SPF Holdings, LLC et al v. U.S BANK, N.A.
| Randolph REI Group, LLC and SPF Holdings, LLC |
| U.S BANK, N.A. |
| 1:2019cv10171 |
| January 25, 2019 |
| US District Court for the District of Massachusetts |
| Richard G Stearns |
| Real Property: Other |
| 28 U.S.C. ยง 1441 |
| None |
Docket Report
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| Filing 14 Judge Richard G. Stearns: ORDER entered. ORDER OF REMAND to the State Court(McDonagh, Christina) |
| Filing 13 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #8 Motion to Remand to State Court. Plaintiff SPF Holdings seeks to remand this case to the Massachusetts Land Court on the ground that defendant U.S. Bank's Notice of Removal was untimely. SPF filed this lawsuit against US Bank in the Massachusetts Land Court in December of 2018. On December 20, 2018, SPF delivered a copy of the Summons and Complaint to Samantha Leach, an assistant manager (or teller coordinator, according to US Bank) at the US Bank branch at 425 Walnut Street in Cincinnati, Ohio. The Summons and Complaint were ultimately received by US Banks legal department on December 27, 2018. On January 25, 2019, US Bank filed a Notice of Removal to the federal district court. 28 U.S.C. 1446(b) requires, in pertinent part, that "notice of removal... shall be filed within thirty days after the receipt by the defendant, through service or otherwise." 28 U.S.C. 1446(b) (emphasis added). "[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, 347-348 (1999). To start the clock under 1446(b), service of process must comply with the law of the state in which the suit was filed. In re Pharm. Indus. Average Wholesale Price Litig., 307 F. Supp. 2d 190, 195 (D. Mass. 2004) (citations omitted).Massachusetts authorizes service of process outside the Commonwealth "in the manner prescribed by the law of the place in which the service is made." Mass. R. Civ. P. 4(e)(2). SPF attempted to serve US Bank in Ohio, which permits service of process on a foreign corporation to be made "by serving an officer or a managing or general agent of the corporation." Ohio Civ. R. 4.2(F). Ohio courts have interpreted "general agent" sweepingly. See Whitaker v. Paru Selvam, L.L.C., 2014-Ohio-3263, 29 ("a 'general agent' has been defined as 'an agent authorized to conduct a series of transactions involving a continuity of service'") (citation omitted); see also Jones v. Frank Bromholt & Sons, Inc., 2002 WL 31520123, at *2-3 (Ohio Ct. App. June 26, 2002) (finding service on local sales representative of farm equipment broker to be proper as to broker); In re Estate of Popp, 641 N.E.2d 739, 745-746 (Ohio Ct. App. 1994) (finding service on receptionist proper as to corporation). Under this permissive view, Leach constitutes a general agent for US Bank and US Bank received service on December 20, 2018. Accordingly, US Banks Notice of Removal on January 25, 2019 was beyond the thirty-day window permitted by 1446(b) and therefore untimely.The court denies SPF's request for attorneys fees and costs under 28 U.S.C. 1447(c), finding that US Bank's notice of removal was not objectively unreasonable under the circumstances, particularly given the casual way in which service (while technically permissible) was made. (Tang, Danni) |
| Filing 12 MEMORANDUM in Opposition re #8 MOTION to Remand to State Court filed by U.S BANK, N.A.. (Attachments: #1 Exhibit A-Copy of Summons, #2 Exhibit B-Website)(Lumsden, Dana) |
| Filing 11 STATE COURT Record. (Attachments: #1 Supplement State Court File Part 2)(Lumsden, Dana) |
| Filing 10 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #9 Motion for Extension of Time. Defendant has until March 1, 2019 to File an Opposition to the Motion to Remand. Plaintiff will then have two weeks from the date of the court's decision on the Motion to Remand to File an Opposition to the Motion to Dismiss. (RGS, law1) |
| Filing 9 Joint MOTION for Extension of Time to March 1, 2019 to Extend Briefing Deadlines by U.S BANK, N.A..(Lumsden, Dana) |
| Filing 8 MOTION to Remand to State Court by SPF Holdings, LLC. (Attachments: #1 Supplement Memorandum in Support, #2 Affidavit Affidavit of Compliance, #3 Errata Appearance of Counsel, #4 Errata Corporate Disclosure Statement)(Goldman, Howard) |
| Filing 7 MEMORANDUM in Support re #6 MOTION to Dismiss Plaintiff's Complaint filed by U.S BANK, N.A.. (Attachments: #1 Exhibit Note, #2 Exhibit Mortgage, #3 Exhibit First Assignment, #4 Exhibit Second Assignment)(Lumsden, Dana) |
| Filing 6 MOTION to Dismiss Plaintiff's Complaint by U.S BANK, N.A..(Lumsden, Dana) |
Filing 5
General Order 09-1, dated January 6, 2009 regarding the E-Government Act and Personal Identifiers entered. (Kinsella, Devan)
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| Filing 4 Certified Copy of Notice of Removal Provided to Defense Counsel by mail (Kinsella, Devan) |
| Filing 3 ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Finn, Mary) |
| Filing 2 CORPORATE DISCLOSURE STATEMENT by U.S BANK, N.A. identifying Corporate Parent U.S. Bancorp, Inc. for U.S BANK, N.A... (Lumsden, Dana) |
| Filing 1 NOTICE OF REMOVAL by U.S BANK, N.A. ( Filing fee: $ 400, receipt number 0101-7509900 Fee Status: Filing Fee paid) (Attachments: #1 Exhibit State Court Pleadings, #2 Exhibit Summons, #3 Exhibit SPF Secretary Registration, #4 Exhibit Randolph Secretary Registration, #5 Exhibit Payoff Statement, #6 Civil Cover Sheet Civil Cover Sheet, #7 JS45 Local Civil Category Sheet)(Lumsden, Dana) (Attachments 6 & 7 replaced on 1/25/2019 to correct fillable PDF formatting) (Kinsella, Devan). (Main Document 1 replaced on 1/28/2019 to reflect correct party roles) (Kinsella, Devan). |
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