Robert Carpio v. ABM Industries Incorporated

• Court: District Court, C.D. California
• Decided: April 15, 2024
• Docket: 8:24-cv-00275
• Status: Unknown

Opinion

JS-6 5 — 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION ROBERT CARPIO, Case No.: SACV 24-00275-CJC (KESx) 13 Plaintiff, ORDER GRANTING PLAINTIFF’S 14 v. MOTION TO REMAND [DKt. 11] ABM INDUSTRIES INCORPORATED, 16 DOES 1 through 100, inclusive, 17 ig Defendant. 19 XS 20 Plaintiff Robert Carpio filed this case in state court in April 2023 asserting that his employment with Defendant ABM Industries Incorporated was wrongfully terminated. (See Dkt. 1-1 [Complaint].) The parties do not dispute that Plaintiff properly served the Summons and Complaint on Defendant’s designated agent for service of process, CT Corporation System (“CT”’), on April 18, 2023. (See Dkt. 11-4, Ex. B [Proof of Service]; » Dkt. 13 [Opposition, hereinafter “Opp.”] at 5—6.) Unfortunately, CT forwarded the properly-served documents to ABC Industries, not to Defendant. (See Dkt. 13-5; Opp. at 6 [“[D]ue to what appears to be a clerical error on the part of CT Corp, the documents

1 were never forwarded to ABM,” as “CT Corp forwarded the documents to an entirely 2 different entity, ABC Industries, which has no relation to ABM.”].) Upon discovering 3 the error, on April 26, 2023, Plaintiff’s counsel emailed Natalie Hernandez, an attorney at 4 Ogletree Deakins, Defendant’s outside counsel which handled Plaintiff’s February 2022 5 request for his personnel file. (Dkt. 13-3 [Declaration of Robert Kaitz] ¶ 4, Ex. B.) 6 Plaintiff’s counsel told Ms. Hernandez that his office filed and served on Defendant 7 through CT the Complaint, which he attached, but CT “forwarded the documents to the 8 wrong entity (ABC Industries).” (Dkt. 13-5.) 9 10 Months went by. There appear to have been some proceedings in state court 11 regarding service, but it is difficult to ascertain from the docket the precise nature of 12 those proceedings. (See Dkts. 14-1 [State Court Minute Order continuing Case 13 Management Conference and stating “If no service, a Declaration re: Service is ordered 14 to be filed by Plaintiff prior to” Case Management Conference], 14-2 [State Court 15 Docket].) On January 10 2024, “Plaintiff served a courtesy copy of the original summons 16 and complaint, along with the original April 18, 2023, proof of service, on the same 17 designated agent for service, per the California Secretary of State website, to spur 18 Defendant into responding before entering default against them.” (Dkt. 11 [Mot.] at 3 19 [emphases in original].) This time, CT correctly forwarded the documents to Defendant. 20 (Dkt. 13-4.) On February 9, 2024, Defendant removed the case to this Court. (Dkt. 1.) 21 22 Now before the Court is Plaintiff’s motion to remand to state court for failure to 23 timely remove. (Dkt. 11.) “Federal courts are courts of limited jurisdiction,” possessing 24 “only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 25 256 (2013) (internal quotations omitted). “The notice of removal of a civil action or 26 proceeding shall be filed within 30 days after the receipt by the defendant, through 27 service or otherwise, of a copy of the initial pleading setting forth the claim for relief 1 removed, the burden of establishing subject matter jurisdiction falls on the defendant, and 2 the removal statute is strictly construed against removal jurisdiction. See Gaus v. Miles, 3 Inc., 980 F.2d 564, 566 (9th Cir. 1992). If a court determines it lacks subject matter 4 jurisdiction, the action must be remanded to state court. 28 U.S.C. § 1447(c). 5 6 Defendant—the party bearing the burden of proving removal was timely—does not 7 dispute that Plaintiff properly served its designated agent, CT, in April 2023. Nor does it 8 dispute that Plaintiff’s counsel emailed the Complaint to Defendant’s outside counsel 9 when he realized CT’s error. Nevertheless, Defendant argues that the 30-day time period 10 to remove should not begin to run in April 2023 because Defendant never received actual 11 notice at that time, and that the time period should instead begin to run from Plaintiff’s 12 January 2024 service, which resulted in actual notice. (Dkt. 13 at 5–10.) In support of 13 this argument, Defendant directs the Court to Anderson v. State Farm Mut. Auto. Ins. Co., 14 917 F.3d 1126 (9th Cir. 2019). In Anderson, the Ninth Circuit held that service of the 15 summons and complaint on “a statutorily designated agent,” there the state Insurance 16 Commissioner, is not enough to trigger the removal period, and that the removal period is 17 instead triggered when the defendant’s “designated recipient receive[s] the complaint.” 18 917 F.3d at 1127, 1130. This is because “an agent designated by the state legislature to 19 receive service fundamentally differs from a defendant's agent-in-fact, because the 20 defendant has no meaningful say in or control over the former.” Id. at 1128; RedWind 21 Renewables, LLC v. Terna Energy USA Holding Corp., 2021 WL 5769308, at *2 (D. 22 Minn. Dec. 6, 2021) (“Terna’s reliance on [Anderson] and other cases involving statutory 23 agents, is inapposite. In Anderson, the [Ninth Circuit] explicitly distinguished a statutory 24 agent—an agent designated by the state legislature—from a registered agent, concluding 25 that a defendant clearly is served when its registered agent is served because defendants 26 have “meaningful say in [and] control over” their registered agents.”). 27 1 The Anderson rule requires remand here. CT, the agent that received the Summons 2 Complaint, was Defendant’s designated agent, not its statutory agent. The 30-day 3 || window therefore began to run when Plaintiff properly served CT in April 2023, and 4 || Defendant’s removal is untimely. See, e.g., Reger v. Century Nat'l Ins. Co., 2022 WL 5 || 16960530, at *1 (W.D. Wash. Nov. 16, 2022) (applying the Anderson rule to conclude 6 the defendant was properly served when the statutorily-mandated agent served the 7 ||defendant’s designated agent, Corporation Service Company); Sw. Marine & Gen. Ins. 8 v. Main St. Am. Assurance Co., 2021 WL 4441513, at *1 (S.D.N.Y. Sept. 28, 2021) 9 ||(determining that 30-day clock began to run not when New York State Department of 10 |] Financial Services—a statutory agent—was served, but rather when Corporation Service 11 || Company—the defendant's registered agent for service of process—was served); Peng v. 12 || Zi, 2021 WL 3077452, at *3n.2 (C.D. Cal. July 21, 2021) (granting motion to remand 13 || based on untimely removal, distinguishing Anderson on the basis that Anderson 14 |] concerned statutorily-designated agents, and explaining that “[a] rule that requires 15 || inquiring into when a defendant actually received the summons and complaint in each 16 || case—even when defendant is properly served . ..—would result in uneven application 17 || of Section 1446.”). Accordingly, Plaintiff’s motion to remand is GRANTED. 18 19 DATED: April 15, 2024 jee fe 20 fT ST 21 CORMAC J. CARNEY 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 || for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for April 22, 2024, is hereby vacated and removed from the calendar.