Emakpor v. First Coast Security Solutions, Inc.

• Court: District Court, District of Columbia
• Decided: April 5, 2018
• Docket: Civil Action No. 2018-0157
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LUCKY EMAKPOR,

Plaintiff,

v. Case No. 1:18-cv-00157 (TNM)

FIRST COAST SECURITY SOLUTIONS, INC.,

Defendant.

MEMORANDUM ORDER

Before the Court are the Defendant’s Notice of Removal, ECF No. 1; the Plaintiff’s

Motion to Remand the case back to the Superior Court of the District of Columbia, ECF

No. 6, which is fully briefed; and the parties’ responses to the Court’s sua sponte Order of

March 15, 2018 seeking briefing on the timeliness of the Defendant’s removal, ECF Nos.

10 and 14. Upon consideration of the pleadings, relevant law, related legal memoranda in

opposition and in support, and the entire record, I find that removal was untimely. This

matter will be remanded to the Superior Court of the District of Columbia.

On November 16, 2017, Plaintiff Lucky Emakpor filed his pro se claim in the Small

Claims and Conciliation Branch of the Superior Court of the District of Columbia, seeking

at least $3,600 in funds allegedly improperly withheld from his paycheck. Certified Copy

of Transfer Order and Docket Sheet, ECF No. 4, at 5, 7. First Coast removed the case to

federal court on January 24, 2018, citing federal question jurisdiction. Not. of Removal

¶ 6. First Coast stated that removal was timely as required by 28 U.S.C. § 1446(b) as it

received the summons and complaint on December 26, 2017, and that jurisdiction and venue are proper under 28 U.S.C. § 1441(a). Id. ¶¶ 2, 5-7. Mr. Emakpor, still pro se at the

time, opposed First Coast’s assertion of federal subject matter jurisdiction. Mot. for

Remand. Because the Superior Court docket showed that service had been effectuated on

November 22, 2017, seemingly making First Coast’s removal untimely by over a month, I

ordered First Coast to explain why removal was timely. Minute Order March 15, 2018;

see also Def.’s Response in Supp. of Timely Removal, ECF No. 10. Mr. Emakpor, through

retained counsel, has filed an omnibus response to First Coast’s opposition to the motion

to remand and its response to First Coast’s explanation as to why removal was timely. Pl.’s

Omnibus Response to Def.’s Opp. to Pl.’s Mot. to Remand, ECF No. 14.

A notice of removal “shall be filed within 30 days after the receipt by the defendant,

through service or otherwise, of a copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based”. 28 U.S.C. § 1446(b). Removal

statutes are to be strictly construed, Williams v. Howard Univ., 984 F. Supp. 27, 29 (D.D.C.

1997), and on a motion to remand, the defendant bears the burden of proving that the court

has jurisdiction. Phillips v. Corrections Corp. of America, 407 F. Supp. 2d 18, 20 (D.D.C.

2005) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).

In this case, I do not need to determine whether the Court’s federal question

jurisdiction is properly invoked because First Coast clearly removed the matter beyond the

statutorily-prescribed time period. Per District of Columbia Code,

Actions shall be commenced in the Small Claims and Conciliation Branch by the filing of a statement of claim . . . . The clerk of the Branch shall, at the request of an individual, prepare the statement of claim and other papers required to be filed in an action in the Branch . . . . A copy of the statement of claim and verification shall be made a part of the notice to be served upon the defendant named therein. The mode of service shall be by the United States marshal, as provided by law, or by registered mail or by certified mail with return receipt[.]

D.C. Code § 16-3902. Mr. Emakpor’s Complaint, which he completed using Small Claims

Form 11, provided a sworn statement of the claim and gave notice of a date and time for a

hearing to be held on the claim. Certified Copy of Transfer Order and Docket Sheet, 5-7.

The Complaint also included a Deputy Clerk’s signature to attest to receiving

Mr. Emakpor’s statement of the claim. Id. at 5. Mr. Emakpor paid for service of the

statement of claim to be made by certified mail, and the Superior Court docket shows that

the receipt of service by certified mail was filed on November 22, 2017. Id. at 4, 14-15.

Thus, it appears that service of process was properly prepared and executed.

First Coast does not contest that certified mail receipt was filed on November 22,

2017, or that the recipient of service, Incorp Services, Inc., is First Coast’s registered agent

in the District of Columbia. Def.’s Response in Supp. of Timely Removal ¶¶ 2,4. Rather,

First Coast appears to blame its registered agent for not providing it with the appropriate

documents. Id. ¶ 4 (“While Incorp . . . is First Coast’s registered agent in the District of

Columbia, First Coast did not receive any notice or copy of Plaintiff’s Complaint in

November 2017.”); id. ¶ 5 (“On December 21, 2017, Incorp notified First Coast that a

hearing had been scheduled for January 11, 2018 . . . Incorp provided First Coast notice of

the hearing, but nothing else.”). This is unacceptable. Service by certified mail is valid

upon delivery to a person qualified to receive the certified mail, such as a registered agent.

See Small Claims R. 4(c)(2).1 Regardless of when First Coast alleges that it received the

1 Available at https://www.dccourts.gov/sites/default/files/rules-superior- court/Small%20Claims%20Rule%204.%20Service%20of%20Process.pdf