United States District Court, W.D. Washington, Seattle
ORDER REMANDING CASE
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court are (1) Defendants Roger M. Daley and Barbara
Daley's (collectively, "the Daleys") motion for
leave to file an amended notice of removal (MTA (Dkt. # 24));
and (2) Plaintiff Deana Pattison's motion to remand this
matter to state court (MTR (Dkt. #12)). The court has
considered the motions, the parties' submissions in
support of and in opposition to the motions, the relevant
portions of the record, and the applicable law. Neither party
requests oral argument for either motion. Being fully
advised, the court GRANTS the Daleys' motion for leave to
file an amended notice of removal and GRANTS Ms.
Pattison's motion to remand. Because the court remands
this action to King County Superior Court, the court DENIES
as moot the remaining pending motions.
Pattison originally brought this putative class action
against Defendants Omnitrition International, Inc.
("Omnitrition"), the Daleys, and Does 1-100 serving
as Omnitrition distributors (collectively, "the original
Defendants") on July 25, 2017, in King County Superior
Court. (See Torres Decl. (Dkt. # 13) ¶ 2, Ex.
A; Beneski Decl. (Dkt. # 3) ¶ 2, Ex. A
("Compl.") ¶¶ 2.2-2.4.) She asserted that
the original Defendants engaged in the "illegal and
deceptive practice of manufacturing, promoting, marketing,
selling, and distributing" weight-loss products, called
Omni Drops, containing human chorionic gonadotropin
("hCG"), a hormone that has been prescribed to
assist weight loss. (Compl. ¶ 1.1-1.2, 4.15.) Relying on
the original Defendants' representations and
advertisements that users will experience "significant
and rapid weight loss, " Ms. Pattison purchased Omni
Drops and was allegedly "misled into purchasing and
paying for a product that is not as represented."
(Id. ¶ 4.32.) Because the two motions before
the court concern issues of service and removal, the court
details the facts relevant to both issues.
Service on the Daleys
August 8, 2017, Ms. Pattison attempted to serve the Daleys at
their residence. (Beneski Decl. ¶ 2, Ex. A-6
("Daleys Aff. of Serv.") at 1.) The process server
presented the summons and complaint to a "John Doe"
who "tried to refuse service by picking [the] documents
up and placing [the] documents outside of the property."
(Id.) The man "came out of [the] garage"
and demanded that the server leave the premises.
(Id.) The server left the papers at the man's
feet, and the man "picked up the paperwork and ...
placed the paperwork into [the] server's open Jeep
window." (Id.) The server "nudged [the]
paperwork out of [the] vehicle" and left. (Id.)
The Daleys have since attested that John Doe is their son,
who "reported to [the Daleys] that he spoke with a
person who attempted to present him with documents on August
8, 2017 when [he] was visiting [the] home." (Roger Daley
Decl. (Dkt. # 4) ¶ 4; Barbara Daley Decl. (Dkt. # 5)
¶ 4.) The Daleys state that their son does not live at
the house and was simply visiting on that day. (Id.)
The Daleys further state that they are the only residents at
their home. (Id. ¶ 5.)
Pattison later prepared an "Acceptance of Service,
" which she sent to counsel for the Daleys. Counsel for
the Daleys executed and returned this document on September
27, 2017, thus establishing acceptance of service. (2d
Beneski Decl. (Dkt. # 21) ¶ 5, Ex. Cat 1-2.)
September 22, 2017, counsel for the original Defendants
conferred with Ms. Pattison's counsel and advised that
the Daleys were considering removing the case to federal
court. (2d Beneski Decl. ¶ 2.) Counsel inquired as to
whether Ms. Pattison's counsel was aware of any basis on
which removal would be improper. (Id.) Ms.
Pattison's counsel pointed only to the unidentified Doe
defendants, noting that some may be domiciled in Washington.
days later, on September 25, 2017, Ms. Pattison filed an
amended complaint in state court. (See Torres Decl.
¶ 2, Ex. A; FAC (Dkt. # 1-2).) The amended complaint
added Jennifer Van Vynck, who resides in Washington and does
business as Jennifer Van Vynck Omnitrition Independent, as a
defendant. (FAC ¶ 2.5.) Ms. Pattison brings four claims
against Ms. Van Vynck: violation of the Washington's
Consumer Protection Act ("CPA"), RCW 19.86, through
unfair and deceptive acts or practices, fraud,
misrepresentation, and unjust enrichment. (Id.
¶¶ 6.1-6.22.) The complaint alleges that Ms. Van
Vynck "marketed and sold Omnitrition's hCG Omni
Drops to [Ms.] Pattison." (Id.) It further
asserts that she, along with the original Defendants,
(collectively, "Defendants") "engaged in
unfair and deceptive acts or practices" (id.
¶ 6.2), "marketed and represented that
Omnitrition's hCG Omni Drops were approved for
homeopathic use by the FDA" (id. ¶ 6.7)
and knew that this was not true (id, ¶ 6.9) but
continued to make these misrepresentations to sell Omni Drops
(see Id. ¶¶ 6.10-6.13).
same day, the Daleys filed a notice of removal on the basis
of diversity jurisdiction. (Not. of Removal (Dkt. # 1) ¶
4.) As to Ms. Van Vynck, the Daleys claimed that because she
had not yet been served, her citizenship is not considered
when determining whether an action is removable on the
grounds of diversity jurisdiction. (Id. ¶ 5iv
(citing Pullman Co. v. Jenkins, 305 U.S. 534 (1939);
Republic W. Ins. Co. v. Int'l Ins. Co., 765
F.Supp. 628, 629 (N.D. Cal. 1991)).)
October 5, 2017, Ms. Pattison moved to remand for lack of
complete diversity and insufficient amount in controversy.
(See generally MTR); see also
28U.S.C.§1332. The Daleys subsequently moved to amend
their notice of removal, eliminating their lack of service
argument and instead purporting that "Ms. Van
Vynck's citizenship may be disregarded because she has
been fraudulently joined." (Am. Not. of Removal ¶
6.b.iv.) The court now addresses the two motions.
parties raise a litany of issues in their briefing of the two
motions. First, the parties disagree on whether the
Daleys' removal is timely. Second, the parties dispute
whether the Daleys may amend their grounds for removal,
namely whether they may now argue that fraudulent joinder
preserves complete diversity. And lastly, even if amendment
is allowed, the parties disagree on the merits of removal and
whether federal jurisdiction exists. The court addresses each
issue in turn.
Timeliness of the Daleys' Removal
parties agree that the Daleys had 30 days after service of
process to file a notice of removal and that the Daleys filed
their notice of removal on September 25, 2017. (MTA Resp.
(Dkt. # 31) at 2; MTA Reply (Dkt. # 38) at 1); see
also 28 U.S.C. § 1446(b). However, the parties
disagree on when service of process was completed and
consequently, when the 30-day clock expired. (See
id.) Ms. Pattison maintains that substitute service of
process was completed on August 8, 2017. (See MTR
Reply at 2; MTA Resp. at 2-4.) The Daleys purport that the
substitute service of process was not properly accomplished
and thus, service was not completed until counsel accepted
service on September 27, 2017. (MTA Reply at 1-2.) Thus, the
timeliness issue boils down to whether the substitute service
of process on August 8, 2017, was valid.
law governs the sufficiency of the state court process."
Whidbee v. Pierce Cty., No. C14-0683RBL, 2014 WL
7185401, at *2 (W.D. Wash. Dec. 16, 2014). Thus, the court
looks to Washington law to determine whether the August 8,
2017, substitute service of process was valid. Under
Washington law, a defendant may be served "by leaving a
copy of the summons at the house of his or her usual abode
with some person of suitable age and discretion then resident
therein." RCW 4.28.080(16). Accordingly, a plaintiff
must satisfy three elements to effectuate substitute service
of process: (1) a copy of the summons must be left at the
defendant's usual abode; (2) with some person of suitable
age and discretion; and (3) the person was at that time a
resident at the house. See Wichert v. Cardwell, 812
P.2d 858, 859 (Wash. 1991); 'Salts v. Estes, 943
P.2d 275, 277 (Wash. 1997). Only the third element is at
Pattison relies on Wichert v. Cardwell for her
proposition that the substitute service of process statute,
and the definition of a "resident, " ought to be
construed liberally. (MTA Resp. at 3-4.) In Wichert,
the court considered the validity of service on the
defendants' adult daughter, who had stayed at the
residence the night before but lived in her own apartment.
812 P.2d at 859. The court noted that "resident"
was an "elastic" term and thus judged the
sufficiency of service based upon whether the method used is
one that "a plaintiff 'desirous of actually
informing the absentee might reasonably adopt to accomplish
it.'" Id. at 860 (quoting Mullane v.
Cent. Hanover Bank & Tr. Co.,339 U.S. 306, 315
(1950)). Applying that standard, the court held that
"[s]ervice upon a defendant's adult child who is an