David J. Widi, Jr. v. Strafford Cty

2014 DNH 083

• Court: District Court, D. New Hampshire
• Decided: April 23, 2014
• Docket: 13-cv-536-SM
• Status: Published

Opinion

David J. Widi, Jr. v. Strafford Cty 13-CV-536-SM 4/23/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David J. Widi, Jr.

v. Case No. 13-cv-536-SM Opinion No. 2014 DNH 083 Strafford County, Raymond Bower, Warren Dowaliby, Bruce Pelkie, Grace Weisgarber, Jon Forcier, and Scott Chabot

O R D E R

Plaintiff’s Motion to Vacate, document no. 4, is denied.

Plaintiff’s first argument — that removal is improper because

defendants have not been served and because their counsel has not

filed an appearance in this case — is legally and factually

without merit. A non-served defendant may remove a case, see

28 U.S.C § 1446(b), and defendants’ counsel has, in fact,

appeared. See L.R. 83.6(a) (“The filing of . . . any signed

filing . . . constitutes an appearance by the attorney who signs

it.”). Notably, by filing their Motion to Dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6)

(doc. no. 2), defendants waived any objection to lack of service,

thus rendering further efforts to serve process unnecessary. See

Crispin-Taveras v. Municipality of Carolina, 647 F.3d 1, 6 (1st

Cir. 2011).1

1 Because defendants waived service on the same day they filed their Notice of Removal (by filing their Motion to Dismiss), there has been no occasion for pre-service preliminary review of the complaint. Plaintiff also argues that remand is warranted because he

has not received a copy of the Notice of Removal (doc. no. 1).

In fact, the record supports plaintiff’s averment that he has not

received a copy of the removal notice, or at least, it is not

clear that he has. But that is irrelevant. It is enough that

plaintiff received written notice from the Clerk of the Court

that the case has been removed. See Runaj v. Wells Fargo Bank,

667 F. Supp. 2d 1199, 1302 (S.D. Cal. 2009) (“Section 1446(d)

does not require ‘formal’ or ‘personal’ service of a notice of

removal upon a plaintiff; it merely requires ‘written notice.’”).

Moreover, as evidenced by his timely motion to remand, plaintiff

has not been prejudiced. See Busby v. Capital One, N.A., 759

F. Supp. 2d 81, 86 (D.D.C. Jan. 6, 2011) (finding that lack of

prejudice was evidenced by plaintiff’s timely filing of motion to

remand). The Motion to Vacate is, therefore, necessarily denied.

One more issue warrants the court’s attention. In his

Motion to Vacate, plaintiff stated that he did not receive a copy

of defendants’ Motion to Dismiss. Because defendants’ attempt to

cure that defect — by resending the document to plaintiff at the

federal prison in Ray Brook, NY — occurred during plaintiff’s

transfer from that prison to the federal correctional facility in

Berlin, NH, and because plaintiff duly notified the court and

defendants that mail received at FCI-Ray Brook during that time

might not be forwarded to him, the Clerk of the Court is directed

to send copies of the Motion to Dismiss (doc. no. 2), supporting

2 brief (doc. no. 2-1), and Notice of Removal (doc. no. 1) to

plaintiff at FCI-Berlin. The briefing schedule on the motion to

dismiss is extended. Plaintiff shall file his objection to the

Motion to Dismiss no later than June 1, 2014.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 23, 2014

cc: David J. Widi, Jr., pro se Corey M. Belobrow, Esq.