Mullins v. Visiture, LLC
5:19-cv-00052
W.D. Va.Oct 23, 2019Background
- Plaintiff Patrick Mullins (Virginia) sells wood photo products as MyWoodPhoto; defendant Visiture, LLC (South Carolina) contracted to build Mullins’ ecommerce site and is sued for breach of contract.
- Mullins filed suit in Rockingham County Circuit Court on May 24, 2019 and emailed the complaint to Visiture co-founder Brian Cohen that same day.
- Formal service was made on the Virginia Secretary of the Commonwealth on May 28, 2019; the Secretary forwarded service papers to Visiture by certified mail on June 19 and filed its certificate in state court on June 24.
- Visiture’s general counsel acknowledged receipt of the complaint by email on May 29, 2019.
- Visiture asserts it did not learn service had been attempted via the Secretary until July 16, 2019 (when Mullins emailed a motion for default); Visiture filed a notice of removal on July 18, 2019.
- Mullins moved to remand for untimeliness under 28 U.S.C. § 1446(b); Visiture defended based on the timing rules for service via a statutory agent and related Fourth Circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal under 28 U.S.C. § 1446(b) | Removal untimely because removal filed more than 30 days after formal service and actual receipt (service May 28; counsel acknowledged receipt May 29). | Removal timely because defendant lacked actual notice of attempted statutory-agent service until July 16; removal filed within 30 days of that notice. | Court: Removal untimely. Clock began when (1) formal service on the Secretary occurred and (2) defendant actually received the complaint (May 29); removal on July 18 was >30 days. |
| Whether emailed complaint (without summons) combined with statutory-agent service starts the clock | Email alone without formal process cannot start Murphy Bros. clock. | When statutory agent is served, actual receipt of the complaint (even by informal means, e.g., email) starts the removal period. | Court: Formal service on the statutory agent satisfied Murphy Bros.; actual email receipt combined with that formal service started the clock. |
| Attorney fees under 28 U.S.C. § 1447(c) | Mullins sought costs and fees for improper removal. | Visiture argued it had an objectively reasonable basis to remove based on relevant precedent (e.g., Elliot). | Court: Fees denied. Although removal was untimely, Visiture’s legal argument was objectively reasonable. |
Key Cases Cited
- Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344 (1999) (formal service required to trigger defendant’s obligation to litigate).
- Elliot v. American States Ins. Co., 883 F.3d 384 (4th Cir. 2018) (when a statutory agent is served, removal period runs from defendant’s actual receipt of the complaint).
- PurAyr, LLC v. Phocatox Tech., LLC, 263 F. Supp. 3d 632 (W.D. Va. 2016) (service on Secretary brings defendant within court authority; removal period begins on actual receipt).
- Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) (attorney’s fees under § 1447(c) require that removal lacked an objectively reasonable basis).