United States District Court, D. Arizona
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Bad Kitty Incorporated's
Motion to Remand to State Court (Doc. 15). For the following
reasons the motion is granted.
Bad Kitty Inc., an Arizona corporation, filed this suit
against Guotai USA Company, Ltd. (“Guotai”) and
Jiangsu Guotai Litian Enterprises, Co. (“Guotai
China”). The suit was originally filed in the Superior
Court for Maricopa County on October 9, 2018. Guotai removed
the case to this Court on February 11, 2019. (Doc. 1). Bad
Kitty now petitions for remand to state court.
28 U.S.C. § 1332, federal district courts have
jurisdiction over actions between citizens of different
states where the amount in controversy exceeds $75, 000. If
an action meeting those qualifications is filed in state
court, the defendant(s) in the case may remove the action
“to the district court of the United States for the
district and division embracing the place where such action
is pending.” 28 U.S.C. § 1441(a).
Guotai's removal was untimely.
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.” 28 U.S.C. §
1446(b)(1). “[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 the 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,
“[t]he parties agree on how to count to thirty, but
they disagree over when to begin counting.”
Anderson v. State Farm Mut. Auto. Ins. Co., 917 F.3d
1126, 1128 (9th Cir. 2019). The nub of the dispute here
centers on whether Bad Kitty validly served Guotai on January
2, 2019. If that service was valid, then Guotai's removal
on February 11, 2019 was untimely under § 1446(b)(1) and
the case must be remanded. Under Arizona law, a corporation
located outside of the state but within the United States may
be served by:
delivering a copy of the summons and the pleading being
served to a partner, an officer, a managing or general agent,
or any other agent authorized by appointment or by law to
receive the service of process and-if the agent is one
authorized by statute and the statute so requires-by also
mailing a copy of each to the defendant.
Ariz. R. Civ. P. 4.2(h). The statute thus provides multiple
options for service and only requires an additional mailing a
copy of the summons and pleading if the person served is an
agent “authorized by statute and the statute so
requires.” Id. See also Mid-Nebraska Tractor Co. v.
Teel, No. CV-16-00537-TUC-CKJ, 2017 U.S. Dist. LEXIS
15602, at *5 (D. Ariz. Feb. 2, 2017). In Arizona, “the
rules are to be liberally construed as to service of process
on foreign corporations.” Schering Corp. v.
Cotlow, 94 Ariz. 365, 368, 385 P.2d 234, 237 (1963).
January 2, 2019, a process server delivered a copy of the
Summons, Complaint, Certificate on Compulsory Arbitration,
and various exhibits to Guotai's offices. The documents
were served on a woman who identified herself as
“Bertha, ” the “person in charge” at
the office. (Doc. 1-3 at 45). The documents were then placed
on the desk of Joseph Cohen, Guotai's CEO. (Doc. 17 at
3). The proof of service form also states that the process