United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones, United States District Judge.
matter is before the Court on Plaintiff's motion to
remand. Dkt. # 8. For the reasons below, the Court
GRANTS Plaintiff's motion.
states that, on October 25, 2018, he served a complaint and
summons on Defendant's registered agent. Dkt. # 8. The
summons allegedly contained both a signed and unsigned
signature page from Plaintiff's counsel. Dkt. # 8-2 at
32-33. The next day, on October 26, Defendant's counsel
called Plaintiff's counsel about the lawsuit, during
which they discussed preliminary matters. Dkt. # 8-1,
contends that the summons it received on October 25, 2018
only contained an unsigned signature page. See Dkt.
# 14, ¶ 4; Dkt. # 15 at 6. Defendant's counsel
affirms that she contacted Plaintiff's counsel on
November 13, 2018 and advised that the summons was unsigned
and therefore incomplete. Dkt. # 13, ¶3. Following the
phone call, Plaintiff's counsel emailed over a signed
summons and complaint. Id. Defendant filed a notice
of removal with this Court on November 27, 2018. Dkt. # 1. On
November 29, 2018, Plaintiff moved to remand the action to
state court. Dkt. # 8.
jurisdiction is strictly construed in favor of remand, and
any doubt as to the right of removal must be resolved in
favor of remand. Harris v. Bankers Life & Cas.
Co., 425 F.3d 689, 698 (9th Cir. 2005). The party
seeking a federal forum has the burden of establishing that
federal jurisdiction is proper. Abrego Abrego v. Dow
Chem. Co., 443 F.3d 676, 682-83 (9th Cir. 2006). The
removing party must carry this burden not only at the time of
removal, but also in opposition to a motion for remand.
See Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d
1241, 1244 (9th Cir. 2009).
28 U.S.C. § 1446(b), “[t]he notice of removal of a
civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based.” Under this statute, “a named
defendant's time to remove is triggered by simultaneous
service of the summons and complaint, or receipt of the
complaint ‘through service or otherwise,' after and
apart from service of the summons, but not by mere receipt of
the complaint unattended by any formal service.”
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 347-48 (1999).
and when formal service is completed is determined according
to state law. Lee v. City of Beaumont, 12 F.3d 933,
936-37 (9th Cir. 1993). Failure to remove a case within 30
days after the completion of formal service makes the removal
procedurally defective. Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1192 n.1 (9th Cir. 1988). In
Washington, personal service upon a company or corporation is
accomplished either by serving the president or other head of
the company or corporation, the company's registered
agent, the corporate secretary, the cashier, or the managing
agent, or by serving the secretary, stenographer, or office
assistant of any of these persons. RCW 4.28.080(9). Failure
to properly serve a defendant prevents the trial court from
obtaining personal jurisdiction over the defendant.
Crystal, China & Gold, Ltd. v. Factoria Ctr. Invs.,
Inc., 969 P.2d 1093 (Wash. App. 1999). In this case,
there is no dispute that on October 25, 2018, Plaintiff
personally served a summons and complaint on Defendant's
agent. Dkt. # 15, ¶6. The summons properly names the
defendant, advises that a response in writing must occur
within 20 days, and that default may be entered should the
defendant not respond. Id. at 5-6. Therefore, the
Court finds that the 30-day period for removal began on
October 25, 2018.
argues that the summons it received was unsigned and
therefore no service occurred until November 13, 2018, the
date that Plaintiff ultimately provided a signed summons.
Dkt. # 12 at 2-5. The Court disagrees. Washington courts have
rejected the sweeping premise that “process is
jurisdictional, ” noting that defects in the
form of a summons are not necessarily fatal.
See, e.g., Sammamish Pointe Homeowners Ass'n
v. Sammamish Pointe L.L.C., 64 P.3d 656, 659-60 (Wash.
App. 2003) (“A failure to accomplish personal service
of process is not a defect that can be cured by amendment of
paperwork. Errors in the form of original process are,
however, generally viewed as amendable defects, so long as
the defendant is not prejudiced.”); see also Codd
v. Westchester Fire Ins. Co., 128 P.2d 968, 970 (Wash.
1942) (explaining that a summons is sufficient to confer
jurisdiction upon the court when it performs the function of
giving notice according to the statutory requirements, with
such particularity and certainty as not to deceive or
mislead). Accordingly, because the purpose of the summons is
notice, Washington courts have emphasized substance over
formality. Quality Rock Prods. v. Thurston Cnty.,
108 P.3d 805, 813 (Wash. App. 2005); see also 14
KARL B. TEGLAND, WASHINGTON PRACTICE: SERVICE OF PROCESS
§ 8.2 (Supp. 2004) (“Although the courts have
rigorously enforced the statutes governing the manner of
service, the courts have been relatively lenient with respect
to the form and content of the summons.”).
Defendant cannot claim to have been materially prejudiced by
the lack of signature. For example, there is no dispute that
Defendant's counsel called Plaintiff's counsel to
discuss the lawsuit on October 26, 2018, a day after service
was made. Dkt. # 8-1, ¶¶ 4-5. Even more,
Defendant's counsel made no issue of the unsigned summons
until November 13, when she informed Plaintiff's counsel
that no response to the complaint would be forthcoming. Dkt.
# 13, ¶3. Defendant claims that remanding this case
would lead to procedural absurdities, where defendants are
burdened to remove cases from state court before they are
brought under the state court's jurisdiction. Dkt. # 12
at 4. The Court again disagrees. Defendant was undoubtedly
served with the complaint and summons, and then elected not
to remove the action within 30 days. Instead, Defendant
relied on a strict reading of Civil Rule 4 concerning the
form of process. Tellingly, Defendant has cited no authority
for the proposition that a defect in the form of a summons is
fatal to the service of process. Having found none
either, the Court concludes Defendant's argument is
the removal period ran from October 25, 2018 to November 25,
2018. Because Defendant removed the case on November 27,
2018, removal was improper. 28 U.S.C. § 1446(b). The
Court GRANTS Plaintiff's motion.