United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION TO REMAND TO
THURSTON COUNTY SUPERIOR COURT
J. BRYAN, United States District Judge
MATTER comes before the Court on Plaintiff's Motion to
Remand to Thurston County Superior Court. Dkt. 14. The Court
has considered the motion, Defendants' Response (Dkt.
15), and the remainder of the file herein. Plaintiff did not
file a Reply.
seeks remand under 28 U.S.C. 1447 for untimely removal from
Thurston County Superior Court on the basis that removal
occurred more than 30 days after receipt of the Complaint.
The motion should be denied, because (1) actual service of
process is a prerequisite for the running of the 30-day
removal period, Murphy Bros. and Michetti Pipe Stringing,
Inc., 526 U.S. 344 (1999); and (2) Plaintiff served
Defendant Quigley on September 27, 2017, a date within 30
days of removal, October 27, 2017, and although Plaintiff
served Defendant DSHS on October 28, 2016, this circuit has
rejected the first-served rule in favor of the later-served
rule, Desfino v. Reiswig, 630 F.3d 952, 955-58
(9th Cir. 2011).
parties agree on the facts essential to the merits of this
served the Complaint on Defendant DSHS on October 28, 2016
and filed the Complaint and summons in Thurston County
Superior Court on January 26, 2017. The Complaint names four
defendants, DSHS, Kevin Quigley, David Stillman, and Timothy
Shelp, and all four defendants are represented by the same
Assistant Attorney General. The Complaint alleges state law
claims and constitutional violations under 28 U.S.C.
the case proceeded in Thurston County Superior Court, the
Assistant Attorney General filed pleadings on behalf of all
four defendants, including an Answer to the Complaint raising
the insufficient service of process, and a Scheduling
Questionaire requesting that the matter be set for trial. On
August 25, 2017, Defendant DSHS filed a motion for summary
judgment that included the Complaint as an attachment, and
the Thurston County Superior Court granted summary judgment
in part, dismissing state law tort claims against Defendant
DSHS without prejudice for Plaintiff's failure to observe
a required 60-day waiting period. Approximately 60 days
later, Plaintiff re-filed a nearly identical complaint in
Thurston County Superior Court. The defendants in that case
also removed, and that case is before this Court. Western
Dist. Wash. Cause No. 3:17-cv-05879-RJB.
to removal, Plaintiff personally served Defendant Quigley
with the Complaint and summons on September 27, 2017.
Defendant Shelp was personally served on October 2, 2017, and
Defendant Stillman has yet to be served.
four of the defendants jointly removed the case on October
27, 2017. Dkt. 1.
filed the Motion to Remand on November 27, 2017. Dkt. 14.
to Plaintiff, the removal by Defendants is untimely under 28
The notice of removal of a civil action . . . shall be filed
within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading
setting for the claim for relief upon which such action is
based, or within 30 days after the service of summons upon
the defendant if such initial pleading has then been filed in