Emery v. Barker et al

Filing 10

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS MOTION TO REMAND DKT. NO. 7 AND DENYING DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO QUASH SUMMONS DKT. NO. 6 AS MOOT. Signed by District Judge Irene M. Keeley on 5/19/2014. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARY ANN EMERY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:14CV62
(Judge Keeley)

CALVIN L. BARKER and CALVIN E.
BARKER, JR.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7]
AND DENYING DEFENDANTS’ MOTION TO DISMISS OR, IN THE
ALTERNATIVE, MOTION TO QUASH SUMMONS [DKT. NO. 6] AS MOOT
Pending before the Court are the motion to remand (dkt. no.
7), filed by the plaintiff, Mary Ann Emery (“Emery”), and the
motion to dismiss or, in the alternative, motion to quash summons
(dkt. no. 6), filed by the defendants, Calvin L. Barker and Calvin
E. Barker, Jr. (collectively, the “Barkers”). For the reasons that
follow, the Court DENIES the motion to remand and DENIES the motion
to dismiss or quash summons AS MOOT.
I.
This case involves an automobile accident that occurred on
February 12, 2012 in Morgantown, West Virginia.

Emery’s daughter

was driving her sedan westward on Stewartstown Road while her
mother sat in the front seat.

Calvin L. Barker, driving a pick-up

truck owned by Calvin E. Barker, Jr., was traveling in the opposite
direction.

When he attempted to turn right, he lost control of the

truck, crossed the double yellow line, and collided head-on with

the vehicle in which Emery was a passenger.

As a result of that

collision, the automobile behind Emery crashed into her daughter’s
car, allegedly causing Emery “serious and potentially permanent
personal bodily injuries.”
Emery filed a complaint on January 24, 2014, in the Circuit
Court of Monongalia County, West Virginia, asserting negligence
against Calvin L. Barker, negligence against Calvin E. Barker, Jr.
through the “family purpose doctrine,” and negligent entrustment
against Calvin E. Barker, Jr.

Emery sent copies of the complaint

and the summons to the Barkers, via certified mail, at the address
listed for them in the police crash report - 2014 Lakeside Estates,
Morgantown, West Virginia.

According to the sworn writ returns,

the Barkers were personally served at the Morgantown address on
February 18, 2014, at which time they signed return receipts.
Notwithstanding, on February 28, 2014, the Barkers, appearing
specially through counsel in Monongalia County Circuit Court, filed
a motion to dismiss or, in the alternative, to quash summons. They
argued that personal service was improper because, in 2013, they
had become Maryland residents and were thus entitled to service
under W. Va. Code § 56-3-31.1

In response, Emery asserted that

personal service was proper because, according to the police crash
report, the Barkers were West Virginia residents.

1

Alternatively,

The statute provides that non-resident motorists, or their
insurers, are to be served through the West Virginia Secretary of State.
If such service cannot be effected, then service may be made personally
upon the non-resident defendant’s insurance company. See Randolph v.
Hendry, 50 F. Supp. 2d 572, 573-74 (S.D.W. Va. 1999).

2

Emery noted her intention to serve the Barkers in accordance with
W. Va. Code § 56-3-31.

Indeed, the Barkers now concede that their

insurer, Nationwide Property and Casualty Insurance Company, was
served through the Secretary of State on March 21, 2014.2

(Dkt.

No. 9 at 1, 4).
While their motion was still pending before the state court,
the Barkers removed the complaint to this Court on April 8, 2014.
Two days later, Emery filed a motion to remand, arguing that the
Barkers

had

been

properly

served

on

February

18,

2014,

or,

alternatively, that they had received the complaint at their
Maryland address on February 28, 2014, regardless of whether
service was perfected.

According to Emery, either of these dates

triggered the thirty-day period for removal under 28 U.S.C. §
1446(b), and therefore the Barkers’ April 8, 2014 removal was
untimely.

For

their

part,

the

Barkers

had

previously

filed

affidavits stating that the signatures on the return receipts were
not theirs and that their residence had changed from West Virginia
to Maryland in 2013. In addition, they contend that the thirty-day
removal period was not triggered until they received service of
process from the Secretary of State on March 21, 2014.
II.
Under 28 U.S.C. § 1441, defendants named in a state civil
action who are non-residents of the forum state may remove the
2

The record reflects that the Secretary of State delivered service
of process to Nationwide on March 17, 2014. (Dkt. No. 5-7 at 4). The
difference is immaterial for purposes of this Order.

3

action

to

federal

district

diversity jurisdiction.
days after

the

receipt

court

on

the

basis

of

§

1332(a)

However, defendants must do so “within 30
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 . .
. .”

§ 1446(b)(1).
Here, Emery proposes February 18, 2014 and February 28, 2014

as alternative triggering dates for the Barkers’ thirty-day window
in which to remove the complaint.

For purposes of remand, the

difference between these dates is immaterial, as either would place
the April 8, 2014 notice of removal outside the permissible time
frame.

Therefore, the Court does not address the issue of whether

the Barkers actually signed the return receipts.

Instead, it

addresses only the issue of whether the Barkers’ actual receipt of
service on or before February 28, 2014, albeit defective, triggered
the thirty-day removal period.3
The triggering event language in § 1446(b)(1), “receipt by the
defendant, through service or otherwise,” was, for many years, seen
as ambiguous, and courts were split as to whether the thirty-day
removal period commenced upon actual receipt of the complaint even
if service was improper.

Compare, e.g., Kluksdahl v. Muro Pharm.,

Inc., 886 F. Supp. 535, 539 (E.D. Va 1995) (adopting the “receipt
rule”), with Bowman v. Weeks Marine, Inc., 936 F. Supp. 329, 333
3

In the Barkers’ motion, filed February 28, 2014, they explain that
“the Summons and Complaint appeared in [their] mailbox in Maryland.”
(Dkt. No. 6-1 at 2).

4

(D.S.C. 1996) (adopting the “proper service rule”).

In 1999,

however, the United States Supreme Court resolved the statute’s
ambiguity and settled this debate by holding that the thirty-day
removal period is only triggered upon proper service of process.
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
356 (1999).
In this case, as Maryland residents, the Barkers were entitled
to service under W. Va. Code § 56-3-31(d) through the Secretary of
State.

Thus, Emery did not properly serve the Barkers until March

17, 2014.

(Dkt. No. 5-7 at 4).

Therefore, under Murphy Brothers,

the Barkers’ April 8, 2014 notice of removal was filed well within
the permissible time period.
III.
For these reasons, the Court DENIES Emery’s motion to remand.
Also, because the Barkers have been properly served, the Court
DENIES their motion to dismiss or quash summons AS MOOT.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: May 19, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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