Roche v. Morgan Collection, Inc.

882 F. Supp. 2d 247, 2012 WL 3151250, 2012 U.S. Dist. LEXIS 107331
CourtDistrict Court, D. Massachusetts
DecidedAugust 1, 2012
DocketCivil Action No. 12-30058-KPN
StatusPublished
Cited by2 cases

This text of 882 F. Supp. 2d 247 (Roche v. Morgan Collection, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roche v. Morgan Collection, Inc., 882 F. Supp. 2d 247, 2012 WL 3151250, 2012 U.S. Dist. LEXIS 107331 (D. Mass. 2012).

Opinion

MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFF’S MOTION TO REMAND AND DEFENDANTS’ MOTION TO DISMISS (Document Nos. 6 and 16)

NEIMAN, United States Magistrate Judge.

Joanna Roche (“Plaintiff’) alleges that her former employer, Morgan Collection, Inc. (“Morgan Collection”) and its officers, Andrew T. Morgan (“Morgan”) and Linda S. Kagan (“Kagan”) (together “Defendants”), failed to pay her compensation, benefits, and reimbursements owed to her at the time of her termination. Plaintiff filed an action in state court asserting claims pursuant to the Massachusetts Wage Act (“Wage Act” or “The Act”), Mass. Gen. L. c. 149 §§ 148, 150, and state common law.

Defendants removed the action pursuant to 28 U.S.C. §§ 1441 and 1446, asserting that this court has jurisdiction over the action pursuant to 28 U.S.C. § 1332. Plaintiff has filed a motion to remand, arguing that Defendants’ notice of removal was untimely. Defendants have opposed the motion. In addition, Defendants have filed a motion to dismiss, which Plaintiff has opposed as well.

The parties have jointly consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. For the reasons that follow, the court will deny Plaintiffs motion to remand and allow, in part, Defendants’ motion to dismiss.

[250]*250I. Background

Except where indicated, the following facts come directly from Plaintiffs complaint. Plaintiff was employed by Defendants as Vice President of Sales and Marketing from approximately December 2010 to the end of 2011. (Complaint ¶¶ 11, 16.) Her job responsibilities included a variety of marketing and public relations matters. (Id. ¶ 11.) Plaintiff alleges that, pursuant to her employment agreement, she would receive in exchange for her services compensation which included “an annual salary, paid travel expenses, paid vacation, sick and personal time, reimbursement for health insurance costs and additional agreed compensation based on company revenue.” (Id. ¶ 12.) Although Plaintiff does not offer a reason, she alleges that Defendants terminated her employment at the end of 2011 without good cause. (Id. ¶ 21.) Plaintiff further alleges that Defendants failed to pay her the compensation to which she was entitled pursuant to their agreement. (Id. ¶ 22.)

On or about January 20, 2012, Plaintiff filed a wage complaint with the Massachusetts Office of the Attorney General’s Fair Labor Division, alleging that Morgan Collection committed wage violations in connection with her employment. (Id. ¶ 23.) On or about January 26, 2012, the Attorney General assented in writing to Plaintiffs request to institute a civil action and prosecute the instant wage complaint on her own behalf. (Id. ¶ 24.)

On February 1, 2012, Plaintiff filed the complaint against Defendants in Berkshire County Superior Court. On March 23, 2012, Defendants removed the case to federal court. In their initial notice of removal, Defendants asserted that they were each served on February 23, 2012. (Document No. 1.) However, on April 20, 2012, Defendants amended their notice of removal, stating that upon further investigation they discovered that service on Morgan Collection occurred on February 22, 2012, one day earlier than previously indicated. Defendants also allege that Kagan and Morgan were not served on February 22nd at all and that service was not completed as to them until March 31, 2012. (Document No. 13.)

Defendants elaborate on these facts in their opposition to Plaintiffs motion to remand. They maintain that on February 22, 2012, a process server, Joseph Sanchez (“Sanchez”), arrived at Morgan Collection’s corporate office in New York. Kathy Guarino (“Guarino”), an accountant at Morgan Collection, states in her affidavit that she asked Kagan if she could accept service and that, after Kagan assented, she accepted but a single copy of a summons directed to Morgan Collection. Defendants assert that Kagan and Morgan themselves did not receive any summons and complaint at that time, although it is not clear precisely when they finally did receive copies.

For her part, Plaintiff asserts that the summons and complaint were served on all defendants on February 21st, not February 22nd. (Plaintiffs Motion to Remand at 1-2.)1 In addition, relying on Sanchez’s affidavits, Plaintiff disputes the other facts asserted by Defendants. Most importantly, Plaintiff asserts that Sanchez delivered three copies of the summons to Guarino to be provided to each of the defendants. (Document No. 12 at 1; Document No. 25 at 2.)

In any event, it is undisputed that copies of the summons and complaint were mailed by Plaintiff to Kagan and Morgan on March 5, 2012. (Ex. A-l (Attached to [251]*251Complaint).) It also appears to be undisputed, as Defendants allege, that proofs of service were not filed with the Berkshire County Superior Court until March 21, 2012. Because, under New York law, “service shall be complete ten days after such filing [of the proof of service],” Defendants argue that service on Morgan and Kagan was not effected until March 31, 2012.

II. Discussion

A. Motion to Remand

In seeking to remand the case to state court, Plaintiff claims that Defendants’ removal to federal court was improper because the notice of removal was filed too late. Section 1446(b) of the United States Code, which governs removal, provides that “[t]he notice of removal of a civil action or proceeding shall be filed within thirty 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). Although the thirty-day time limit is not jurisdictional, “it is a strictly applied rule of procedure and untimeliness is a ground for remand.” Flaherty v. Flaherty, 1992 WL 201103, at *1 (D.Mass. July 29,1992).

Here, the parties’ dispute centers around when section 1446(b)’s clock began to run. Under New York law, which the parties agree governs the service of process at issue, a plaintiff may effectuate formal service in several ways, including by “delivering the summons within the state to the person to be served,” N.Y. CPLR § 308(1), or by delivering the summons within the state to a person of suitable age and discretion at the actual place of business.” NY CPLR § 308(2). Because section 308(2) contemplates delivery of service on someone other than the target of the summons and complaint, it also includes certain safeguards to ensure that the target receives proper notice. Thus, a plaintiff who opts to serve an individual pursuant to section 308(2), as Plaintiff did here, must comply with additional procedural requirements and may complete service

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Cite This Page — Counsel Stack

Bluebook (online)
882 F. Supp. 2d 247, 2012 WL 3151250, 2012 U.S. Dist. LEXIS 107331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roche-v-morgan-collection-inc-mad-2012.