Conway v. Fulbright et al
Filing
11
MEMORANDUM signed by District Judge Todd J. Campbell on 5/24/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSHUA CONWAY
v.
KUMARI S. FULBRIGHT, et al.
)
)
) NO. 3-16-0858
) JUDGE CAMPBELL
)
MEMORANDUM
Pending before the Court is Plaintiff’s Objection to Defendant’s Notice of Removal as
Untimely (Docket No. 3) which is actually a Motion to Remand. Plaintiff asks the Court to promptly
remand this action to Davidson County Circuit Court because Defendant’s Notice of Removal was
untimely.
For the reasons stated herein, Plaintiff’s Motion to Remand (Docket No. 3) is GRANTED,
and this action is REMANDED to the Davidson County Circuit Court for further proceedings.
Plaintiff filed this action on March 9, 2016, in the Davidson County Circuit Court. Plaintiff
alleges that service upon Defendants was complete on March 9, 2016. Defendants filed their Notice
of Removal on May 6, 2016.
Pursuant to federal law, a notice of removal shall be filed within 30 days after 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. 28 U.S.C. § 1446(b). If Plaintiff’s allegation of service on March 9,
2016, is correct, therefore, Defendants’ Notice of Removal was untimely.
Tennessee law provides that service by mail of a summons and complaint upon a defendant
may be made by the plaintiff, the plaintiff’s attorney or by any person authorized by statute. Tenn.
R. Civ. P. 4.04(10). Service by mail is complete upon mailing. Tenn. R. Civ. P. 4.04(11). An
indication of “unclaimed” on a properly addressed registered or certified letter is sufficient evidence
of the defendant’s refusal to accept delivery and when that written return receipt is returned and filed
in the action, it is deemed an actual and valid service of process. Id. Service of a person outside the
State of Tennessee may be made by any form of service authorized for service within the state
pursuant to Rule 4.04. Tenn. R. Civ. P. 4.05(1)(a).
Plaintiff has attached to his Motion copies of the return of service filed with the state court,
indicating that Plaintiff mailed process to Defendants via certified mail on March 9, 2016. Docket
No. 3-1. Thus, under Tennessee law, process upon Defendants was complete on March 9, 2016.
Defendants have not rebutted this fact.
Defendants argue that Ms. Fulbright did not receive notice of the service of process until
April 9, 2016. But Defendants fail to cite any authority for the Court to ignore the clear Tennessee
Rule that service is complete upon mailing. In fact, Defendants cite no authority at all for their
response.
On a motion to remand, the defendant bears the burden of establishing that removal was
proper. Atkinson v. Morgan Asset Mgmt., Inc., 664 F.Supp.2d 898, 902 (W.D. Tenn. 2009). Also,
the removal petition is to be strictly construed, with all doubts resolved against removal. Id.
Resolving all doubts in favor of the non-removing party (Plaintiff), the Court finds that
service upon these Defendants was accomplished, pursuant to Tennessee law, on March 9, 2016.
Therefore, Defendants’ Notice of Removal was untimely. This case is REMANDED to the Davidson
County Circuit Court for further proceedings.
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
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