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Calkins v. Bankers Life and Casualty Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

PATRICIA CALKINS, F/N/A/ PATRICIA OETMAN, PLAINTIFF,
v.
BANKERS LIFE AND CASUALTY COMPANY; MICHAEL A. NOWAK; THE BUNKER INSURANCE GROUP, INC., DEFENDANTS.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on plaintiff Patricia Calkins' ("Calkins") motion to remand this action to the Superior Court of California for the County of Placer pursuant to 28 U.S.C. § 1447 on the grounds that all defendants failed to join in or consent to defendant Bankers Life and Casualty Company's ("Bankers") Notice of Removal. Defendant Bankers opposes the motion. For the reasons set forth below,*fn1 plaintiff's motion to remand is DENIED.

BACKGROUND

On July 25, 2008, plaintiff filed a complaint in the Superior Court of California for the County of Placer, alleging claims for (1) Negligent Misrepresentation against all defendants; (2) Intentional Misrepresentation against all defendants; and (3) Professional Negligence against defendant Michael A. Nowak ("Nowak") and The Bunker Insurance Group, Inc. ("Bunker"). (Compl., Ex. 1 to Notice of Removal, filed Sept. 17, 2008.) Defendant Bankers was served with the Summons and Complaint in the action on or about August 18, 2009. (Notice of Removal, filed Sept. 17, 2008, ¶ 1.) Plaintiff filed proof of service with the Placer County Superior Court on September 24, 2008. (Decl. of Lissa A. Martinez in Supp. of Pl.'s Mot. to Remand ("Martinez Decl."), filed Oct. 16, 2008, ¶ 3.) On September 2, 2008, plaintiff served defendant Bunker with the Summons and Complaint. (Id. 4). Proof of service was filed September 24, 2008. (Id.) On September 12, 2008, plaintiff served defendant Nowak with the Summons and Complaint. (Id. ¶ 5.) Proof of service was filed on October 10, 2008. (Id.) Defendant Bankers removed the case to this court on September 17, 2008, on the basis of diversity jurisdiction. Prior to filing the Notice of Removal, Bankers' counsel attempted to discover whether Bunker and Nowak hade been served with the Summons and Complaint. (Decl. of John R. Hurley in Supp. of Opp'n to Mot. to Remand ("Hurley Decl."), filed Nov. 25, 2008, ¶¶ 2-3.) On September 15 and 16, counsel left voice messages at a phone number for Bunker, inquiring whether it had been served, but no one from Bunker returned the calls. (Id. ¶ 2.) On September 15 and 16, counsel also attempted to reach Nowak at a phone number obtained through an internet based "people finder." (Id. ¶ 3.)

However, no one answered and there was no answering machine or voice mail system. (Id.) As such, Bankers asserted that at the time of removal, it was informed and believed "that it is the only defendant that has been served with the Summons and Complaint in this action." (Notice of Removal ¶ 7.) Bankers did not receive copies of the proofs of service upon Bunker and Nowak until October 16, 2008. (Hurley Decl. ¶ 7.)

ANALYSIS

Plaintiff contends that defendant Bankers' Notice of Removal is procedurally defective because all defendants did not join in or consent to removal of the case to federal court within thirty days of service on the last defendant. Defendant contends that the failure to obtain the consent of all defendants is not a basis for remand because it exercised reasonable diligence in attempting to ascertain whether defendants had been served.

"[A]ny civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court" in which the action is pending. 28 U.S.C. § 1441(a). Section 1446 requires all defendants that have been served with process in the state court action to join or consent to the removal notice. See Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999), overruled on other grounds by Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 670 (9th Cir. 2006). If fewer than all the defendants have joined in a removal action, the removing party has the burden of explaining the absence of any co-defendants in the notice for removal. Id.

Various courts, including those in the Ninth Circuit,*fn2 have interpreted the requirement that all defendants must join in or consent to removal as imposing an obligation to join only those defendants: "(1) who have been served; and (2) whom the removing defendant(s) actually knew or should have known had been served." Milstead Supply Co. v. Cas. Ins. Co., 797 F. Supp. 569, 573 (W.D. Tex. 1992); see Lopez v. BNSF Ry. Co., No. 07-cv-1417, 2007 WL 4326734, at *4-5 (E.D. Cal. Dec. 7, 2007); Parker v. California, No. 98-4844, 1999 WL 111889, at *2 (N.D. Cal. Feb. 26, 1999); see also Cmty Bldg. Co. v. Maryland Cas. Co., 8 F.2d 678, 678-79 (9th Cir. 1926) (consent only required by defendants who have been served); Rodriguez v. County of Stanislaus, No. 08-cv-0856, 2008 WL 4765110, at *4-6 (E.D. Cal. Oct. 30, 2008). But see Anglada v. Roman, No. 06 Civ. 10173, 2006 WL 3627758, at *2 (S.D.N.Y. Dec. 12, 2006) ("This court will not expand the scope of the exceptions to allow for removal without the consent of all defendants who have been properly served by the time the removal petition is filed so long as the moving defendant had no knowledge that its co-defendants had in fact been served."). Moreover, "[t]he constructive notice element should only be applied to removing defendants who had a reasonable time to become aware of the filing of such service and had a reasonable time in which to obtain the consent or joinder of such other defendants." Id.; Parker, 1999 WL 111889, at *2. Where service could not be discerned through "reasonable diligence" of the removing defendant, the requirement that all defendants join in or consent is satisfied and not a basis for remand. Id.; Lopez, 2007 WL 4326734, at *5.

Some courts have held that a defendant's consultation of a state court docket to determine whether proofs of service were filed demonstrates reasonable diligence. Lopez, 2007 WL 4326734, at *5 (holding that the removing defendant was reasonably diligent, and thus, not required to join or obtain consent from other defendants, where the defendant checked the state court docket to ascertain whether the other named defendants had been served prior to filing their notice of removal); see Laurie v. Nat'l R.R. Passenger Corp., No. Civ. 01-6145, 2001 WL 34377958, at *1 (E.D. Pa. Mar. 13, 2001) (holding that the removing defendant was reasonably diligent where it checked the state court docket repeatedly for proof of service and called the Office of the Prothonotary on more than occasion to learn whether any such proof of service had been docketed); Milstead, 797 F. Supp. 569 (holding that the removing defendant was reasonably diligent where the notice of removal was filed three hours after the return of service on the non-removing defendant). Other courts have noted that more is required, such as attempting to contact the non-removing defendant. Pianovski v. Laurel Motors, Inc., 925 F. Supp. 86, 87 (N.D. Ill. 1996); see also Harlow Aircraft Mfg., Inc. v. Dayton Mach. Tool Co., No. 04-1377, 2005 WL 1153600, at *3 (D. Kan. May 16, 2005); Keys v. Konrath, No. 93C7302, 1994 WL 75037, at * 2 (N.D. Ill. Mar. 10, 1994).

In this case, defendant Bankers was reasonably diligent in seeking to ascertain whether the other named defendants had been served prior to removal.*fn3 At the time of removal, there were no proofs of service filed with the Placer County Superior Court indicating that either Bunker or Nowak had been served with the complaint. Rather, plaintiff did not file proofs of service until September 24, 2008 (Bankers and Bunker) and October 10, 2008 (Nowak). As such, a review of the state court docket would not have put defendant Bankers on notice that any of the other defendants had been served. See Lopez, 2007 WL 4326734, at *5; cf. Parker, 1999 WL 111889, at *2 (remanding the action where proof of service on the non-removing defendant was filed in state court over a month before the notice of removal). Further, defendant Bankers not only checked the state docket for proof of service on the other named defendants, but also attempted to contact Bunker and Nowak multiple times to ascertain whether they had been served with the Summons and Complaint. Cf. Pianovski, 925 F. Supp. at 87; Harlow, 2005 WL 1153600, at *3; Keys, 1994 WL 75037, at *2. Bankers did not receive a response from either co-defendant. Accordingly, the court finds that defendant Bankers exercised reasonable diligence their actions to discern whether service had been effected on the other defendants. As such, the requirement that all defendants join in or consent to removal is satisfied.*fn4

CONCLUSION

For the foregoing reasons, plaintiff's motion to remand this action to the Superior Court of California for the County of Placer is DENIED.

IT IS SO ORDERED.


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