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Velazquez v. Logan

United States District Court, D. Arizona

October 27, 2014

Juan Velazquez, Plaintiff,
v.
James Logan, et al., Defendants.

ORDER

STEVEN P. LOGAN, District Judge.

On March 20, 2014, Plaintiff Juan Velazquez, who is confined in the Maricopa County Fourth Avenue Jail, filed a Complaint in the Superior Court of Maricopa County against Defendants James Logan, Michelle McCloskey, Tammy Hardy, Tom Manos, Sandy Wilson, and Maricopa County. On April 1, he filed an Amended Complaint. On May 2, Defendants Maricopa County, Wilson, and Manos ("Removing Defendants") filed a Notice of Removal.

On May 6, 2014, Removing Defendants and Defendant Logan filed a Notice informing the Court that they were waiting for the Court to issue a screening order before filing an answer to the Amended Complaint. On May 9, Plaintiff filed a Motion to Seal (Doc. 5) and lodged under seal a Rule 65(b) Motion (Doc. 6). On May 23, Plaintiff filed a "Response to Defendants[] Screening Motion."

On May 29, 2014, Plaintiff filed an Objection to Removal (Doc. 9). On June 4, he filed a "Request for Entry of Judgment Re: Objection to Removal" (Doc. 10). On June 12, Removing Defendants filed an Opposition to Plaintiff's Objection to Removal. On June 24, Plaintiff filed a Notice of Supplemental Authority and Arguments in Support of Objection for Removal (Doc. 12). On June 26, Removing Defendants filed a Notice of Receipt of Plaintiff's Supplemental Arguments.

On July 8, 2014, Plaintiff filed a "Notice of Non-Receipt of Responsive Pleading by Maricopa County Attorney; Request for Copy and Time to Reply" (Doc. 15). On July 9, Removing Defendants filed a Notice of Service (Doc. 16), indicating that they had sent Plaintiff another copy of their Opposition to his Objection to Removal. On July 21, Plaintiff filed a Rule 12(f) Motion (Doc. 17), seeking to strike the Opposition. On July 23, Removing Defendants filed a Notice of Receipt of Plaintiff's Motion to Strike. On August 1, Plaintiff filed a Reply.

On August 1, 2014, Plaintiff also filed a Rule 4(m) Motion for Extension of Time or Suspension of Time Pursuant to 28 U.S.C. § 1915A Screening" (Doc. 20). On August 19, Removing Defendants filed a Response to the Motion). On August 20, Defendant Logan filed a Response to the Rule 4(m) Motion.

I. Removal, Objections, and Related Filings

In their Notice of Removal, Removing Defendants seek to remove this case pursuant to 28 U.S.C. §§ 1441, 1443, and 1446. They allege that Plaintiff's Amended Complaint alleges violations of Plaintiff's civil rights under 42 U.S.C. § 1983 and that this action is "properly removed pursuant to 28 U.S.C. §§ 1441(c), 1443, and 1446(b)." They claim that they and Defendant James Logan have executed waivers of service and mailed them to Plaintiff, that Defendant Logan consents to removal and that, upon information and belief, Defendants McCloskey and Hardy have not been served.

A state court defendant may remove to federal court any civil action brought in the state court over which the federal district courts would have original jurisdiction. 28 U.S.C. § 1441(a). In his Amended Complaint, Plaintiff alleges, among other things, violations of his Fourth, Fifth, and Fourteenth Amendment rights. This Court's jurisdiction extends to such claims. See 28 U.S.C. § 1331 (a federal court has original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States"). The Court has supplemental jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(a) (court has supplemental jurisdiction over "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy"). Removal, therefore, was proper pursuant to 28 U.S.C. § 1441(a).

A. Plaintiff's Objections to Removal

In his Objection to Removal, Plaintiff raises three objections to removal. First, he claims that Removing Defendants failed to obtain unanimity, as required by 28 U.S.C. § 1446(b). He contends that Defendants McCloskey and Hardy were served by first-class mail to their last-known mailing addresses, that this constitutes proper service, and that there is no unanimity because Defendants McCloskey and Hardy did not consent to removal or join in the removal. Second, Plaintiff claims that Removing Defendants did not cite to 28 U.S.C. § 1443 "with any particularity" and, therefore, it is improper for Removing Defendants to rely on § 1443 as an "additional or independent basis for removal." Third, Plaintiff asserts that if the Court retains jurisdiction over the federal claims in this lawsuit, the Court must stay this case to allow the state court to first proceed with the state law claims. He alleges that the state court has a "primary and strong interest in resolving this suit" because of "the fact-specific content, the parties being sued and the State constitutional questions presented."

In their Opposition to Plaintiff's Objection, Removing Defendants allege that the case was properly removed pursuant to 28 U.S.C. §§ 1441, 1443, and 1446, and that Defendants McCloskey's and Hardy's consent to removal is not required because those Defendants have not been properly served.

In his Notice of Supplemental Authority, Plaintiff alleges that Removing Defendants did not provide a "short and plain statement of the grounds for removal, " as required by § 1446(a), and that the statutes on which Removing Defendants rely- §§ 1441(c), 1443, and 1446(b)-do not support removal.

In their Notice of Receipt of Plaintiff's Supplemental Arguments, Removing Defendants allege that they reviewed Plaintiff's Notice of Supplemental Authority and "determined that a supplement response is not required" because they "have already provided a full response to Plaintiff's objection."

As explained in more detail below, Plaintiff's objections do not justify remanding this action. Thus, the Court will deny Plaintiff's Objection and Notice of Supplemental Authority.

1. Defendants McCloskey's and Hardy's Consent was not Required

Under 28 U.S.C. § 1446(b)(2)(A), when a civil action is removed under 28 U.S.C. § 1441(a), "all defendants who have been properly joined and served must join in or consent to the removal of action." In his Objection to Removal, Plaintiff alleges that Defendants did not unanimously consent to removal because Defendants McCloskey and Hardy were properly served and did not consent to removal. Plaintiff relies on a document entitled "Acceptance of Service" (Doc. 1-1 at 8-9) that he filed in the Superior Court. In that document, he states that he mailed Defendants McCloskey and Hardy, by first-class mail, "a copy of the Complaint, Notice of Lawsuit and Request for Waiver of Summers, and a Waiver of Service of Summons for signature and return. Plaintiff is awaiting these responses and will notify the Court and other parties when these waivers are returned or of any other result."

Rule 4.1(d) of the Arizona Rules of Civil Procedure governs service on an individual. Like Rule 4(e) of the Federal Rules of Civil Procedure, Rule 4.1(d) requires service "upon an individual from whom a waiver has not been obtained and filed, " by delivering a copy of the summons and complaint "to that individual personally, " by leaving copies "at that individual's dwelling house or usual place of abode with some person of suitable age and discretion residing therein, " or by delivering copies "to an agent authorized by appointment or by law to receive service of process." Plaintiff contends that both individuals were served by first-class mail delivered to their last known mailing address. This is not an appropriate means of service under either Rule 4.1(d) of the Arizona Rules of Civil Procedure or Rule 4(e) of the Federal Rules of Civil Procedure.

Although both Arizona Rule of Civil Procedure 4.1(c)(2)(B) and Federal Rule of Civil Procedure 4(d)(1)(G) authorize a plaintiff to notify a defendant "by first-class mail or other reliable means" of the commencement of the action and request that the defendant waive service of the summons, a defendant is not required to waive service. If a defendant does not waive service, then a plaintiff must properly serve the summons and complaint. Larsen v. Mayo Med. Ctr., 218 F.3d 863, 867-868 (8th Cir. 2000) (if a plaintiff seeks waiver of service, but "the defendant does not waive service, service has not been effected"); Dietz v. Quality Loan Serv.e Corp. of Wash., 2014 WL 4546953, *1 (W.D. Wash. 2014) ("if the defendant does not return the waiver form, the plaintiff must still serve the summons and complaint in a manner prescribed by Rule 4"); Kotzev v. Ryan, 2011 WL 941333, *3 (D. Ariz. 2011) ("A request for waiver does not constitute effective service."); see also Lacey v. Malandro Commc'n, Inc., 2009 WL 4755399, *3 (D. Ariz. 2009) (under Arizona Rules of Civil Procedure, service was not effective until defendants signed the waiver of service form); Jenkins v. State, 2008 WL 4356274, *1 n.1 (Ariz.Ct.App. 2008) ("a plaintiff is not relieved of the duty to effect service of process merely because the defendant has not signed and returned the plaintiff's request for waiver of service"); Fed.R.Civ.P. 4 Advisory Committee Notes to 1993 Amendments ("The revised rule is clear that, if the waiver is not returned and filed, ... the action will not otherwise proceed until formal service of process is effected."). Defendants McCloskey and Hardy did not waive service and Plaintiff did not properly serve them pursuant to Rule 4.1 of the Arizona Rules of Civil Procedure or Rule 4 of the Federal Rules of Civil Procedure.

In addition, Plaintiff's reliance on Arizona Rule of Civil Procedure 5(c)(2)(c) and Federal Rule of Civil Procedure 5(b)(2)(C) is misplaced. Both Rules govern the service of papers other than the complaint. See Fed.R.Civ.P. 5(a)(1)(B) (noting that the rule applies to "a pleading filed after the original complaint"); Ariz. R. Civ. P. 5(a) (applying the rule to "every pleading subsequent to the original complaint"); Morgan v. Foreman ex rel. County of Maricopa, 973 P.2d 616, 618-19 (Ariz.Ct.App. 1999) ("Rules 4 and 4.1, rather than Rule 5, control the service of a complaint."); see also Employee Painters' Trust v. Ethan Enters., Inc., 480 F.3d 993, 995-96 (9th Cir. 2007) ("an amended complaint can often be served [under Rule 5] if the original complaint is properly served and the defendants appeared in the first instance ") (emphasis added).

Because Defendants McCloskey and Hardy were not properly served, Removing Defendants were not required to obtain their consent to remove this action.

2. Citation to 28 U.S.C. §§ 1441(c) and 1443 is Not Fatal

In his Objection, Plaintiff alleges that Removing Defendants did not cite to 28 U.S.C. § 1443 "with any particularity." In his Notice of Supplemental Authority, Plaintiff alleges that Removing Defendants did not provide a "short and plain statement of the grounds for removal" and that the statutes on which Removing Defendants rely- §§ 1441(c), 1443, and 1446(b)-do not support removal.

"While it is the usual practice to cite the section of the United States Code under which an action is removed, failure to cite the proper section in a petition for removal is not a fatal defect where an adequate basis of removal is set forth." Wormley v. Southern P. Transp. Co., 863 F.Supp. 382, 385 (E.D. Tex. 1994); see also Harlem River Produce Co. v. Aetna Cas. & Sur. Co., 257 F.Supp. 160, 164 (S.D.N.Y. 1965) ("Failure to cite the section under which removal is sought is not a fatal defect, and at most is a technical defect where an adequate factual basis for removal is set forth").

Section 1446(a) only requires "a short and plain statement of the grounds for removal." The Notice of Removal complies with that requirement because it states that the Amended Complaint alleges violations of Plaintiff's federal civil rights. As previously noted, the Court has jurisdiction over such claims under 28 U.S.C. § 1331 and, therefore, removal was appropriate under § 1441(a). Removing Defendants' citation to §§ 1441(c) and 1443, rather than § 1441(a), is, at most, a technical error, not a fatal defect, and does not require remand.

3. A Stay is Inappropriate

There is no need to stay this case to allow the state court to decide the state law claims. The Court has original jurisdiction over Plaintiff's federal law claims and will exercise supplemental jurisdiction over Plaintiff's state law claims. This Court can decide both the federal and state claims.

B. Request for Entry of Judgment Re: Objection to Removal

In his Request for Entry of Judgment, Plaintiff requests that the Court remand this case because there was no unanimous consent to removal. Because the Court has rejected this claim, the ...


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