Kelly v. West Virginia Regional Jail Correctional Facility Authority et al

Filing 35

MEMORANDUM OPINION AND ORDER denying 3 MOTION by Farrell G. Kelly to remand and for expenses. Signed by Judge John T. Copenhaver, Jr. on 11/8/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FARRELL G. KELLY,
Plaintiff,
v.

Civil Action No. 2:18-cv-1074

WEST VIRGINIA REGIONAL JAIL CORRECTIONAL
FACILITY AUTHORITY, and CORRECTIONAL
OFFICER BARRETT, and CORRECTIONAL OFFICER
GRAHAM, and CORRECTIONAL OFFICER DILLARD,
and CORRECTIONAL OFFICER WOOD, and
CORRECTIONAL OFFICER MILLER, and CORRECTIONAL
OFFICER CHANNEL, and JOHN/JANE DOE,

Defendants.
MEMORANDUM OPINION AND ORDER
Pending is a motion to remand filed by the plaintiff on
July 20, 2018.

I. Background
This is an excessive force case originally filed in the
Circuit Court of Kanawha County, West Virginia.

The plaintiff was

a pre-trial detainee incarcerated at Tygart Valley Regional jail
who claims that unwarranted use of force was used against him by
the defendant police officers.

Amended Compl. ¶ 1.

Mr. Kelly

brought three separate counts in his amended complaint, including
a Section 1983 claim, assault and battery, and intentional
infliction of emotional distress.

On June 22, 2018, the West

Virginia Regional Jail and Correctional Facility Authority
(“WVRJA”)

removed based on federal question jurisdiction, and

filed its answer to the amended complaint in the circuit court.
Plaintiff moved for remand, arguing that removal was untimely.
Specifically, Mr. Kelly contends that because the defendant was
served on May 21, 2018, but filed its notice of removal on June
22, 2018, the WVRJA did not comply with 28 U.S.C. § 1446(b),
insofar as the statute requires that removal occur within 30 days
after receipt of service.

See Mot. Remand.

II. Discussion
A defendant who seeks removal of a civil action from a
state court must file a notice of removal within 30 days after
receiving, “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 30 days after the service of
summons.”

28 U.S.C. § 1446(b).

And so, the clock on the 30-day

time limit begins to run on “formal receipt” by service of
process.

See Woodruff v. Hartford Life Group Ins. Co., 378 F.

Supp. 2d 546, 549 (D. Md. 2005) (citing Murphy Bros., Inc. v.
Michetti Pipe Striging, Inc., 526 U.S. 344, 350-53 (1999)) (“the
Supreme Court explained that the trigger for the 30-day period was
formal receipt by service of process”) (emphasis supplied).
Service on a West Virginia state agency such as WVRJA must be made
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by either: (1) delivering a copy of the summons and complaint to
“any officer, director or governor thereof” or (2) delivering
copies to an “agent or attorney in fact authorized by appointment
or by statute to receive or accept service” on the defendant’s
behalf.

See White v. Berryman, 418 S.E.2d 917, 922 (W. Va. 1992)

(citing W. Va. R. Civ. P. 4(d)(6)).
For the reasons set out in WVRJA’s response to the
motion to remand, to which plaintiff has not filed a reply,
service was not proper on May 21, 2018.

According to the

affidavit of David Farmer, Executive Director of WVRJA, the
plaintiff delivered these documents to an individual who was not
employed by the defendant.

Resp. in Opp. Remand, Exhibit C.

Rather, he worked the front desk at the address where the summons
and complaint were delivered, and where several state agencies
apparently operate, including WVRJA.

Id. at 2.

He was instead

employed by the West Virginia Department of Corrections and was
not otherwise authorized to accept service on behalf of WVRJA.
Id. at Exhibit C.

Thus, the individual who received service on

May 21, 2018 was not an officer, director, governor, or agent of
the defendant.

Accordingly, service was not proper, and the 30-

day period did not begin to run on that date.

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III. Conclusion
For the reasons stated herein, the defendant’s removal
was not untimely, and therefore, the plaintiff’s motion for remand
must be denied.

It is, accordingly, ORDERED that Mr. Kelly’s

motion to remand and for expenses be, and it hereby is, denied.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: November 8, 2018

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