following Tyler have avoided this result by holding that a complaint is not "received" for removal purposes until received by an "authorized representative" or "agent" of the defendant. Tech Hills, 5 F.3d at 968. In Tech Hills, the plaintiff sent the complaint via Federal Express to the defendant's office. Id. at 966. The complaint arrived on a Saturday, when the defendant's offices were closed, and a security guard signed to acknowledge receipt. Id. In-house counsel for the defendant received the complaint the following Monday. Id. The Sixth Circuit held that the removal period commenced upon receipt by in-house counsel, an authorized representative of the defendant, and not upon receipt by the security guard, who was "not so authorized." Id. at 968. Thus, the removal petition filed within thirty days of receipt by counsel was timely. Id.
Similarly, the Seventh Circuit has held that "the 30 days commences when the defendant, or its authorized agent, comes into possession of a copy of the complaint whether or not the delivery complies with the requirements of 'service.'" Roe, 38 F.3d at 304 (emphasis added) (citation omitted). In Roe, a deputy sheriff personally served the complaint upon the corporate defendant's receptionist. Id. at 300. The complaint was forwarded to another employee three days later. Id. The defendant's removal fell within the thirty-day period if measured from receipt by the second employee, but failed to meet the deadline if measured from receipt by the receptionist. Id. The court found that the service upon the receptionist triggered the removal period and that the removal was untimely. Id. at 304. The Ninth Circuit followed similar reasoning in Pochiro v. Prudential Insurance Co., 827 F.2d 1246, 1248 (9th Cir. 1987) (indicating that an attorney who represented the defendant in a related action was not necessarily authorized to accept service in a subsequently-filed suit).
Here, Standard correctly argues that the acceptance of the certified letter by an external courier fails to constitute "receipt" as required by § 1446(b). Unlike the receptionist in Roe, the courier had no authorization to receive service of process. Common sense similarly demands that a party should not be considered on notice of a suit until some member of the organization has actual notice of the complaint.
Spielman argues that California law dictates that service by mail is effective as long as the person receiving service is authorized to receive mail on behalf of the defendant, citing Neadeau v. Foster, 129 Cal. App. 3d 234, 238, 180 Cal. Rptr. 806, 808 (1982), and M. Lowenstein & Sons, Inc. v. Superior Court, 80 Cal. App. 3d 762, 768, 145 Cal. Rptr. 814, 816 (1978). In Neadeau, the court held that receipt of service by someone authorized by the defendant to receive mail constitutes "actual delivery to the defendant." 129 Cal. App. 3d at 238, 180 Cal. Rptr. at 808. Spielman's reliance on Neadeau is misplaced for two reasons. Neadeau did not involve federal removal. Furthermore, the "authorized" recipient of the mail was the defendant's office manager, and there was no evidence that the defendant did not receive actual notice. Id. at 237, 180 Cal. Rptr. at 807.
Spielman's reliance on M. Lowenstein is similarly flawed. The court there held merely that service by mail on an out-of-state defendant was permissible even though the defendant had designated an in-state agent for service. 80 Cal. App. 3d at 768, 145 Cal. Rptr. at 816-17. The case did not address the issues of who could effectively receive service by mail on behalf of another or when service by mail was effective in the context of federal removal.
Spielman's final argument that Standard engaged in unexplained delaying tactics in processing the United States mail also fails. Spielman refers to the fact that Standard has not explained why the mail room failed to process the complaint on Tuesday, February 21, 1996. The documentation submitted by the parties indicates that Standard followed the usual procedure in accepting and channeling its mail.
Thus, the Court holds that the statutory period under § 1446(b) commences upon receipt of the complaint by an authorized representative, through formal service of process or other informal means of actual notice. Further, only receipt by the defendant, or an appropriate representative or agent, constitutes "receipt" for purposes of triggering the thirty-day removal period. For these reasons, the Court finds that Standard's removal was timely.
IT IS HEREBY ORDERED that Spielman's motion to remand to state court is DENIED. The action will proceed under the appropriate case management schedule.
Dated: July 1, 1996.
William H. Orrick
United States District Judge
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