AARDVARK EVENT LOGISTICS, INC. v. BOBCAR MEDIA, LLC et al

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 12/21/2016. 12/21/2016 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AARDVARK EVENT LOGISTICS, INC.
v.
BOBCAR MEDIA, LLC and GOLDBERG AND
COHEN, LLP and MORRIS E. COHEN

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CIVIL ACTION
NO. 16-5873

O’NEILL, J.

December 21, 2016
MEMORANDUM

Plaintiff Aardvark Event Logistics, Inc. filed suit in Pennsylvania state court against three
New York citizens—defendants Bobcar Media LLC, Bobcar’s intellectual property counsel
Morris E. Cohen and Attorney Cohen’s firm Goldberg Cohen LLP—alleging that defendants
intentionally disparaged plaintiff in an effort to gain a competitive advantage over plaintiff and
interfere with its existing and prospective business relations. On November 14, 2016, defendants
filed a notice removing the case to federal court on the basis of diversity jurisdiction under 28
U.S.C. § 1332. Plaintiff now seeks to remand the case back to state court due to the alleged
untimely nature of the removal notice. For the following reasons, I will deny the remand.
FACTUAL BACKGROUND
Plaintiff initiated suit in the Pennsylvania Court of Common Pleas for Montgomery
County on September 21, 2016, alleging tortious interference with existing and prospective
contractual relations, defamation and civil conspiracy. Thereafter, plaintiff served a copy of its
complaint on defendants via certified mail through the United States Postal Service with return
receipt requested. Pl.’s Mot. to Remand, Ex. C, ECF No. 7-4. The affidavit of service for
defendant Morris Cohen reveals that plaintiff served him on September 26, 2016 at his place of

business at “1350 Avenue of the Americas, Suite 435, New York, NY 10019.” Id. (emphasis
added). The accompanying postal receipt, however, indicates that he was served at “1350
Avenue of the Americas, Suite 425, New York, NY 10019,” and that service was accepted by
“S. Little.” Id. (emphasis added). The affidavit of service for defendant Goldberg and Cohen
LLP (GC) reveals that it was also served on September 26, 2016 at “1350 Avenue of the
Americas, Suite 435, New York, NY 10019,” while the accompanying postal receipt again
indicates service at “1350 Avenue of the Americas, Suite 425, New York, NY 10019,” with
acceptance of service by “Emily Dalton.” Id. (emphasis added). Finally, the affidavit of service
for defendant Bobcar Media, LLC reveals that it was served on September 26, 2016 at “110 Wall
Street, 4th Floor, New York, NY 10005” with the postal receipt reflecting the same address and
signed by a “Steve Cordon.” Id.
On November 4, 2016, having received no responsive filings, plaintiff mailed a Notice of
Intent to File Praecipe for Judgment by Default to each defendant. Pl.’s Mot. to Remand, Ex. D,
ECF No. 7-5. The accompanying certificates of service for these three defendants were sent to
the same addresses as listed in the foregoing affidavits of service for the complaint. Id. Ten
days later, on November 14, 2016—the same day default judgment was to be entered—
defendants filed a notice of removal to federal court on the basis of diversity jurisdiction under
28 U.S.C. § 1332. Notice of Removal, ECF No. 1. In the notice, defendants alleged that they
had never effectively been served with the complaint and that the notice of removal was
therefore timely. Id. ¶ 3.
On November 22, 2016, plaintiff filed the current motion to remand on the ground that
the notice of removal was not timely filed within the thirty-day removal period set forth in 28
U.S.C. § 1446(b). Pl.’s Mot. to Remand, ECF No. 7. Defendants responded on December 6,

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2016, and plaintiff submitted a reply brief on December 13, 2016. Defs.’ Resp., ECF No. 9 and
Pl.’s Reply, ECF No. 11.
STANDARD OF REVIEW
Under 28 U.S.C. § 1441(a), a defendant may remove a civil action filed in a state court if
the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A
defendant seeking removal of an action must file a petition for removal with the district court
within thirty days of plaintiff’s service of the complaint upon defendant. See 28 U.S.C. §
1446(b). The defendants bear the burden of establishing removal jurisdiction and compliance
with all pertinent procedural requirements. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111
(3d Cir. 1990).
Once an action is removed, a plaintiff may challenge removal by moving to remand the
case back to state court. Id. Remand to the state court is appropriate for “(1) lack of district
court subject matter jurisdiction or (2) a defect in the removal process.” PAS v. Travelers Ins.
Co., 7 F.3d 329, 352 (3d Cir. 1993). Remand is mandatory and can occur at any time during the
litigation if the court determines that it lacks federal subject matter jurisdiction. Kimmel v.
DeGasperi, No. 00-143, 2000 WL 420639, at *1 (E.D. Pa. Apr. 7, 2000), citing 28 U.S.C. §
1447(c). A motion to remand the case on the basis of any defect in the removal procedure,
however, must be submitted within thirty days after filing of the notice of removal under section
1446(a). 28 U.S.C. § 1447(c); N. Penn Water Auth. v. BAF Sys. Aerospace Elec., Inc., No. 045030, 2005 WL 1279091, at *5 (E.D. Pa. May 25, 2005). Upon a motion to remand, “it is
always the removing party’s burden to prove the propriety of removal, and any doubts about the
existence of federal jurisdiction must be resolved in favor of remand.” Lumbermans Mut. Cas.
Co. v. Fishman, No. 99-0929, 1999 WL 744016, at *1 (E.D. Pa. Sep. 22, 1999), citing Batoff v.

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State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992); see also Boyer, 913 F.2d at 111 (holding
that the removal statutes “are to be strictly construed against removal and all doubts should be
resolved in favor of remand.”), quoting Steel Valley Auth. v. Union Switch & Signal Div., 809
F.2d 1006, 1010 (3d Cir. 1987).
DISCUSSION
Plaintiff does not challenge this court’s subject matter jurisdiction, but rather seeks remand
because defendants did not timely file the notice of removal. Under 28 U.S.C. § 1446(b):
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 the summons upon the
defendant if such initial pleading has then been filed in court and is
not required to be served on the defendant, whichever period is
shorter.
Id. § 1446(b). This thirty day limitations period for removal is mandatory and cannot be
expanded by the court. See Ogletree v. Barnes, 851 F. Supp. 184, 190 (E.D. Pa. 1994). The
Court of Appeals has held that the term “initial pleading” triggering the start of the thirty-day
removal period in § 1446(b) refers to the complaint, as opposed to a summons or praecipe for
writ of a summons. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 222–23 (3d Cir. 2005), citing
Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344 (1999); Polanco v. Coneqtec Universal,
474 F. Supp. 2d 735, 737 (E.D. Pa. 2007). “Thus, removal is not proper until a complaint has
been served on the defendants.” Campbell v. Oxford Elec., Inc., No. 07-541, 2007 WL 2011484,
at *2 (E.D. Pa. Jul. 5, 2007). Proper service of process, or a valid waiver, is required for the
thirty day clock to begin to run on removal rights. See Murphy Bros., 526 U.S. at 350.

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Plaintiff alleges that defendants’ notice of removal is untimely on its face. Specifically,
plaintiff asserts that Pennsylvania Rules of Civil Procedure 403 and 404 permit service outside
the Commonwealth to be effected by certified mail with a return receipt requested. In
accordance with these dictates, plaintiff mailed the complaint to defendants in New York on
September 22, 2016 via certified mail, and the receipts were signed on September 26, 2016.
Plaintiff then filed affidavits of service on October 10, 2016 and October 13, 2016. Nonetheless,
defendants did not submit their notice of removal until November 14, 2016, more than thirty
days after service of the complaint. Accordingly, plaintiff concludes that removal was untimely
and the case must be remanded.
Plaintiff’s argument fails, however, because it has not proven proper service of the
complaint on defendants. The Federal Rules of Civil Procedure authorize the use of state
methods of service on extra-territorial defendants. Fed. R. Civ. P. 4(e). Service of process
outside the Commonwealth of Pennsylvania is governed by Pa. R. Civ. P. 404, which provides
that such service outside of Pennsylvania may be effectuated by mail in the manner provided in
Rule 403. Pa. R. Civ. P. 404(2). Pennsylvania Rule of Civil Procedure 403 states that “[i]f a
rule of civil procedure authorizes original process to be served by mail, a copy of the process
shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant
or his authorized agent.” Pa. R. Civ. P. 403. In other words, “Pennsylvania Rule 403 requires . .
. a receipt signed by the defendant or his authorized agent.” Lampe v. Xouth, Inc., 952 F.2d 697,
701 (3d Cir. 1991); see also Barkley v. Westmoreland Cnty. Children’s Bureau, No. 11-983,
2012 WL 4482542, at *2 (W.D. Pa. Sept. 26, 2012) (service of process by mail on an individual
under Pa. R. Civ. P. 403 requires “a receipt signed by the individual or the individual’s
authorized agent”). The burden rests on the plaintiff to prove proper service. See Lampe, 952

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F.2d at 701 (finding that, in order for the plaintiff to establish proper service of summons and
complaint under Pennsylvania law, the plaintiff had to prove that either defendant or his
authorized agent signed the receipts); see also McKinnis v. Hartford Life, 217 F.R.D. 359, 361
(E.D. Pa. 2003) (“It is [the] [p]laintiff’s burden to show that service was proper.”).
The mere fact that a return receipt is signed, without a showing that the signature belongs
to an authorized agent, is insufficient to prove service. Lampe, 952 F.2d at 701. Rather, “[t]he
propriety of service under Pennsylvania law commonly depends upon the relationship between
the person receiving process and the party to the litigation.” Grand Entm’t Grp., Ltd. v. Star
Media Sales, Inc., 988 F.2d 476, 485 (3d Cir. 1993). The Court of Appeals has remarked that it
could not find “any Pennsylvania decision that held service proper in the absence of a
representation that the individual served had actual authority or a direct or claimed relationship
with the party to the suit from which authority could be inferred.” Id. Consistent with this
principle, several courts in this circuit have concluded that an authorized agent for purposes of
Pa. R.C.P. 403 must have the authority to accept service of process—as opposed to merely the
authority to accept certified mail deliveries. See Pearson v. Sonnet Trucking, Inc., No. 09-5917,
2012 WL 279673, at *2 (E.D. Pa. Jan. 30, 2012) (holding that service was improper under Pa. R.
Civ. P. 403 where plaintiff failed to show that defendant authorized the signatory of return
receipts to be its agent for purposes of accepting service of process rather than accepting certified
mail deliveries); Grant St. Grp., Inc. v. D & T Ventures, LLC, No. 10-1095, 2011 WL 778438, at
*2 (W.D. Pa. Mar. 1, 2011) (remarking that the authority of signatory of return receipt to accept
certified mail does not render that signatory the defendant’s authorized agent under Rule 403);
Leggett v. Amtrak, No. 90-3007, 1990 WL 182148, at *1 (E.D. Pa. Nov. 26, 1990) (finding
insufficient evidence to conclude service was proper in conformity with Pa. R.C.P. 403 where

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nothing in the record demonstrated signatory’s “authority to accept service of process on behalf
of the corporation”).
In this case, plaintiff has not provided any proof that the signatures on the return receipts
belong to either defendants or their authorized agents. As to defendant Bobcar, plaintiff mailed a
copy of its complaint to Bobcar at its registered business address at “110 Wall Street, 4th Floor,
New York, NY 10005.” Pl.’s Mot. to Remand, Ex. C. ECF No. 7-4, at 8. That address is
identical to the one listed with the New York Department of State, Pl.’s Reply Br., Ex. A, ECF
No. 11-1, and on Bobcar’s own website. Pl.’s Reply Br., Ex. B, ECF No. 11-2, at 8. The return
receipt, however, indicates that the service was signed for by a Steven Cardon. Pl.’s Mot. to
Remand, Ex. C, ECF No. 7-4, at 11. Plaintiff has not provided any documentation to establish
that Cardon is a proper agent of Bobcar. Nor does the receipt contain an indication that Cardon
is either an agent or an addressee. See McKinnis v. Hartford Life, 217 F.R.D. 359, 361–62 (E.D.
Pa. 2003) (holding that where postal receipt was signed by an individual, but plaintiff did not
establish that individual was a signer and neither the “agent” or “address” box on the receipt was
checked, service was not proper). To the contrary, Benjamin Cohen, president of Bobcar, has
attested that the “4th floor” of 110 Wall Street hosts approximately twenty companies and that no
person named “Steve Cardon” works at Bobcar. Defs.’ Resp., Aff. of Benjamin Cohen, ECF No.
9-1, ¶¶ 6–7. To the best of his knowledge, the complaint was never served on Bobcar. Id. at ¶ 8.
Absent any evidence establishing that the receipt was signed by an authorized agent of Bobcar, I
must conclude plaintiff did not perfect service on Bobcar on September 26, 2016. Id.
As to defendants Cohen and GC, the evidence of record raises two deficiencies in service.
First, it is unclear whether the complaint was served at the proper address. The return receipt for
both defendants reveals that the complaint was mailed to “1350 Avenue of the Americas, Suite

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425, New York, NY 10019.” Pl.’s Mot. to Remand, Ex. C, ECF No. 7-4, at 6 & 16 (emphasis
added). This address appears in multiple places, including: (1) Cohen and Goldberg & Cohen’s
listing with the New York Department of State, Pl.’s Reply Br., Ex. E, ECF No. 11-5; (2) the
firm’s letterhead as reflected on a May 2, 2016 letter, Pl.’s Reply Br., Ex. D, ECF No. 11-4; and
the docket of a currently pending action in the Southern District of New York. Pl.’s Reply Br.,
Ex. F, ECF No. 11-6. The affidavits of service subsequently filed by plaintiff for both of these
defendants, however, indicate that the complaint was mailed to “1350 Avenue of the Americas,
Suite 435, New York, New York 10019.” Pl.’s Mot. to Remand, Ex. C, ECF No. 7-4, at 3 & 13.
According to Morris Cohen’s affidavit, GC was never located in Suite 435. Defs.’ Resp., Aff. of
Morris Cohen, ECF No. 9-2, ¶¶ 5–6. Although GC was originally in Suite 425—the address on
the return receipt—the firm moved offices almost two years ago to the third floor. Id. ¶ 7. That
third floor address is confirmed by its appearance on the February 4, 2016 complaint filed by GC
on behalf of Bobcar against Aardvark in federal court in New York, Defs.’ Resp., Ex. 3, ECF
No. 9-5, at 3, the April 20, 2016 amended complaint in that action, Defs.’ Resp., Ex. 4, ECF No.
9-6, at 26, and Bobcar’s opposition to Aardvark’s motion to dismiss in that action. Defs.’ Resp.,
Ex. 5, ECF No. 9-7, at 2. Given this conflicting evidence, I cannot conclude that the complaint
was clearly served at the appropriate address.
Second, even assuming the complaint was sent to the correct address, plaintiff has failed
to adduce proof that it was properly served on and signed for by an authorized agent. Cohen’s
receipt was signed by an “S. Little,” with no indication by plaintiff as to the identity of this
individual or whether she was an authorized agent. GC’s receipt was signed by an “Emily
Dalton.” Pl.’s Mot. to Remand, Ex. C, ECF No. 7-4, at 6 & 16. According to defendants,
neither Cohen nor GC employ any person by the name of “Emily Dalton.” M. Cohen Aff. ¶ 9

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Moreover, on both receipts, neither the “agent” nor the “address” box is checked next to the
signature. Pl.’s Mot. to Remand, Ex. C, ECF No. 7-4, at 6 & 16. Plaintiff bears the burden of
submitting evidence that the signatories were authorized to receive service on behalf of the
defendant. See Pearson, 2012 WL 279673, at *2. Because it has failed to meet this burden, I
cannot find that the September 26, 2016 service upon Cohen and GC was valid.
As noted above, “the removal period for a defendant does not begin to run until that
defendant is properly served or until that defendant waives services.” DiLoreto v. Costigan, 351
F. App’x 747, 751 (3d Cir. 2009). Plaintiff, in this case, has neither established proper service
nor produced evidence that defendants waived service. Therefore, plaintiff’s September 2016
attempts at service did not trigger the start of the removal period. Rather, defendants claim that
they first received notice of the pending litigation via the November 4, 2016 Notice of Intent to
File Praecipe for Default Judgment. Ten days later, defendants filed their notice of removal to
federal court. Under the record before me in this case, I find that notice of removal to be timely.
CONCLUSION
For the foregoing reasons, I hold that defendants’ notice of removal did not fall outside
the thirty-day statutory time period set forth in 28 U.S.C. § 1446(a). Accordingly, I will deny the
motion for remand. 1
An appropriate order follows.

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Defendants raise two additional arguments against remand: (1) this court lacks personal
jurisdiction over defendants and (2) a state court action is subject to dismissal under Pa. R. Civ.
P. 1028(a)(5) because there is a prior-filed action in another court. These arguments are not
proper on a motion for remand, but rather are more appropriately addressed in the context of a
motion to dismiss, one of which is currently pending in this case.
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