Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
JUDY ANN PLACENCIA, )
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Plaintiff, )
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v. )
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WORLD SAVINGS BANK, FSB, a/k/a) WELLS FARGO BANK, N.A., a/k/a ) WACHOVIA MORTGAGE, A DIVISION ) OF WELLS FARGO BANK, N.A., ) f/k/a WACHOVIA MORTGAGE, FSB, ) f/k/a WORLD SAVINGS BANK FSB ) Wells Fargo Bank is of ) Address: Office of the Chief ) Financial Officer Attn: Howard Atkins, NFO (or successor) 420 Montgomery Street, 12th Floor, San Francisco, CA 94101
No. CV-10-1130-HU )
) FINDINGS & RECOMMENDATION )
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Defendant. )
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Judy Ann Placencia 32620 S.W. Lake Point Court P.O. Box 4187 Wilsonville, Oregon 97070
Plaintiff Pro Se
/ / / Pilar C. French Julie M. Engbloom LANE POWELL PC 601 S.W. Second Avenue, Suite 2100 Portland, Oregon 97204-3158
Attorneys for Defendant
HUBEL, Magistrate Judge:
Pro se plaintiff Judy Ann Placencia brings this action against defendant World Savings Bank, now Wells Fargo Bank, challenging the non-judicial foreclosure of real property. Defendant removed the action to this Court from Clackamas County Circuit Court on the basis of diversity jurisdiction.
Plaintiff moves to remand the action back to Clackamas County Circuit Court. [1] I recommend that the motion to remand be denied.
BACKGROUND
Plaintiff filed the action in state court on August 17, 2010. Exh. 1 to Notice of Removal; Exh. 1 to Engbloom Declr. in Sup. of Deft's Opp. to Remand Mtn (copy of civil docket sheet for state court case, printed from CourtTrax website). According to plaintiff, she mailed a copy of her Complaint to Wells Fargo Bank's Chief Financial Officer Howard Atkins, in San Francisco, on August 17, 2010. Exh. B to Pltf's Affid. in Sup. of Mtn to Remand at p. 2. (Express Mail receipt showing "Date Accepted" as August 17, 2010). The Certificate of Service submitted by plaintiff suggests that she mailed the Complaint on August 18, 2010, by United States Express Mail, and that another copy of the Complaint was sent by first class return receipt requested Certified Mail. Id. at p. 1. (Certificate of Service with date August 18, 2010, appearing in blue).
Curiously, the copy of this Certificate of Service that Wells Fargo received bears no sent date, in contrast to the copy plaintiff submits in support of her motion which contains a separate, additional signature next to an August 18, 2010 date, both of which are in blue ink, a different color than the first signature which is in black. Compare Exh. 3 to Engbloom Declr. at p. 1 with Exh. B to Pltf's Affid. The two documents also vary in that the first page of plaintiff's copy of the Certificate of Service has a "Clackamas County Court" date-stamp, indicating "Received August 18, 2010," while the copy received by Wells Fargo and submitted in opposition to the motion to remand does not. Compare Exh. 3 to Engbloom Declr. at p. 1 with Exh. B to Pltf's Affid.
At oral argument, plaintiff explained that she mailed the Certificate of Service appearing at page 1 of her Exhibit B on August 17, 2010, but, when she went to file it with Clackamas County on August 18, 2010, she was told she needed an "original," and she had only the copy of the undated document she had mailed, and had signed in black ink, on August 17, 2010. Thus, she re- signed, in blue ink, the copy she had with her, dated it August 18, 2010, and tendered it to Clackamas County. However, the Clackamas County Circuit Court docket sheet shows no entry of any documents being filed or received on August 18, 2010, indicating that that Court did not enter this Certificate of Service on its docket. Exh. 1 to Engbloom Declr.
The Certificate of Service at issue bears an Express Mail tracking number of EH558905525US, and a Certified Mail tracking number of 7009 3410 0000 9700 6354. Exh. B to Pltf's Affid. at p. 1. However, the postal service documents plaintiff submits on page 2 of her Exhibit B confirm only that something was sent to Atkins via Express Mail, with no return receipt requested. Id. at p. 2. The documents do not show a mailing done by Certified Mail. Id.
According to defendant, when the "Article Number" matching the Express Mail tracking number recited by plaintiff in her Certificate of Service, and shown on the postal service document on page 2 of plaintiff's Exhibit B, is entered into the postal service's tracking system on the postal service's website, it shows that this Express Mail was delivered to Wells Fargo in San Francisco on August 19, 2010. Karen Pettinger Declr. at ¶ 5; Exh. 2 to Pettinger Declr.
Plaintiff insists that defendant received the mailing on August 18, 2010. In support, plaintiff relies on a document she brought with her to oral argument, and subsequently submitted as part of the record. Pltf's Nov. 29, 2010 Affid. of Evid [dkt #23]. Exhibit A to Plaintiff's November 29, 2010 Affidavit of Evidence is a "track & confirm" sheet from the United States Postal Service showing that the Express Mail package plaintiff mailed in Portland on apparently August 17, 2010, arrived in San Francisco on August 18, 2010, with "notice left" on August 18, 2010 at 9:49 a.m., and again at 10:55 a.m., and with delivery occurring on August 19, 2010, at 10:43 a.m. Exh. A to Pltf's Nov. 29, 2010 Affid. of Evid.
According to the Declaration of Kim Wu, Manager of the Office of Consumer Affairs for the United States Postal Service in San Francisco, the tracking information on the "track & confirm" sheet shows that the package was mailed with an incorrect destination zip code of 94101. Wu Declr. at ¶ 3; Exh. 1 to Wu Declr; see also Exh. B to Pltf's Affid. at p. 2 (showing zip code of addressee as 94101). According to Wu, the correct zip code was 94104. Wu Declr. at ¶ 3; Exh. 1 to Wu Declr; see also Pltf's Exh. B at p. 2 (showing return receipt received by plaintiff with zip code of 94101 crossed out and 94104 written instead); Exh. A to Pltf's Nov. 29, 2010 Affid of Evid. (showing item logged as "missent" on August 18, 2010, at 7:38 a.m.). Wu explains that a notice was left for the recipient of the package that a package was available for pick up at 10:55 a.m. on August 18, 2010, and the package was picked up by the recipient at 10:43 a.m. on August 19, 2010. Id.
Another exhibit submitted by plaintiff shows that something bearing an "Article Number" matching the Certified Mail tracking number noted in plaintiff's Certificate of Service, was delivered to Atkins's office in San Francisco on August 20, 2010. Exh. D to Pltf's Affid. The exhibit shows the item was sent certified Mail. Id.
Finally, an additional Certificate of Service signed by plaintiff states that she delivered a copy of the Complaint to someone named Natali Basargin at a branch office of defendant's in Wilsonville, Oregon. Exh. C to Pltf's Affid. in Sup. of Mtn to Remand; Exh. 4 to Engbloom Declr. It is signed by Janet Majhor and is dated August 19, 2010. Id. It contains a notary stamp. Id.
On August 27, 2010, plaintiff filed this Certificate of Service in Clackamas County Circuit Court. Exh. 4 to Engbloom Declr. Based on this filing, the state court case docket shows that Wells Fargo was served on August 19, 2010. Exh. 1 to Engbloom Declr. at p. 2.
On September 1, 2010, Wells Fargo's registered agent, Corporation Service Company, provided Wells Fargo with Notice of Service of Process. Exh. 5 to Engbloom Declr. The notice indicates that plaintiff served a summons and complaint on CSC on August 31, 2010. Id.
Defendant removed the case from Clackamas County Circuit Court on September 20, 2010. On that date, defendant sent a "Notice to Adverse Party of Removal," along with attendant removal documents, to plaintiff at the following address: 32620 S.W. Lake Point Court, Wilsonville, Oregon 97070. Pettinger Declr. at ¶ 2.
Only one of the two certificates of service submitted by plaintiff as exhibits in support of her motion to remand, bears an address for plaintiff. Exh. B to Pltf's Affid. at p. 1. The address shown is 32620 SW Lake Point Court, Wilsonville, Oregon 97070. Id. The summons issued to defendant contains the same street address, but also lists "P.O. Box 4187" as part of the address. Exh. 3 to Engbloom Declr. at p. 1. On the first page of the Complaint filed in state court, plaintiff's name and address appear in the upper left corner with the address bearing both the street address and the post office box. Id. at p. 4. But, the signature block at the end of the Complaint, contains only the street address. Id. at p. 16.
On or about September 30, 2010, the postal service returned defendant's removal papers to defendant's counsel's office as "undeliverable." Pettinger Declr. at ¶ 3. Affixed to the front cover of the envelope was a sticker placed by the postal service which indicated "Forward Time Exp. Rtn. to Send." Id. at ¶ 3; Exh. 2 to Pettinger Declr. On or about September 30, 2010, defendant re-sent the Notice and removal papers to plaintiff at the following address: 32620 S.W. Lake Point Court, P.O. Box 4187, Wilsonville, Oregon 97070. Id. at ¶ 4. This mailing has not been returned to defendant's counsel. Id.
STANDARDS
Generally, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a); Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) ("Any civil action may be removed to federal district court so long as original jurisdiction would lie in the court to which the case is removed").
"The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1265 (9th Cir. 1999), overruled on other grounds, Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006).
Remand is governed by 28 U.S.C. § 1447(c) which provides, in pertinent part, that
[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.
28 U.S.C. § 1447(c).
The defendant has the burden of showing that it has complied with the procedural requirements for removal. Schwartz v. FHP Int'l Corp., 947 F. Supp. 1354, 1360 (D. Ariz. 1996), overruled on other grounds, Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
DISCUSSION
I. Timing of Removal
Plaintiff first argues that the case must be remanded to state court because defendant did not remove the case within the allowed thirty days. I disagree.
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 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. 28 U.S.C. § 1446(b). The thirty-day period is triggered by either the simultaneous service of the summons and complaint or the receipt of the complaint at some point after service of the summons. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 354 (1999). The removal clock does not start until a defendant receives formal service of the summons and complaint. Id. at 354.
Defendant makes a persuasive argument that plaintiff's attempted Express Mail service is invalid. Under the applicable rules for service of a summons and complaint on a corporation, primary service is effected by personal or office service on a registered agent, officer, or director of the corporation, or by personal service upon any clerk on duty in the office of a registered agent. Or. R. Civ. P. 7D(3)(b)(i). While Atkins appears to be an officer of the corporation, mailing the complaint and summons to him was neither personal service, nor office service as prescribed in the relevant rules. Or. R. Civ. P. 7D(2)(a), 7D(2)(c).
Alternatively, if a registered agent, officer, or director cannot be found in the county where the action is filed, true copies of the summons and complaint may be served by (1) substituted service upon such registered agent, officer, or director, or (2) personal service on any clerk or agent of the corporation who may be found in the county where the action is filed, or (3) mailing in the specified manner. Or. R. Civ. P. 7D(3)(b)(ii). Plaintiff's Express Mail package to Atkins was not substituted service or personal service. Id.
The mailing rules in Rule 7D(3)(b)(ii)(C) allow service on the corporation by mailing true copies of the summons and complaint, in the manner specified by separate rule, "to the office of the registered agent or to the last registered office of the corporation, if any, as shown by the records on file in the office of the Secretary of State," or, if the corporation is not authorized to transact business in the state at the relevant time, mailing may be to the principal office or place of business of the corporation. Or. R. Civ. P. 7D(3)(b)(ii)(C). For either of these options, the plaintiff is also required to send the complaint and summons to "any address the use of which the plaintiff knows or has reason to believe is most likely to result in actual notice[.]" Id. Finally, service may also be made upon the Secretary of State in the specified manner. Or. R. Civ. P. 7D(3)(b)(ii)(D).
Assuming plaintiff mailed the summons and Complaint to Atkins on August 17, 2010, plaintiff's Express Mail service on Atkins in the manner effected does not comply with Rule 7D(3)(b)(ii)(C). There is no suggestion that defendant was not authorized to transact business in Oregon at the time of the events upon which plaintiff's action is based. Thus, under the rule, plaintiff was required to serve the office of the registered agent or the office of the last registered agent as shown in the Secretary of State's records, as well as send a copy to "any address the use of which the plaintiff knows or has reason to believe is most to result in actual notice[.]"
Plaintiff may have mailed the summons and Complaint to "any address the use of which" she knew or had reason to believe would result in actual notice, but, she failed to also send the summons and Complaint to defendant's registered agent or the last registered agent shown in the Secretary of State's records. Thus, regardless of when the summons and Complaint were mailed or received, service via the Express Mail package to Atkins is invalid. Thus, while the record indicates that defendant received the package plaintiff mailed on August 19, 2010, even if service is deemed complete on August 18, 2010, as insisted by plaintiff, it was invalid under the applicable rules. [2]
Defendant concedes that the service on August 19, 2010, of the summons and complaint to one of its branches, was valid. Or. R. Civ. P. 7D(3)(b)(ii)(B). Thirty days from August 19, 2010, is September 18, 2010, a Saturday, making the deadline for removal Monday, September 20, 2010. Fed. R. Civ. P. 6(a)(1)(C) (if the last day of a specified time period is a Saturday, Sunday, or legal holiday, time period is extended to the next Monday). The case was removed and filed in this Court on September 20, 2010, within the thirty days allowed by section 1446(b). Plaintiff's motion to remand based on an alleged untimely removal, should be denied. II. Notice to Plaintiff
Alternatively, plaintiff argues that the removal was invalid because defendant failed to obtain the consent of all adverse parties. Under 28 U.S.C. § 1446(d), a defendant who has removed an action from state court to federal court must "promptly" after the filing of the Notice of Removal required under section 1446(a), give written notice to all adverse parties and shall file a copy of the notice with the clerk of the state court. 28 U.S.C. § 1446(d). Plaintiff states that because she was never served with the Notice of Removal, defendant's removal of this action is invalid. [3]
This Court maintains an electronic docketing system referred to as "CM/ECF." Local Rule 100-4 requires lawyers admitted to the bar of this Court to be registered users of the CM/ECF system, and to maintain a current CM/ECF email account sufficient to receive service of electronic filings and court notices.
Although CM/ECF requires many court documents to be filed electronically, initiating case papers must be filed conventionally. L.R. 100-5. [4] The docket entry for the Notice of Removal shows that the papers were conventionally filed because the entry bears the initials "mkk" which are those of one of the Court's Docket Clerks. Court filings electronically filed by counsel bear the filer's name in parentheses at the end of the docket entry.
Because the initiating case papers, e.g. the Notice of Removal and its supporting documents, were conventionally filed, defense counsel was required to perfect conventional service in any manner permitted by the Federal Rules of Civil Procedure. L.R. 100-8(b). Under Rule 5(b)(2)(C), governing service of pleadings and papers other than the Complaint, mailing to the person's last known address is sufficient.
Defendant's Certificate of Service appended to the Notice of Removal indicates that on September 20, 2010, defendant mailed, via first class mail, a copy of the Notice of Removal to plaintiff at her street address of 32620 S.W. Lake Point Court in Wilsonville. Notice of Removal (dkt #1) at p. 4. As recited above, this is the address plaintiff used in the Express Mail Certificate of Service and in the signature block of her Complaint. Although the summons and the caption of the Complaint also listed a post office box, that was in addition to this same street address.
Here, unbeknownst to defendant, the postal service's ability to forward mail sent to the street address had expired and thus, the mail was returned to defendant's counsel. The record shows that defendant promptly re-sent the materials, within ten days of the original mailing and on the very day it received the undeliverable mail. This time, defendant included the post office box with the street address. The second mailing has not been returned as undeliverable. [5]
In a 2007 case discussing a similar issue, I explained the relevant law as follows:
The parties cite no relevant Ninth Circuit cases and I have found none. Recent cases suggest that the court should examine whether defendants made a good faith effort to give notice and whether the plaintiff suffered prejudice as a result of a failure of notice. For example, in Titan Finishes Corp. v. Spectrum Sales Group, 452 F. Supp. 2d 692 (E.D. Mich. 2006), the court found that the defendant complied with section 1446(d) when it filed its notice of removal on May 19, 2006, sent plaintiff's counsel an email and voice mail on May 22, 2006, and when plaintiff received written notice on May 23, 2006. Id. at 695-96. The Titan court cited favorably from an earlier
Eastern District of Michigan case which denied the plaintiff's motion to remand where the plaintiff received oral notice 10 calendar days after the filing of the notice of removal and written notice within 13 calendar days. Id. (citing Alpena Power Co. v. Utility Workers Un. of Am., Local 286, 674 F. Supp. 1286 (E.D. Mich. 1987)). In a 2006 Ohio case, the court denied a motion to remand when the defendants had mailed the notice of removal to the plaintiff's attorney at the address listed in the summons, which was different than the address listed in the complaint. Alston v. Sofa Express, Inc., No. 2:06-cv-491, 2006 WL 3331685 (S.D. Ohio 2006). The court rejected the plaintiff's argument for a strict reading of the statute and instead followed authority recognizing that when there is a good faith effort to give notice and when the plaintiff suffers no prejudice as a result of the failure to give notice, the requirements of section 1446(d) are met. Id. at *2. The court concluded that the defendants had made a good faith effort to provide notice because although a more careful review of the summons and complaint would have revealed the conflicting addresses for plaintiff's counsel, reliance on the summons accompanying the complaint was not unreasonable. Id. at *3. Furthermore, it was plaintiff who had provided the inconsistent addresses. Additionally, as soon as the mistake was discovered, necessary steps were taken to cure the problem and provide the written notice required. Id. The court observed that plaintiff's counsel filed a pro hac vice motion just nine days after the notice of removal was filed and only sixteen days after the defendants were served with the summons and complaint. Id.
Other courts have reached similar conclusions.
E.g., Arnold v. CSX Hotels, Inc., 212 F. Supp. 2d 634 (S.D. W. Va. 2002) (motion to remand denied when original mailing of Notice of Removal to plaintiff's counsel was inexplicably never delivered, but plaintiff's counsel learned of removal seven days later when it received a copy of defendant's answer showing the action was pending in federal court and defendant's counsel promptly mailed another copy of the notice of removal upon learning of the problem), aff'd, 112 Fed. Appx. 890 (4th Cir. 2004); Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d 246 (S.D.N.Y. 2000) (where the delay was relatively short and no action was taken by the state court between the time of removal and the giving of notice, the defect was harmless and created no basis for remand). Green v. Praxis Partners, LLC, No. CV-07-301-HU, Findings & Rec. at pp. 7-8 (D. Or. May 11, 2007), adopted by Judge Brown (D. Or. July 2, 2007). I still find no applicable Ninth Circuit authority on this issue, other than the general concept that "[t]he statutory time limit for removal petitions is merely a formal and modal requirement and is not jurisdictional." Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980).
The facts in the instant case are remarkably similar to those in the Alston case. Additionally, here, while plaintiff states that she has never been served a "Notice of Removal," she filed her first motion to remand on October 15, 2010, approximately two weeks after the Notice of Removal and other removal documents, were sent the second time. Moreover, three days before, on October 12, 2010, plaintiff filed, in this Court, a memorandum opposing defendant's motion to dismiss, showing that she was aware that the case was pending here.
The facts establish that defendant made a good faith effort to give notice to plaintiff. The facts further establish that plaintiff has suffered no prejudice as a result of any delay in receiving the Notice of Removal. Plaintiff's motion to remand based on a delay in receiving notice should be denied.
CONCLUSION
Plaintiff's motion to remand [14] should be denied.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due March 15, 2011. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due April 1, 2011. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED.
Dated this 25th day of February, 2011. /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge
[1] Defendant filed a motion to dismiss the case on September 25 24, 2010. Rather than filing a substantive response to that motion, plaintiff filed this motion to remand. I determine that 26 the proper course is to resolve the motion to remand first, then allow plaintiff additional time to file a response to the motion 27 to dismiss, followed by defendant's reply. This will be 28 addressed in a separate scheduling order.
[2] Notably, even if the Express Mail service was otherwise effective, the applicable rule provides that for the purposes of computing deadlines when serving by mail, service is considered complete on the day the defendant . . . signs a receipt for the mailing, or three days after the mailing if mailed to an address within the state, or seven days after the mailing if mailed to an address outside the state, whichever comes first. Or. R. Civ. P. 7D(2)(d)(ii). Although the package was received in San Francisco on August 18, 2010, as indicated above, the tracking record for the Express Mail package plaintiff sent to Wells Fargo in San Francisco, shows that defendant received the package on August 19, 2010. Pettinger Declr. at ¶ 5; Exh. 2 to Pettinger Declr.; Exh. A to Pltf's Nov. 29, 2010 Affid. of Evid.; Wu Declr. at ¶ 3; Exh. 1 to Wu Declr. Thus, even if the Express Mail service complied with the service requirements and is otherwise deemed valid, it was not effective until August 19, 2010. 28
[3] To the extent plaintiff's argument is premised on defendant having obtained the "consent" of the adverse parties to the removal, the argument is not supported by the plain language of the statute. As indicated, the statute requires "prompt notice" to the adverse parties, but not their consent.
[4] Moreover, as a non-attorney pro se party, plaintiff is 28 exempt from the rule requiring electronic filing of documents.
[5] I note that this Court made the same error. The October 4, 2010 scheduling order setting oral argument on defendant's motion to dismiss, was sent, by the Court, to plaintiff at her street address (dkt #8 showing returned mail). It was returned as undeliverable with the same comment that the time for forwarding had expired. Id. A non-public docketed staff note shows that the Court re-sent the scheduling order to plaintiff's post office box on October 13, 2010.