Failing v. Washington State Liquor and Cannabis Board et al, No. 2:2020cv00026 - Document 10 (E.D. Wash. 2020)
Court Description: ORDER DENYING MOTION TO REMAND. Plaintiffs Motion to Remand (ECF No. 6 ) is DENIED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Failing v. Washington State Liquor and Cannabis Board et al Doc. 10 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 PERRY FAILING, NO. 2:20-CV-0026-TOR Plaintiff, 8 9 10 11 12 13 ORDER DENYING MOTION TO REMAND v. WASHINGTON STATE LIQUOR AND CANNABIS BOARD, an administrative agency of the State of Washington, and PATRICK MATTHEWS, individually and as employee and agent of Washington State Liquor and Cannabis Board, 14 Defendants. 15 16 BEFORE THE COURT is Plaintiff’s Motion to Remand (ECF No. 6). This 17 matter was submitted for consideration without oral argument. The Court has 18 reviewed the record and files herein, the completed briefing and is fully informed. 19 For the reasons discussed below, Plaintiff’s Motion to Remand (ECF No. 6) is 20 DENIED. ORDER DENYING MOTION TO REMAND ~ 1 Dockets.Justia.com 1 2 BACKGROUND This case arises out of an investigation conducted by Defendants concerning 3 an alleged illegal marijuana grow operation at Plaintiff’s residence. On October 4 14, 2019, Plaintiff filed a Complaint in Spokane County Superior Court, asserting 5 claims under both federal and state law. ECF No. 3 at 6-16. On October 18, 2019, 6 a legal assistant to Plaintiff’s counsel emailed the Washington Department of 7 Enterprise Services (“DES”), stating “We have a Summons and Complaint for 8 service on DES. I am looking for instructions as to how to complete this service.” 9 ECF No. 6-4 at 3. On October 21, 2019, a DES employee responded, saying that a 10 “Risk Manager for the agency[] suggested you mail it to him.” Id. DES is not a 11 party to this suit. On October 21, 2019, Plaintiff personally served Defendant 12 Patrick Matthews. ECF No. 6-3. 13 On October 24, 2019, DES received correspondence from Plaintiff’s 14 counsel’s office, stating “I am forwarding this information to you to effect service 15 upon the Department of Enterprise Services.” ECF No. 8 at 2, ¶ 5; ECF No. 8-1. 16 The correspondence contained a copy of the Complaint, a Case Assignment Sheet, 17 and a Summons addressed to Defendant Washington State Liquor and Cannabis 18 Board (“WSLCB”). ECF No. 8 at 2, ¶ 5. On October 25, 2019, DES forwarded 19 this correspondence to a paralegal in the Attorney General’s Office. Id. 20 ORDER DENYING MOTION TO REMAND ~ 2 1 On November 13, 2019, Defendants filed an Answer in state court. ECF No. 2 3 at 24-32. On January 16, 2020, Defendants removed the case to federal court. 3 ECF No. 2. On January 29, 2020, Plaintiff filed a “Response in Opposition to 4 Removal,” which this Court construes as a Motion to Remand. ECF No. 6. 5 DISCUSSION 6 Plaintiff moves to remand this case to state court on the grounds that 7 Defendants’ removal was untimely. 1 Specifically, Plaintiff argues the Notice of 8 Removal was filed more than 30 days after Defendant WSLCB received a copy of 9 the Complaint. ECF No. 6. The federal removal statute requires that “notice of 10 removal of a civil action or proceeding shall be filed within 30 days after the 11 receipt by the defendant, through service or otherwise, of a copy of the initial 12 pleading setting forth the claim for relief upon which such action or proceeding is 13 based ….” 28 U.S.C. § 1446(b)(1). Plaintiff argues that the plain language of the 14 15 1 Plaintiff also challenges the assertion of federal diversity jurisdiction in 16 Defendants’ Notice of Removal. ECF No. 6 at 3; see ECF No. 2 at 3, ¶ 6. 17 Defendants concede that the citation to the diversity statute was in error and note 18 that the correct citation was to the federal question statute which was also included 19 in the Notice of Removal. ECF No. 7 at 9-10. In turn, Plaintiff concedes that his 20 Section 1983 claims properly support federal question jurisdiction. ECF No. 9 at 3. ORDER DENYING MOTION TO REMAND ~ 3 1 statute means WSLCB’s 30-day removal window began to run no later than 2 November 4, 2019, when counsel for Defendants entered an appearance in the 3 case, so the January 16, 2020 removal was untimely. ECF No. 6 at 4 4 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian 5 Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The removal statute has 6 historically been strictly construed against removal. Shamrock Oil & Gas Corp. v. 7 Sheets, 313 U.S. 100, 108 (1941). “[H]owever, more recent cases have softened 8 the strictness” of this principle. Myer v. Nitetrain Coach Co., Inc., 459 F. Supp. 2d 9 1074, 1076 (W.D. Wash. 2006) (citing Murphy Bros. Inc. v. Michetti Pipe 10 Stringing, Inc., 526 U.S. 344, 355 (1999)). Indeed, the Supreme Court has 11 interpreted the removal statute to mean “that a named defendant’s time to remove 12 is triggered by the simultaneous service of the summons and complaint, or receipt 13 of the complaint, ‘through service or otherwise,’ after and apart from service of the 14 summons, but not by mere receipt of the complaint unattended by any formal 15 service.” Murphy Bros., 526 U.S. at 347-48 (emphasis added). 2 Service is 16 17 2 18 2000) is misplaced in addition to not being binding on this Court. ECF No. 9 at 5- 19 6. Plaintiff’s block quote from Delgado omits the footnote which explains that 20 Delgado addresses whether service is a prerequisite to the ability to remove a case, Plaintiff’s reliance on Delgado v. Shell Oil, Inc., 231 F.3d 165, 177 (5th Cir. ORDER DENYING MOTION TO REMAND ~ 4 1 required to start the 30-day removal window because “[a]n individual or entity 2 named as a defendant is not obliged to engage in litigation unless notified of the 3 action, and brought under a court’s authority, by formal process.” Id. at 347. 4 WSLCB contends its 30-day removal window has not yet run because it has 5 not been properly served. ECF No. 7 at 6-9. Washington law requires that actions 6 against the State of Washington be served “upon the attorney general, or by 7 leaving the summons and complaint in the office of the attorney general with an 8 assistant attorney general.” RCW § 4.92.020. Plaintiff argues that service was 9 accomplished when DES forwarded the Complaint and Summons from Plaintiff’s 10 counsel to the paralegal in the Attorney General’s Office, thereby “leaving the 11 summons and complaint” in compliance with the statute. ECF No. 9 at 4, n.3. 12 However, “[w]hen the legislature has acted reasonably in naming one person or 13 officer to have the responsibility for receiving service of process, service upon 14 anyone else is insufficient.” Landreville v. Shoreline Cmty. Coll. Dist. No. 7, 766 15 P.2d 1107, 1108 (Wash. Ct. App. 1988)); see also Meadowdale Neighborhood 16 Comm. v. City of Edmonds, 616 P.2d 1257, 1260 (Wash. Ct. App. 1980) (“When a 17 statute designates a particular person or officer upon whom service of process is to 18 19 while Murphy Bros. addresses whether service is a prerequisite to start the running 20 of the 30-day removal clock. Delgado, 231 F.3d at 177, n.23. ORDER DENYING MOTION TO REMAND ~ 5 1 be made …, no other person or officer may be substituted.”). “Actual notice to the 2 State, standing alone, is not sufficient” to acquire jurisdiction over the State 3 without proper service. Landreville, 766 P.2d at 1108 (finding that leaving the 4 summons and complaint with an administrative assistant in the Attorney General’s 5 Office was insufficient under RCW § 4.92.020). 6 Here, state law is clear that service on WSLCB must be accomplished upon 7 the Attorney General or by leaving the summons and complaint in the Attorney 8 General’s Office with an Assistant Attorney General. RCW § 4.92.020. Plaintiff 9 has done neither. Instead, while this matter was pending in state court, Plaintiff 10 mailed 3 a copy of the summons and complaint to DES, which forwarded the 11 documents by email to a paralegal in the Attorney General’s Office. Even if this 12 Court were to accept Plaintiff’s unsupported position that DES could effectuate 13 service on Plaintiff’s behalf, receipt by the paralegal is still insufficient under the 14 statute. Landreville, 766 P.2d at 1108. Additionally, the fact that WSLCB has had 15 16 3 The Court notes that Washington law only authorizes service by mail “by 17 court order on a case-by-case basis.” In re Marriage of Maiers, 163 Wash. App. 18 1015, at *3 (Aug. 23, 2011) (unpublished); see also 14 Wash. Prac., Civil 19 Procedure § 8:30 (3d ed.). There is no evidence that Plaintiff received such leave 20 in this case. ORDER DENYING MOTION TO REMAND ~ 6 1 actual notice of this case is immaterial to the question of proper service. Id. 2 Because Plaintiff failed to comply with the statutory service requirements in this 3 case, WSLCB has not been properly served. Therefore, WSLCB’s 30-day window 4 of removal has not begun to run under the federal statute. Murphy Bros., 526 U.S. 5 at 347-48. Defendants’ Notice of Removal was not untimely, and Plaintiff is not 6 entitled to remand on this ground. 7 ACCORDINGLY, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion to Remand (ECF No. 6) is DENIED. 9 2. The District Court Executive is directed to enter this Order and furnish 10 11 copies to counsel. DATED March 11, 2020. 12 13 THOMAS O. RICE Chief United States District Judge 14 15 16 17 18 19 20 ORDER DENYING MOTION TO REMAND ~ 7
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