United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
J. HAZEL, United States District Judge.
removal action stems from Plaintiff Arelis Tinoco's claim
of sex discrimination, hostile work environment based upon
sex, and retaliation under Title 20 of the State Government
Article of the Maryland Annotated Code § 20-1202 for
violations of Chapter 27 of the Montgomery County Code
against Defendant Thesis Painting, Inc. Pending before the
Court is Plaintiffs Motion to Remand, ECF No. 18. A hearing
is unnecessary. Loc. R. 105.6 (D. Md. 2016). For the reasons
stated below, the Court will deny Plaintiffs Motion to
January 20, 2016. Plaintiff commenced the above-captioned
matter in the Circuit Court for Montgomery County, Maryland.
ECF No. 1-1 ¶ 1. Plaintiff brought this case pursuant-to
Md. Code, State Gov't § 20-1202, which allows a
person who is "subjected to a discriminatory act
prohibited by the county code" to maintain a civil
action against the person that committed the alleged
discriminatory act. Md. Code, State Gov't § 20-1202.
March 15, 2016, Defendant removed the matter to this Court.
ECF No. 1. That same day. Defendant filed a Motion to Dismiss
based on improper venue and failure to state a claim, moving
in the alternative to transfer the case to the Eastern
District of Virginia. ECF No. 3 at I.In response to the standing
order concerning removal issued by the Court, Defendant filed
a statement explaining the basis for removal on March 22,
2016 ("Removal Statement"). ECF No. 16. On April
14, 2016, Plaintiff filed the presently pending Motion to
Remand, arguing that Defendant's request for removal was
untimely. ECF No. 18 at 1-2. Defendant submitted a Response
in Opposition to Plaintiffs' Motion for Remand, ECF No.
19, and Plaintiff filed a timely Reply, ECF No. 20.
defendant must file a notice of removal within thirty days of
receiving a copy of the initial pleadings setting forth the
claim for relief. See 28 U.S.C. § 1446(b)(1).
This thirty-day window is trigged when the Defendant is
formally served with the summons and complaint;
"informal receipt of a complaint is not sufficient.
" See Hill v. Barker, No. CIV. A. DKC2005-1037,
2005 WL 1271851, at *2 (D. Md. May 26, 2005)(citing
Murphy Bros., Inc. v. Micheiii Pipe Stringing. Inc..
526 U.S. 344, 350-53 (1999)). When a case is removed to
federal court, "state law determines whether service of
process was properly effected prior to removal."
Steverson v. HSBC Auto Fin., Inc., No. CIV.A. DKC
10-3119, 2011 WL 1103164, at *4 (D. Md. Mar. 23, 2011). As
the removing party. Defendant "bears the burden of
establishing the right to removal, including compliance with
the requirements of 28 U.S.C. § 1446(b)."
Kluksdahl v. Muro Pharm., Inc., 886 F.Supp. 535, 537
(ED. Va. .1995). Federalism concerns dictate a strict
construction of the removal statute and doubts should be
resolved against the removing party. See Mulcaheyv.
Columbia Organic Chemicals Co., 29 F.3d 148. 151 (4th
Cir. 1994); see also Hill 2005 WL 1271851, at *2 (D.
Md. May 26, 2005). Here, Defendant has met their burden of
demonstrating that they made a timely motion for removal;
thus, the Court will deny Plaintiffs Motion to Remand.
Motion to Remand, Plaintiff claims that removal was untimely
because a copy of the summons and complaint was delivered to
Defendant's law firm on February 8, 2016, and Defendant
did not file their notice of removal until March 15, 2016,
six days after the thirty day window expired. ECF No. 18-1 at
1. In support of this claim, Plaintiff submits a return
receipt dated February 8, 2016, bearing the signature of Ms.
Daill D. Hyde, ECF No. 18-3, and notes that there is a
rebuttable presumption that a signed return receipt denotes
proper service. ECF No. 18-1 at 4, By contrast, in their
Removal Statement, Defendant alleged that service was invalid
because Ms. Hyde, an employee of a law firm unaffiliated with
Defendant or their counsel, was not an agent authorized to
accept service on Defendant's behalf. ECF No. 16 at 2.
Accompanying the Removal Statement is a declaration from Ms.
Hyde, affirming that she was not authorized to accept service
on Defendant's behalf, and from Defendant's attorney,
Ms. Nancy Greene, affirming that Ms. Greene was the only
person authorized to accept service of process on behalf of
her law firm, the Greene Law Firm, and she was out of town on
the date in question. ECF No. 16-1; ECF No. 16-2.
Molar sports. LLC v. Pharbco Mktg. Grp., Inc., 104
F.Supp.2d 590 (M.D. N.C. 2000), cited by Defendants, is
on-point and persuasive in resolving this issue. There,
plaintiff argued that service of process was completed when
the summons and complaint were signed for on March 5, 1999,
making the April 7, 1999 removal untimely. Id. at
594. But the defendant submitted affidavits establishing that
the individual who signed for the documents was not
authorized to act as an agent for the defendant. Id.
at 595. Thus, the court held that the defendant had rebutted
the presumption that plaintiffs attempted service was proper
and further held that the period for removal did not begin
until the summons and complaint were delivered to
defendant's president on March 9, 1999, making the notice
of removal timely. Id. at 596.
here, while Plaintiff has made a prima facie showing
of proper service by attaching a signed return receipt.
Defendant has rebutted that evidence with the declarations of
Ms. Hyde and Ms. Greene stating that Ms. Hyde was not an
authorized agent of the Green Law Firm, and that the only
authorized agent, Ms. Green, did not receive the certified
mail signed for by Ms. Hyde. ECF No. 16-1; ECF No. 16-2.As
was the case in Triad Motor sports, LLC, this
evidence is sufficient to rebut the presumption of proper
service. See also. Hill, 2005 WL 1271851, at *3 (D.
Md. May 26, 2005) (declaration by defendant that he did not
sign receipt and had not appointed an agent for that purpose
sufficient to rebut presumption). Indeed, unlike in
Hill where there was a second, later instance of
effective service. Plaintiff has produced no evidence that
they ever properly served Defendant. Therefore, their notice
of removal cannot be considered untimely since their thirty
day clock never started to run. C.f. Novak v. Bank of New
York Mellon Trust Co.. NA., 783 F.3d 910, 911 (1 st Cir.
2015) ("We conclude that service is generally not a
prerequisite for removal and that a defendant may remove a
state-court action to federal court any time after the
lawsuit is tiled but before the statutorily-defined period
for removal ends.")
tries to avoid this outcome by claiming that Defendant's
argument is "fundamentally an assertion of improper
service, '" which it waived when it failed to object
to service in its Motion to Dismiss. ECF No. 18-1 at 5. As
Defendant correctly notes, however, while Federal Rule of
Civil Procedure 12(h) states that insufficient service of
process is waived as a defense to a claim if not raised in a
motion to dismiss or responsive pleading, nothing in the text
of Rule 12(h) precludes the Court from considering defective
service in determining the timeliness of a Motion to Remand.
ECF No. 19 at 6. Cases cited by Plaintiff addressing waiver
in the context of whether dismissal of a claim is appropriate
under Rule 12 are therefore inapposite. See, e.g.. Smith
v. EVB, el al. No. CIV.A. 3:09-CV-554, 2010 WL 1253986,
at *5 (E.D. Va. Mar. 23. 2010) (allowing plaintiff to amend
complaint because waiver of defense of improper meant that
amendment would not be futile); see also Patterson v.
Whitlock, 392 F.App'x 185. 192 (4th Cir. 2010)
(reversing a district court's dismissal of a case on
improper service grounds, where defendants had waived the
defense by not including it in a prior motion construed as a
motion to dismiss).
is not asking for the case to be dismissed based on improper
service, a request that would indeed be waived since
Defendant did not include the argument in their first Motion
to Dismiss. See Fed, R. Civ. Pro. 12(h). Instead,
Defendant is making a timeliness argument, with lack of
service a supporting fact to show that their motion to remove
was timely. A failure to include improper service in a Motion
to Dismiss does not preclude the court from considering
service when deciding whether or not removal was timely.
accordance with the foregoing, it is hereby ORDERED that
Plaintiffs' Motion to Remand, ECF No. 1 8 is DENIED.
Plaintiff will have fourteen days (14) from the date of this
order to ...