Buote v. Lemenger et al
| Gail Buote |
| Jeremy Lemenger and Laura Huntsman |
| 1:2023cv12392 |
| October 16, 2023 |
| US District Court for the District of Massachusetts |
| M Page Kelley |
| Leo T Sorokin |
| Motor Vehicle |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| Defendant |
Docket Report
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Filing 25
Magistrate Judge M. Page Kelley: ORDER entered. REPORT AND RECOMMENDATIONS re #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Laura Huntsman. Recommendation: For the reasons set forth above, the court recommends that Huntsmans Fed. R. Civ. P. 12(b)(6) motion to dismiss #6 be denied, without prejudice to the parties raising choice-of-law arguments after discovery. Objections to R&R due by 12/28/2023(Vieira, Leonardo)
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Filing 24
Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered taking under advisement #6 Motion to Dismiss for Failure to State a Claim. (Vieira, Leonardo)
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Filing 23
Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Motion Hearing held on 12/12/2023 by video. The court hears argument on #6 defendant Laura Huntsmans Fed. R. Civ. P. 12(b)(6) motion to dismiss, including argument as to whether the court is able to conduct the choice-of-law analysis prior to discovery. The court takes Huntsmans motion under advisement, noting that a Report and Recommendation will issue shortly. The parties will have 14 days from the issuance of the Report and Recommendation to file objections for review by District Judge Sorokin. The parties are free to jointly propose a case schedule during those 14 days while any objections to the Report and Recommendation are pending, but the court is not inclined to enter a scheduling order before Judge Sorokin decides Huntsmans motion, as any decision on that motion will necessarily impact the scheduling order. If the parties jointly propose a case schedule, they should indicate whether they consent to the court entering a scheduling order without holding a scheduling conference. Although the court is not inclined to limit discovery if discovery is eventually conducted, it notes that discovery related to defendant Jeremy LeMenagers domicile bears on both the choice-of-law analysis and any dispute regarding diversity jurisdiction. The court informs the parties that if they agree to do so, they may raise minor discovery disputes with the court by jointly emailing Deputy Clerk Vieira about the dispute, rather than conducting formal motion practice. Any request by defendants to stay the case pending a criminal investigation into the collision should be made by motion. The court denies plaintiffs motion to strike defense counsels L.R. 7.1 certification. See #17 at 8-9 (motion); see also #10 (certification). (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to https://forms.mad.uscourts.gov/Audio.html. For a transcript of this proceeding, contact mad_transcripts@mad.uscourts.gov. (Attorneys present: Mulvey, Long) (Vieira, Leonardo)
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Filing 22
ELECTRONIC NOTICE Setting Hearing on Motion #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , #17 MOTION to Strike : This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the courtroom deputy of the session as soon as possible.Audio access to the hearing may be available to the media and public. Please check the #Court schedule. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html.For questions regarding access to hearings, you may refer to the general orders and public notices of the Court available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Motion Hearing set for 12/12/2023 11:15 AM in Courtroom 24 (Remote only) before Magistrate Judge M. Page Kelley. (Vieira, Leonardo)
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Filing 21
NOTICE of Appearance by David J. Zuares on behalf of Laura Huntsman, Jeremy Lemenger (Zuares, David)
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Filing 20
Opposition re #17 MOTION to Strike filed by Laura Huntsman. (Attachments: #1 Affidavit)(Long, Christopher)
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Filing 19
Disclosure pursuant to Rule 26 by Gail Buote.(Mulvey, Elizabeth)
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Filing 18
REPLY to Response to #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Laura Huntsman. (Long, Christopher)
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Filing 17
Opposition re #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM And Motion to Strike Defendant Huntsman's Local Rule 7.1 Certification filed by Gail Buote. (Mulvey, Elizabeth) Modified on 11/8/2023: Updated docketing event to be a motion. (Dore, Samantha).
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Filing 16
Summons Issued as to Jeremy Lemenger. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Vieira, Leonardo)
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Filing 15
Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered: Plaintiff has moved for issuance of a summons as to defendant Jeremy LeMenager, noting that despite joining in the notice of removal and filing an affidavit in connection with the notice, LeMenager apparently did not receive the complaint or state court summons prior to removal. #13 at 1; see also [1-3] at 4 (LeMenagers affidavit denying that he received complaint and state court summons and reserving right to challenge sufficiency of process and service of process); #5 at 4 (LeMenagers post-removal answer raising defenses). LeMenager, allegedly of New Jersey, see [1-3] at 4, and co-defendant Laura Huntsman, of New Jersey, see #4 at 15 (copy of complaint in certified state court record), have filed a limited opposition to the motion, taking no position on the relief sought by the motion but seeking to correct the assertion in the motion that Huntsman has been properly served, where the mail allegedly did not require a signed receipt. See Mass. Gen. Laws ch. 223A, s. 6(a)(3) (modes of service outside Massachusetts). In partial opposition, defendants expressly reserve all defenses, including insufficient process and service of process. #14 at 1-2.The court notes that a defendant who files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) without raising the defenses of insufficient process or service of process under Fed. R. Civ. P. 12(b)(4) and (5), as Huntsman has, see #6 (motion), #7 (memorandum), waives the defenses. Fed. R. Civ. P. 12(h)(1)(A); see Chute v. Walker, 281 F.3d 314, 320 (1st Cir. 2002); Collins v. Federal Express Corp., #21-cv-11142-ADB, 2021 WL 4822153, at *3 n.5 (D. Mass. Oct. 15, 2021).28 U.S.C. s. 1448 provides in part that [i]n all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court. Id. Plaintiff filed her complaint in state court on August 7, 2023. See #4 at 3, 15. Defendants filed the notice of removal in this court on October 16, 2023, which was received by the state court on October 17. See id. at 4; see also #1 . When the notice of removal was filed, the time to complete service under Mass. R. Civ. P. 4(j) had not yet expired. The time to complete service under Fed. R. Civ. P. 4(m), which now controls, see Fed. R. Civ. P. 81(c)(1), still has not expired. See Mass. R. Civ. P. 4(j) (90-day window for completion of service following filing of complaint); Fed. R. Civ. P. 4(m) (same); see also Doe v. Fox Broadcasting Co., #09-cv-40191-FDS, 2010 WL 2106031, at *2 (D. Mass. May 24, 2010) ([I]nsufficient service of process under state law before removal does not require dismissal if the plaintiff, after removal, properly serves the defendant under the Federal Rules of Civil Procedure. In this way, Section 1448 and Fed. R. Civ. P. 81(c) work together, and the crucial event in this case is the [date of] removal to federal court. After that date, the federal rules applies, and if the plaintiff served [defendant] in compliance with those rules, the case should not be dismissed) (emphasis in original); Camacho v. Pepsi-Cola of the Merrimack Valley, #06-cv-11606-MLW, 2007 WL 9798460, at *2 (Thus, where, as here, service was incomplete or defective under Massachusetts law, but time to perfect such service still remained at the time of removal, dismissal is not justified because the defendants can be re-served under 28 U.S.C. s. 1448). Accordingly, the court allows #13 plaintiffs motion for issuance of a summons. The Clerk is directed to issue a summons for defendant Jeremy LeMenager (Vieira, Leonardo)
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Filing 14
Opposition re #13 MOTION for Order to Issue Summons to Jeremy LeMenager filed by Laura Huntsman, Jeremy Lemenger. (Long, Christopher)
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Filing 13
MOTION for Order to Issue Summons to Jeremy LeMenager by Gail Buote.(Mulvey, Elizabeth)
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Filing 12
District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge M. Page Kelley Referred for: All purposes including pretrial management and Dispositive Motions.(Belmont, Kellyann) Motions referred to M. Page Kelley.
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Filing 11
DEMAND for Trial by Jury by Laura Huntsman, Jeremy Lemenger. (Long, Christopher)
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Filing 10
NOTICE by Laura Huntsman re #7 Memorandum in Support of Motion, #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , #8 Certificate of Consultation pursuant to LR 7.1, Request for Hearing (Long, Christopher)
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Filing 9
District Judge Leo T. Sorokin: New Civil Cases General Procedural ORDER entered. (Dore, Samantha)
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Filing 8
CERTIFICATE OF CONSULTATION pursuant to LR 7.1 re #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , #7 Memorandum in Support of Motion by Christopher G. Long on behalf of Laura Huntsman filed by on behalf of Laura Huntsman. (Long, Christopher)
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Filing 7
MEMORANDUM in Support re #6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Laura Huntsman. (Long, Christopher)
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Filing 6
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Laura Huntsman.(Long, Christopher)
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Filing 5
ANSWER to Complaint with Jury Demand by Jeremy Lemenger.(Long, Christopher)
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Filing 4
STATE COURT Record. (Long, Christopher)
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Filing 3
Certified Copy of Notice of Removal Provided to Defense Counsel by Email (Dore, Samantha)
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Filing 2
ELECTRONIC NOTICE of Case Assignment. District Judge Leo T. Sorokin 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 M. Page Kelley. (Cook, Savannah)
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Filing 1
NOTICE OF REMOVAL by Laura Huntsman, Jeremy Lemenger ( Filing fee: $ 402, receipt number AMADC-10086738 Fee Status: Filing Fee paid) (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Civil Cover Sheet, #5 Category Form)(Long, Christopher)
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