintiff's pleading of
jurisdictional facts.” Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999) (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). “Although the Fourth Circuit has not
directly addressed the issue, many federal courts consider a statute of limitations defense as a
basis for finding fraudulent joinder.” Selfridge v. Boston Scientific Corp., No. 2:12-CV-02035,
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2013 WL 1390680, at *4 (S.D.W. Va. Apr. 4, 2013) (citing cases from inter alia, the Third,
Fifth, and Ninth Circuits).
B. Service of Process
The validity of service of process in an action before it is removed to federal
{ "pageset": "Sda
court is determined by the law of the state pursuant to which service was made.
See, e.g., Brazell v. Green, 67 F.3d 293, 1995 WL 572890 (4th Cir. 1995) (unpublished); 4A
Fed. Prac. & Proc. Civ. § 1082 (3d ed.). Rule 4 of the North Carolina Rules of Civil Procedure
governs the procedures for service of process in the state. N.C. GEN. STAT. § 1A-1, Rule 4
(2011). A summons must be issued within five days of the filing of a complaint. Id. § 1A-1, Rule
4(a). That summons must then be served on a defendant “within 60 days after the date of the
issuance of summons.” Id. § 1A-1, Rule 4(c). However, a plaintiff who is unable to serve a
defendant within the sixty-day period allowed for service following the initial issuance of a
summons may continue the action by suing out an alias and pluries summons. Id. § 1A-1, Rule
4(d). The Rules provide:
[t]he plaintiff may sue out an alias or pluries summons returnable in the same
manner as the original process. Such alias or pluries summons may be sued out at
any time within 90 days after the date of issue of the last preceding summons in
the chain of summonses or within 90 days of the last prior endorsement.
Id. § 1A-1, Rule 4(d)(2). “The function of an alias and pluries summons is to keep a lawsuit alive
and maintain the original date of the commencement of the action when the original summons
has not been properly served upon the original defendant named therein.” Tyson v. L'Eggs
Products, Inc., 351 S.E.2d 834, 837 (N.C. Ct. App. 1987). As noted by the Magistrate Judge, the
statute's reference to “the chain of summonses” is an implicit requirement that an alias and
pluries summons contain a reference in its body “to indicate its alleged relation to the original.”
Integon General Ins. Co. v. Martin, 490 S.E. 2d 242, 244 (N.C. Ct. App. 1997) (quoting Mintz v.
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Frink, 6 S.E.2d 804, 806 (N.C. 1940)). Thus, “the validity of an alias or pluries summons is
dependent on the validity of the original summons.” Stack v. Union Reg'l Mem'l Med. Ctr., Inc.,
614 S.E.2d 378, 381 (N.C. Ct. App. 2005).
Rule 4(b) requires that the summons “shall be directed to the defendant or defendants and
shall notify each defendant to appear and answer within 30 days after its service upon [the
defendant or the defendants]....” N.C. GEN. STAT. § 1A-1, Rule 4(b). The summonses must be
valid as to all parties in the action. Stack, 614 S.E.2d at 382 (“The purpose and aim of the service
of the summons are to give notice to the party against whom the proceeding or action is
commenced… Such notice cannot be accomplished when service of summons is not made to
each individual defendant.”).
It is well settled that the “summons, not the complaint, constitutes the exercise of the
power of the State to bring the defendant before the court.” Childress v. Forsyth Cty. Hosp.
Auth., Inc., 319 S.E.2d 329, 332 (N.C. Ct. App. 1984) (citation omitted), disc. review denied,
325 S.E.2d 484 (N.C. 1985). “The purpose of a summons is to give notice to a person to appear
at a certain place and time to answer a complaint against him.” Latham v. Cherry, 433 S.E.2d
478, 481 (N.C. Ct. App. 1993), cert. denied, 441 S.E.2d 116 (N.C. 1994). “In order for a
summons to serve as proper notification, it must be issued and served in the manner prescribed
by statute.” Id.
III.
FACTS OF THE CASE AND TIMELINE OF EVENTS
Plaintiff’s causes of action arise from events occurring in Mecklenburg County in the
summer of 2010. Plaintiff was a 17-year-old minor at the time; her 18th birthday was in October
2010. The parties agree that the statute of limitations on Plaintiff’s claims expired as of October
2013. The undisputed facts relevant to the summons issued in this case follow.
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Plaintiff filed an “Application and Order Extending Time to File Complaint” with the
Mecklenburg County Superior Court on August 7, 2013, which was granted. This application
identified only one defendant—MES. On the same day, that court issued a “Civil Summons to
be Served with Order Extending Time to File Complaint,” also naming MES as the sole
defendant. Plaintiff then filed her complaint and a “Delayed Service of Complaint” form on
August 27, 2013. These documents named both MES and Mr. Johnson as defendants, though
they did not identify Mr. Johnson’s address. Also on August 27, 2013, Plaintiff sought, and the
court issued, an alias and pluries summons as to both MES and Mr. Johnson. This alias and
pluries summons references the original August 7, 2013 summons. The court issued another alias
and pluries summons on November 18, 2013, which references the August 7 and 27 summonses.
The court then issued another summons on February 14, 2014. Though the box marked “alias
and pluries summons” was not checked off, the form explicitly referenced the previous
summonses of August 7, August 27, and November 18.1 The court issued a final alias and pluries
summons on April 30, 2014, which referenced all of the four previous summonses. All of the
alias and pluries summonses identify the August 7, 2013 summons as the “original summons.”
Defendant MES was served in the state action on December 2, 2013. Defendant
Johnson2, however, was not served until June 25, 2014. MES filed a motion to dismiss on
January 31, 2014, but never brought its motion to argument. After MES was served with
Plaintiff’s amended complaint on June 4, 2014, MES cancelled the hearing on its motion to
dismiss and filed its notice of removal on June 13, 2014. At the time of removal, Mr. Johnson
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The court adopts the decision of the Magistrate Judge in this respect and construes this summons as an alias and
pluries summons.
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The court acknowledges the typographical error made in its first order with regard to the spelling of Mr. Johnson’s
name and thanks plaintiff’s counsel for bringing the error to the court’s attention.
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had not yet been served. On August 1, 2014, this court issued a summons in this matter, which
was served upon Mr. Johnson on August 6, 2014.
IV.
THE PARTIES’ CONTENTIONS
A. Timeliness of Removal
The parties dispute the timeliness of Defendants’ removal, which the court will address
first. Generally, under 28 USC § 1446(b), a defendant must file a notice of removal within 30
days after service of the complaint. However, “if the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3) (emphasis added). Defendant MES was served in this matter on
December 2, 2013. MES filed a notice of removal in this matter on June 13, 2014. Thus, removal
was clearly not effectuated within thirty days. Defendants argue that removal was proper because
MES filed a notice of removal within thirty days of learning that the action was removable.
Defendants claim that they only learned about the defects in the summonses as to Mr. Johnson
upon reviewing the state court record in June 2014 when preparing to argue for their motion to
dismiss. Defendants state that prior to learning about these defects, they could not have properly
argued for removal because Mr. Johnson’s citizenship would have destroyed the diversity
requirement.
The only argument that Plaintiff offers with regard to timeliness of removal is that if
Defendants wished to raise arguments of defective summons and service issues, the “best path”
would have been for them to seek relief in state court and remove the action only after a finding
from the state court that it lacked jurisdiction over Mr. Johnson. Plaintiff, however, offers no
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legal support for its contentions that Defendants should have asked the state court, instead of this
court, to determine the matter. Consequently, the court finds that removal was proper and that
this court has jurisdiction to determine the matter of fraudulent joinder.
B. Fraudulent Joinder Based on Defective Summonses
Getting to the heart of Defendants’ objections to the Magistrate Judge’s Memorandum
and Recommendation, Defendants claim that Plaintiff fraudulently joined Mr. Johnson in this
action. Defendants argue that there is no possibility that Plaintiff would be able to establish a
cause of action against Mr. Johnson in state court because the statute of limitations on the state
law claims had run before Plaintiff properly named him as a party to the action. Defendants
premise this argument on alleged deficiencies with the summons and service documents.
Specifically, Defendants argue that the February 14, 2014 alias and pluries summons was the
only original summons ever issued as to Mr. Johnson, and that the August 7, 2014 summons,
which the later summonses refer to as the “original summons,” does not apply to him. Plaintiff
argues in response that both defendants were properly served within the applicable statute of
limitations (through the time extensions granted through the alias and pluries summonses), that
there is no basis for finding any defect in the service of process, and that accordingly, Defendants
cannot show that the Plaintiff cannot bring a valid cause of action in state court. Plaintiff argues
in the alternative that even if service on Mr. Johnson in the state court action was improper, the
service effectuated after removal is valid and thus, Mr. Johnson’s citizenship destroys diversity
in this matter.
In analyzing the appropriateness of a remand in this case, the Magistrate Judge focused
his decision on whether the “chain of summonses” had been broken by the February 14, 2014
summons, which is missing a check mark indicating the summons as an alias and pluries
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summons. Despite the absence of such mark, the Magistrate Judge found that it nonetheless
qualified as an alias and pluries summons through its reference to the previous summonses. The
Magistrate Judge found that “whether the summons is labelled alias and pluries is immaterial,”
that the proper analysis focuses on whether the summons references the previous summons, and
that in this matter, none of the summonses “broke the chain.” The court agrees with the
Magistrate Judge’s analysis in this respect. However, in its objections, Defendant specifically
objected to “the Magistrate Judge’s failure to recognize that the August 7, 2013 original
summons was issued as to MES only, not [Mr.] Johnson” and “the Magistrate Judge’s failure to
find that the issuance of a valid original summons is a necessary prerequisite for any subsequent
alias and pluries summons.” The court believes that the issue regarding the validity of the
original summons merits further inquiry.
In their objection on this point, Defendants cite an instructive 2005 case from the Court
of Appeals of North Carolina that addressed a similar issue as the one presented here—Stack v.
Union Reg'l Mem'l Med. Ctr., Inc., 614 S.E.2d 378, 381 (N.C. Ct. App. 2005). Notably,
Defendants did not cite this case before the Magistrate Judge, but did so only in their objection to
the Magistrate Judge’s Memorandum and Recommendation. While the facts of Stack are
certainly somewhat distinguishable from the matter at hand, the court’s analysis and explanation
of the state rules governing summonses and service of process are applicable here. In Stack, the
plaintiff, after filing an initial complaint against a medical center (“Union Regional”) and then
voluntarily dismissing all pending claims, filed a second complaint, naming two defendants—
Union Regional and the Carolinas Healthcare Foundation (“the Foundation”). The summons was
issued only as to the registered agent of the Foundation. No summons was issued or served as to
Union Regional. After the Foundation moved for summary judgment, the plaintiff obtained a
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civil summons for Union Regional and served the summons and the complaint. Union Regional
filed a motion to dismiss, contending that this summons was a new summons (as opposed to an
alias and pluries summons) and that because it had been issued after the statutorily prescribed
time frame for a new action based on the same claim, the claim against it must be dismissed. In
assessing Rule 4 of the North Carolina Rules of Civil Procedure, discussed supra, the North
Carolina Court of Appeals held that “[s]ince the original civil summons was not directed to
Union Regional, the subsequent issuance of a summons against Union Regional did not relate
back to the original summons.” Stack v. Union Reg'l Mem'l Med. Ctr., Inc., 614 S.E.2d 378, 381
(N.C. Ct. App. 2005). The court found that because the original summons was not directed to or
served on Union Regional, but rather an entirely different entity, Rule 4(d) did not apply and the
subsequent summons was not a valid alias or pluries summons relating back to the original
summons. Id. The court thus held that plaintiff's service of process on Union Regional fell
outside of the statutorily authorized time and upheld the trial court’s granting of summary
judgment to Union Regional. Id. at 326.
In Stack, the North Carolina Court of Appeals also discussed its previous decision in
Roshelli v. Sperry, 305 S.E.2d 218, 219 (N.C. Ct. App. 1983), noting:
In Roshelli, the plaintiff filed a complaint on 27 March 1981 against the defendant
seeking recovery for personal injuries when the defendant's daughter negligently
drove the defendant's car. A summons was issued that same day in the name of
the defendant's daughter. However, a summons was not issued in the name of the
defendant until 7 April 1981, eleven days after the complaint was filed. We held
that the 7 April 1981 summons did not relate back to the 27 March 1981
summons: “The purpose of Rule 4(d) is only to keep the action alive by means of
an endorsement on the original summons or by issuance of an alias or pluries
summons in situations where the original, properly directed summons was not yet
served.” Since the original summons was not properly directed to the defendant,
and was actually served on another individual, Rule 4(d) did not apply and the
summons was not a valid alias or pluries summons.
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Stack, 614 S.E.2d at 381 (internal citations omitted) (emphasis added). Thus, the North Carolina
Court of Appeals has made clear that in order for an alias and pluries summons to be valid as to
all parties, the original summons must clearly be directed to all parties.
Here, the parties agree that the original summons—the summons issued on August 7,
2013 and the one listed as the “original summons” on each of the four consecutive alias and
pluries summonses—named only MES as a defendant. Thus, even if the alias and pluries
summonses properly related back to the original and the “chain of summonses” accurately
referenced the relation to the original, such alias and pluries summonses cannot be proper as to a
defendant who was not named on the original. Here, the Magistrate Judge found that because the
chain of summonses was unbroken, Plaintiff’s service on Mr. Johnson was timely. The proper
analysis, however, must also include an assessment of the original summons. Under applicable
case law brought forth in Defendant’s objections, the original summons must have named Mr.
Johnson as a defendant in order for the subsequent alias and pluries summonses to be valid as to
him. By both parties’ admissions, it did not. Because Plaintiff failed to have an original summons
issued as to Mr. Johnson before the statute of limitations ran on her claims, the state court lacks
jurisdiction over Mr. Johnson. See In re K.A.D., 653 S.E.2d 427, 428 (N.C. Ct. App. 2007) (The
“summons, not the complaint, constitutes the exercise of the power of the State to bring the
defendant before the court.”) (citing Childress v. Forsyth Cty. Hosp. Auth., Inc., 319 S.E.2d 329,
332 (N.C. Ct. App. 1984)). Because Defendants have shown that Plaintiff cannot assert her statebased causes of action against Mr. Johnson in state court, this court is satisfied that Mr. Johnson
was fraudulently joined.
C. Service after Removal
Plaintiff argues that even if state court service as to Mr. Johnson was not valid, the
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service made on Mr. Johnson after removal was valid. This argument is misplaced. 28 U.S.C. §
1448 provides:
In all cases removed from any State court to any district court of the United States
in which any one or more of the defendants has not been served with process or in
which the service has not been perfected prior to removal, or in which process
served proves to be defective, such process or service may be completed or new
process issued in the same manner as in cases originally filed in such district
court.
Id. “However, a defect in service that occurs prior to removal can be cured after removal by the
federal court issuing new process or by an amendment of the original process.” 4A Fed. Prac. &
Proc. Civ. § 1082 (3d ed.). The Fourth Circuit recently reiterated its position on the issue of
service after removal, noting that defects that cause actions to become time-barred cannot be
cured:
When a case is removed to federal court, a plaintiff may be afforded additional
time to complete service or to obtain issuance of new process if, prior to the case's
removal, “service of process has not been perfected prior to removal,” or “process
served proves to be defective.” 28 U.S.C. § 1448. Federal Rule of Civil Procedure
4(m) dictates that the plaintiff serve process within 120 days or be subject to a
dismissal of her federal action without prejudice.
Courts [of appeals] have held that this additional 120–day period does not apply
to cases that “would have been dismissed as time-barred had it remained in state
court.” These courts rely on the reasoning that state law governs the case's
procedure up to its removal, and a suit that failed to satisfy state procedural
obligations cannot be revived by the language of § 1448. Put another way, the
removal of a case to federal court cannot “breathe jurisprudential life in federal
court to a case legally dead in state court.”
Rice v. Alpha Sec., Inc., 556 F. App'x 257, 260 (4th Cir. 2014) (internal citations omitted). In
Rice, the Court of Appeals found that it was not clear that the plaintiff’s case was “legally dead”
under state law, because plaintiff sought to take a nonsuit in the Virginia court system. Here, this
matter does, in fact, appear to be “legally dead” as to Mr. Johnson, in light of the above analysis
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finding that the summons in this case was defective altogether as to him and that Plaintiff’s
claims against him were thus time barred.
D. Plaintiff’s Alleged Intentional Delay of Service
Finally, Defendants fault the Magistrate Judge for not addressing their previous argument
that Plaintiff’s intentional failure to even attempt to serve Mr. Johnson for seven months after
filing the complaint despite being fully aware of his correct address, and for failing to actually
deliver a copy of a summons to him for ten months after filing the complaint. Because the court
has found that Defendants have met their burden in showing fraudulent joinder in this matter, the
court need not address this alternative argument.
V.
CONCLUSION
After careful review of Defendants’ objections and the instructive case law presented to
this court, which, notably, was not offered to the Magistrate Judge, the court determines that the
recommendation of the Magistrate Judge is not fully consistent with current law. Based on
Plaintiff’s failure to properly issue a summons as to Mr. Johnson in accordance with the North
Carolina Rules of Civil Procedure in this matter, Defendants have shown that Mr. Johnson was
fraudulently joined. Because the amount in controversy and diversity of citizenship requirements
of 28 U.S.C. § 1332 are met as to Plaintiff and Defendant MES, this court has jurisdiction over
this matter. Based on such determinations, the court will reverse the Memorandum and
Recommendation (#20), deny Plaintiff’s Motion to Remand (#6), and dismiss Mr. Johnson as a
party to this action.
ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation (#20) is
REVERSED, Plaintiff’s Motion to Remand is DENIED (#6), and Defendant Eric Johnson is
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DISMISSED as a party in this action.
Signed: December 2, 2014
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