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McClain-Leazure v. Colvin

United States District Court, Southern District of Alabama, Southern Division

July 17, 2017

KIM MCCLAIN-LEAZURE, et al., Plaintiffs,
v.
CAROLYN COLVIN, etc., Defendant.

          ORDER

          WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the plaintiff's motion to dismiss and remand and alternative motion for default. (Doc. 2).[1] The parties have filed briefs in support of their respective positions, (Docs. 2, 4, 5, 7-1), [2] and the motions are ripe for resolution.

         The plaintiff filed this action in Alabama state court, alleging several state-law claims against the acting Commissioner of the Social Security Administration and several fictitious defendants, all arising out of her employment as an administrative law judge. (Doc. 1-1). The action was filed on February 3, 2017 and removed on April 6, 2017. The plaintiff argues that the removal was untimely and that the defendant was in default before removal was accomplished.

         The parties are in agreement regarding the chronology of events. Process was sent by certified mail to the Commissioner's published business address and was received by the mail services center on February 10, 2017. Process was forwarded to the Office of General Counsel, which received the package on or about March 2, 2017. Process was then forwarded to the Regional Office of General Counsel, which received the package on March 13, 2017. (Doc. 1 at 4; Doc. 4 at 4; Doc. 5 at 1). The defendant removed the action pursuant to 28 U.S.C. § 1442(a)(1) on April 6, 2017. The instant motion was filed on May 12, 2017.[3]

         “The 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 ….” 28 U.S.C. § 1446(b)(1).[4] “[W]e hold that 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 Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). The question presented is whether and when the plaintiff properly served process.

         The plaintiff argues that service was effected on March 2, 2017 pursuant to Alabama Rule of Civil Procedure 4(c)(8). That provision reads as follows:

(8) LOCAL GOVERNMENTS AND OTHER GOVERNMENTAL ENTITIES. Upon a county, municipal corporation, or any other governmental entity not previously mentioned, or an agency thereof, by serving the chief executive officer or the clerk, or other person designated by appointment or by statute to receive service of process, or upon the attorney general of the state if such service is accompanied by an affidavit of a party or the party's attorney that all such persons described herein are unknown or cannot be located.

         The plaintiff characterizes the defendant as the “chief executive officer” of the Social Security Administration, such that her certified mailing effected good service under Rule 4(c)(8) as of February 10, 2017. (Doc. 5 at 2).

         The defendant responds that Rule 4(c)(8) does not apply to service on the United States, its agencies or officers. (Doc. 7-1 at 2). The Court agrees for the following reasons. First, the rule is titled, “Local Governments and other Governmental Entities, ” which indicates the rule is limited to governments and governmental entities within a state.[5] Second, the commentary to the provision states that it “governs service on all types of local governmental entities, ”[6] which appears expressly to limit the rule's scope to local bodies. Third, the only governmental units listed in the rule are counties and municipalities, reflecting the rule's focus on local defendants. Fourth, the rule provides for alternative service of process on the state attorney general - a procedure that makes little if any sense in the context of a federal defendant. Fifth, the rule “is patterned after” certain Arkansas and New Mexico rules, [7] which rules plainly do not address federal defendants.[8] The plaintiff offers no argument in defense of her contrary position.

         Because the plaintiff has failed to show effective service of process, [9] the 30-day clock of Section 1446(b) did not expire prior to removal.[10] And without service of process, the plaintiff cannot obtain entry of default. 10 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 at 14 (3rd ed. 1998) (“Before a default can be entered, … the party must have been effectively served with process.”).

         In her reply brief, the plaintiff raises a new argument: that the defendant “failed to raise any allegation of a colorable federal defense.” (Doc. 5 at 4). District courts, including this one, ordinarily do not consider arguments raised for the first time on reply, [11] and the plaintiff offers no reason the Court should stray from the usual rule. The Court therefore will not consider the argument at this time, but it does not preclude the plaintiff from raising the argument by subsequent motion.

         For the reasons set forth above, the plaintiff's motion to dismiss and remand, and her alternative motion for default, are denied.

         DONE ...


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