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Pattison v. Omnitrition International, Inc.

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

November 30, 2017





         Before 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.[1]


         Ms. 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.

         A. Service on the Daleys

         On 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.)

         Ms. 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.)

         B. Removal

         On 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. (Id.)

         Three 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.[2] (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).

         The 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)).)

         On 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.

         III. ANALYSIS

         The parties raise a litany of issues in their briefing of the two motions. First, the parties disagree on whether the Daleys' removal is timely.[3] 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.

         A. Timeliness of the Daleys' Removal

         The 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.

         "State 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).[4] 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 issue here.

         Ms. 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 ...

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