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Levy v. Salcor, Inc.

United States District Court, W.D. Washington, Tacoma

February 25, 2014

RONALD A. LEVY, individually, and on behalf of a class of persons similarly situated, Plaintiff,
SALCOR, INC., et al., Defendants.


BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the Plaintiff's motion to remand (Dkt. 15). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


This case is a Washington State products liability and consumer protection class action. On December 4, 2013, Plaintiff filed a complaint against Defendants in Kitsap County Superior Court. Dkt. 1-1. On December 9, 2013, Defendants were served with a summons and a copy of the complaint, among other documents in Fallbrook, California. Dkt. 16 at 2-3. On January 9, 2014, Defendants filed a notice of removal with the Court. Dkt. 1.

Defendants' notice of removal states that "[r]emoval of this action is... timely, in that Defendants have filed this Notice of Removal within 30 days of receiving the Summons and Complaint." Dkt. 1 at 2 ( citing 28 U.S.C. § 1446(b)).

On January 23, 2014, Plaintiff filed the instant motion to remand on the basis that removal was untimely by one day and remand is therefore mandatory. Dkt. 15. On February 10, 2014, Defendants responded in opposition, conceding they filed the notice of removal thirty-one days after they were issued the summons and complaint. Dkt. 19. Yet, they nevertheless argue removal was timely. Id. On February 14, 2014, Plaintiff filed a reply. Dkt. 21.


This motion asks the Court to determine whether removal was timely pursuant to 28 U.S.C. § 1446(b)(1). This question breaks down into two issues: the first is whether Plaintiff complied with RCW 4.28.185(4) and the second relates to whether the Complaint alleges an amount in controversy in excess of $5, 000, 000 under the Class Action Fairness Act ("CAFA").[1] Additionally, Plaintiff also seeks attorneys' fees and costs incurred as a result of having to make this motion pursuant to 28 U.S.C. § 1447(c). Each issue addressed below.

A. RCW 4.28.185(4)

As noted above, the parties do not dispute the service of the summons and complaint was made to out-of-state Defendants on December 10, 2013. Dkt. 19 at 6. According to Plaintiffs, this would make Defendants' removal of the state court action untimely by one day. Dkt. 15 at 3-4 (citing 28 U.S.C. § 1446(b)(1) (requiring notice of removal be filed within 30 days of service of process) and Schmitt v. Insurance Co. of N.A., 845 F.2d 1546, 1551 (9th Cir. 1988) (the 30-day time limit is "mandatory" and when not met requires remand)).

However, the Defendants contend that Plaintiff has failed to comply with RCW 4.28.185(4), making Plaintiff's service of the summons and complaint valid on the date the affidavit regarding out-of-state service was filed. Defendants string-cite federal cases for the proposition that the 30-day removal period is not triggered until valid service is made. Dkt. 19 at 17. They are inapposite, as none of them involved the affidavit for out-of-state service requirement set forth in RCW 4.28.185(4). Each case involved non-compliance with other Washington service-of-process statutes. As discussed above, Washington law requires strict compliance with those other service-related statutes but only substantial compliance with RCW 4.28.185(4), and Plaintiff has substantially complied here. See Haberman v. WPPPS, 109 Wn.2d 107, 177 (1987)

RCW 4.28.185(4) states in relevant part: "[p]ersonal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state." However, in contrast to the strict compliance Washington law requires of other service of process-related statutes, such as RCW 4.28.080, see, e.g., Haberman, 109 Wn.2d at 177, Washington courts have uniformly held that "substantial and not strict compliance" with the affidavit requirement of RCW 4.28.185(4) is sufficient. Barr v. Interbay Citizens Bank of Tampa, 96 Wn.2d 692, 696 (1982); Golden Gate Hop Ranch, Inc. v. Vesicol Chem. Corp., 66 Wn.2d 469, 472 (1965).

The filing of the affidavit does not change the date that service of process actually occurred. As a result, absent a showing of prejudice, a plaintiff substantially complies with the affidavit requirement of RCW 4.28.185(4) so long as the affidavit is filed before judgment is entered. Barr, 96 Wn.2d at 696 ("As [the affidavits] were filed before judgment, the affidavits were timely."); Golden Gate Hop Ranch, 66 Wn.2d at 354 ("The statute does not provide that the affidavit must be filed before the summons and complaint are served...."); Barer v. Goldberg, 20 Wn.App. 472, 482 (1978) ("No particular time of filing is required as long as it precedes the judgment."); Java Trading Co., Inc. v. Perf. Food Grp. Co., 2005 WL 2291116, at *1 (W.D. Wash. 2005) ("It is well-settled, however, that a party substantially complies with Washington's long-arm statute when it files the out of state service affidavit prior to entry of judgment").

In this case, Defendants were served with their summons and complaint on December 10, 2013, and Plaintiff filed the 4.28.185(4) affidavit on January 22, 2014, approximately seven weeks after the service of the summons and complaint. The Defendants do not demonstrate that ...

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