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Camarata v. Department of Social and Health Services

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

January 8, 2018

GENE CAMARATA, Plaintiff,
v.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES, KEVIN QUIGLEY, DAVID STILLMAN, and TIMOTHY SHELP, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO REMAND TO THURSTON COUNTY SUPERIOR COURT

          ROBERT J. BRYAN, United States District Judge

         THIS 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.

         Plaintiff 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).

         BACKGROUND

         The parties agree on the facts essential to the merits of this motion.

         Plaintiff 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. §1983.

         While 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[1].

         Prior 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.

         All four of the defendants jointly removed the case on October 27, 2017. Dkt. 1.

         Plaintiff filed the Motion to Remand on November 27, 2017. Dkt. 14.

         DISCUSSION

         According to Plaintiff, the removal by Defendants is untimely under 28 U.S.C. 1446(b).

         The statute provides:

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 ...

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