(PS) Horn v. Experis US, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELLA W. HORN, No. 2:20-cv-00212-JAM-CKD (PS) 12 Plaintiff, 13 v. ORDER 14 EXPERIS US, INC., A MANPOWER BRAND COMPANY, 15 Defendant. 16 17 18 Before the court is plaintiff’s motion to remand. (ECF No. 4.) Defendant filed an 19 opposition and a request that the court take judicial notice of several documents. (ECF No. 9.) 20 Upon considering the motion and relevant documents, the court finds as follows: 21 I. BACKGROUND 22 On or about December 11, 2019, plaintiff filed suit against her employer, Eperis US, Inc., 23 in the Superior Court of the State of California, Sacramento County, alleging breach of contract, 24 unlawful discrimination, and other state-law claims. (ECF No. 1 ¶ 2.) One day prior, on 25 December 10, 2019, plaintiff attempted to serve defendant’s registered agent for service of 26 process—CT Corporation, Inc.—by mailing the summons, complaint, and other documents to the 27 registered agent’s address in Los Angeles, California. (ECF No. 4 ¶ 1.) Plaintiff then attempted 28 to serve defendant a second time, in the same manner, on December 20, 2019. (Id. ¶ 6.) Plaintiff 1 repeated the service attempt a third time on January 10, 2020. (Id. ¶ 8.) 2 Defendant contends that none of these service attempts effected valid service against it. 3 (ECF No. 9 at 4.) Nevertheless, defendant became aware of plaintiff’s suit. Rather than 4 “inform[ing] plaintiff of this error” or “forc[ing] the issue by ignoring the unserved complaint,” 5 plaintiff voluntarily appeared by filing an answer in the state court action on January 28, 2020. 6 (Id. at 2:9-15.) The day after filing an answer, defendant filed a notice of removal to remove the 7 action to this court on the basis of diversity jurisdiction. (ECF No. 1.) Plaintiff timely filed a 8 motion to remand on February 18, 2020. (ECF No. 4.) 9 II. DISCUSSION 10 Plaintiff moves to remand this action on the grounds that (1) the court lacks original 11 jurisdiction; and (2) removal was untimely. Defendant disputes both grounds, and in doing so, 12 asks the court to take judicial notice of several documents. The court addresses defendant’s 13 request for judicial notice first. 14 A. Request for Judicial Notice 15 Defendant asks the court to take judicial notice of two judicial orders and one court filing 16 in the matter Horn v. Experis US Inc., No. 2:17-CV-0814-JAM-DB, 2019 WL 4955189, at *1 17 (E.D. Cal. Oct. 8, 2019), which involved the same parties and addressed the issue of defendant’s 18 citizenship for purposes of diversity jurisdiction. (ECF No. 9-2.) Plaintiff has not opposed 19 defendant’s request. 20 Under Federal Rule of Evidence 201, a district court may take judicial notice of a fact that 21 is “not subject to reasonable dispute because it can be accurately and readily determined from 22 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). A court may 23 therefore take judicial notice of court filings and other matters of public record. Reyn’s Pasta 24 Bella LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); see also Papai v. Harbor Tug 25 & Barge Co., 67 F.3d 203, 207, n.5 (9th Cir. 1995), rev’d on other grounds, 520 U.S. 548 (1997) 26 (“Judicial notice is properly taken of orders and decisions made by other courts and 27 administrative agencies.”) 28 Because defendant seeks judicial notice of documents that are matters of public record and 1 the request is unopposed, the court grants defendant’s request. 2 B. Jurisdiction 3 A defendant may remove any civil action from state court to federal district court if the 4 district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). Generally, district 5 courts have original jurisdiction over civil actions in two instances: (1) where there is complete 6 diversity between the parties, or (2) where a federal question is presented in an action arising 7 under the Constitution, federal law, or treaty. 28 U.S.C. §§ 1331, 1332. 8 Defendant removed this action on the basis of diversity jurisdiction. Diversity jurisdiction 9 exists when (1) the plaintiff and the defendant are citizens of different states, and (2) the amount 10 in controversy “exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. 11 § 1332(a); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). In this case, 12 plaintiff only challenges the first element—whether complete diversity of citizenship exists. The 13 parties agree that plaintiff is a citizen of the State of California. (ECF No. 4 at 2:10-11). But they 14 dispute defendant’s citizenship. Plaintiff argues that defendant is also a California citizen, (id.), 15 whereas defendant contends that it is a citizen of the State of Wisconsin. (ECF No. 9 at 6:2-6.) 16 Under the federal diversity jurisdiction statute, “a corporation shall be deemed to be a 17 citizen of any State by which it has been incorporated and of the State where it has its principal 18 place of business.” 28 U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010). The 19 term “principal place of business” refers to “the place where a corporation’s officers direct, 20 control, and coordinate the corporation’s activities.” Hertz, 559 U.S. at 92–93. In practice, “it 21 should normally be the place where the corporation maintains its headquarters—provided that the 22 headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center,’ 23 and not simply an office where the corporation holds its board meetings (for example, attended by 24 directors and officers who have traveled there for the occasion).” Id. at 93. 25 Applying this standard, the court finds that that defendant is a citizen of the State of 26 Wisconsin. Records from the California Secretary of State indicate that defendant is incorporated 27 under the laws of the State of Wisconsin. (ECF No 9-2 at 37.) In addition, defendant submits the 28 sworn declaration of its senior attorney, Stephen Miller, establishing that defendant is a 1 Wisconsin corporation with its headquarters and principal place of business located in Wisconsin. 2 (Id. at 35 ¶ 1-2.) Mr. Miller avers that, as of at least June 10, 2019, defendant’s “top executives 3 and decision makers were based in Wisconsin, and the corporation’s activities were directed out 4 of Wisconsin.” (Id.) Plaintiff does not submit any opposing evidence. Accordingly, defendant 5 has shown that it is a citizen of the State of Wisconsin. 6 Because plaintiff and defendant are citizens of different states, complete diversity of 7 citizenship exists for purposes of jurisdiction under 28 U.S.C. section 1332(a)(1). The court 8 declines to remand this action on the basis that it lacks jurisdiction. 9 C. Timely Removal 10 Plaintiff also seeks to remand this action on the basis that defendant’s removal was 11 untimely. A defendant generally has thirty days from the date it is served with process to remove 12 an action to federal court. 28 U.S.C. § 1446(b); Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 13 2011). The thirty-day period begins to run when formal service of process is completed on the 14 defendant in accordance with state law. See Murphy Bros. v. Mitchetti Pipe Stringing, Inc., 526 15 U.S. 344, 354 (1999). 16 Plaintiff attempted to serve defendant by mail at least twice. 1 Plaintiff contends that 17 service of process was first completed on December 12, 2019, and then again on December 26, 18 2019. (ECF No. 4 ¶¶ 1, 6.) Defendant filed its notice of removal on January 29, 2020, which— 19 according to plaintiff—means that defendant failed to remove within thirty-days of service under 20 either service date. (ECF No. 1.) 21 Defendant argues that both of plaintiff’s service attempts were defective, and that the 22 thirty-day removal period did not begin to run until it voluntarily appeared in the state court 23 action on January 28, 2020. Specifically, defendant contends that plaintiff failed to follow the 24 service requirements of California Code of Civil Procedure section 415.30 which establishes the 25 procedure for serving process by mail within the State of California. 26 1 Plaintiff alleges that she made a third attempt to serve defendant on January 10, 2020. (ECF No. 27 4 at ¶ 8.) Because the record contains no evidence of this attempt, and defendant’s removal would be timely under a January 20, 2020 service date, the court does not address the third 28 attempt. 1 In general, there are two ways to serve process by mail under California law. Cal. Civ. 2 Proc. Code §§ 415.30, 415.30. Section 415.30 may be used to deliver process to an address 3 located inside or outside of the State of California. See id. § 415.30 cmt. Whereas section 415.40 4 may only be used to deliver process to an address located outside of the State of California. See 5 id. § 415.40 cmt. 6 Here, plaintiff attempted to serve defendant’s registered agent for service of process at an 7 address located within the State of California. Plaintiff was therefore required to follow the 8 procedure set forth in section 415.30. 9 Under section 415.30(a), a plaintiff must mail (by first-class mail or airmail, postage 10 prepaid) a “copy of the summons and of the complaint . . . to the person to be served, together 11 with two copies of the notice and acknowledgment provided for in subdivision (b) and a return 12 envelope, postage prepaid, addressed to the sender.” Cal. Civ. Proc. Code § 415.30(a). Service 13 under this section is deemed complete on the date the written acknowledgment of receipt of 14 summons is executed. Id. § 415.30(c). If the addressed party fails to execute and return the 15 acknowledgment, then “there is no effective service, he merely becomes liable for the reasonable 16 expenses of service in a more conventional manner.” Thierfeldt v. Marin Hosp. Dist., 35 Cal. 17 App. 3d 186, 199 (Ct. App. 1973); Cal. Civ. Proc. Code § 415.30(d). 18 Here, there is no evidence that defendant executed and returned the acknowledgment form 19 required by section 415.30. To the contrary, the evidence indicates that plaintiff failed to serve 20 defendant with the required acknowledgment forms. The record includes two “Proof of Service 21 of Summons,” which provide an index of the documents mailed to defendant during each service 22 attempt. (ECF No. 4 at 10; ECF No. 9-1 at 8.) The acknowledgment forms are not included in 23 either index. Id. Accordingly, neither of plaintiff’s service attempts were effective under section 24 415.30. See Bachilla v. Pac. Bell Tel. Co., No. 07-CV-739-RRB-KJM, 2007 WL 2765689, at *3 25 (E.D. Cal. Sept. 19, 2007) (“Plaintiffs failed to offer proof that the written acknowledgement of 26 service regarding the initial pleadings was returned [and thus plaintiffs] did not prove that service 27 was properly effected under § 415.30.”) 28 Because plaintiff never effected valid service on defendant, defendant’s thirty-day period wOAIG 2 UVM E LOUVAIN NS INES MAUI, te PI Ore POY VI 1 | to remove this action did not begin to run until January 28, 2020, when it voluntarily filed an 2 | answer in state court. Defendant filed a notice of removal one day later, and thus its removal was 3 | timely. 4} OI. CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Defendant’s request for judicial notice (ECF No. 9-2) is GRANTED; and 7 2. Plaintiff's motion to remand (ECF No. 4) is DENIED. 8 | Dated: June 18, 2020 bh rdf ht / {a— ? CAROLYN K. DELANEY : 10 UNITED STATES MAGISTRATE JUDGE 11 12 17.212.remand 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28