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Miletak v. AY&T Services, Inc.

United States District Court, N.D. California

June 16, 2017

NICK MILETAK, Plaintiff,
v.
AT&T SERVICES, INC., Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO REMAND, AND GRANTING DEFENDANT'S MOTION TO DISMISS DOCKET NOS. 12, 15, 30

          EDWARD M. CHEN United States District Judge.

         I. INTRODUCTION

         Pro se Plaintiff Nick Miletak filed the present action in state court seeking to void a prior settlement agreement which, he contends, is void under Cal. Bus. & Prof. Code § 16600 as contrary to public policy. Docket No. 1 Ex. A (“Compl.”). Defendant AT&T Services, Inc. removed the action to this Court and now moves to dismiss the case on the ground that Miletak's claim is barred by res judicata. Docket No. 12 (“Motion”). Miletak has moved to remand the case to state Court. The Court DENIES Miletak's motion to remand and GRANTS AT&T's motion to dismiss.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Miletak filed his initial action against AT&T, his employer at the time, in 2012 alleging state law claims for retaliation.[1] See generally Miletak v. AT&T Servs., Inc., C-12-5326-EMC.[2] In April 2013, Miletak and AT&T reached a settlement agreement that provided, in relevant part, that Miletak would resign from his employment with AT&T and would be ineligible for reemployment with AT&T or related entities. Motion at 3. Based on the parties' settlement, the Court dismissed the action. 2012 Docket No. 21.

         In June 2015, Miletak filed a Motion to Set Aside the Settlement Agreement pursuant to Federal Rule of Civil Procedure 60. 2012 Docket No. 25. Miletak argued that his former counsel had falsely represented that he had malpractice insurance, and then continued to negotiate the settlement agreement after Miletak had asked him to sign a substitution of counsel form. This, Miletak maintained, constituted “fraud on the court” justifying the vacatur of the settlement. Id. at 1. The Court denied the motion, holding that it was both untimely and substantively meritless. Docket No. 37. Miletak then filed a request for reconsideration, which the Court denied. Docket No. 42. In so doing, the Court warned Miletak against filing improper motions for reconsideration, and noted that after two meritless filings, “[s]hould Miletak again file a motion for reconsideration or other request for relief that this Court deems meritless, the Court will seriously consider the imposition of appropriate monetary sanctions.” Id. at 2.

         Miletak next filed a Notice of Appeal before the Ninth Circuit. 2012 Docket No. 43. He also sought appointment of counsel and leave to proceed in forma pauperis from this Court. 2012 Docket No. 45. This Court found that Miletak's motion to proceed in forma pauperis was meritless because “any appeal would be frivolous and not taken in good faith.” 2012 Docket No. 47. The Ninth Circuit likewise denied Miletak's motion to proceed in forma pauperis on the ground that his appeal was frivolous, and after Miletak failed to pay the filing fees, the Ninth Circuit dismissed the appeal.

         In December 2016, Miletak, acting pro se, filed the present Complaint in the Santa Clara County Superior Court alleging a violation of Business & Professions Code section 16600. AT&T removed the action to this Court on the basis of diversity on February 16, 2017.

         III. DISCUSSION

         A. Motion to Remand

         Miletak's motion to remand is not based on any substantive objection to this Court's jurisdiction; he nowhere disputes that complete diversity exists between the parties, or that the mount in controversy is satisfied. Miletak instead maintains that AT&T failed to comply with the requirement in 28 U.S.C. § 1446(b) that a notice or removal be filed within 30 days of the service of the complaint. Docket No. 15 (“Remand Motion”). Miletak states that after filing the complaint on December 8, 2016, he mailed the complaint to AT&T's California agent for service of process on December 14. Remand Motion at 3. On December 28, counsel for AT&T notified Miletak that the service packet had been received, but that it did not contain the Notice and Acknowledgement required by California law. Id. at 4. Miletak sent the additional forms the next day. On January 18, 2017, AT&T signed and returned the Notice and Acknowledgement forms. Docket No. 26 (“Remand Opp.”). Less than 30 days after that date, on February 16, AT&T filed its notice of removal.

         Miletak argues that because he “substantially complied” with the statutory requirements for service by mail when first sent the complaint on December 14, the clock for AT&T to remove the case began running no later than December 28, the date on which AT&T acknowledged that it had received the complaint but notified Miletak of the deficiency in his service. But the Supreme Court has held that the time period for removal only begins to run upon the completion of “formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 356 (1999). The fact that a defendant may already have received the complaint through less formal means is immaterial. Id. Miletak's purported “substantial compliance” did not constitute formal process under the relevant state statute.

         California law outlines the required procedures for service by mail on an in-state recipient.[3]See Cal. Civ. Proc. Code § 415.30. Specifically, the statute requires that a “copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” Id. § 415.30(a). Significantly, service under this provision is “deemed complete” only when the “written acknowledgment of receipt of summons is executed.” Id. § 415.30(d).

         In this case, therefore, Miletak had not formally served AT&T until January 18, 2017, when AT&T signed and returned the Notice and Acknowledgement forms.. That is the date, therefore, on which the removal clock began to run. Under Murphy Bros., the fact that AT&T had already actually received Miletak's complaint is irrelevant; what matters is the date of formal completion of service. As AT&T notes, numerous courts have reached the same result in virtually identical circumstances. See, e.g., Campbell v. Nationwide Mut. Ins. Co., No. SACV1491JLSDFMX, 2014 WL 12579812, at *1 (C.D. Cal. Apr. 21, 2014); Lerma v. URS Fed. Support Servs., No. 1:11-CV-00536-LJO, 2011 WL 2493764, at *5 (E.D. Cal. June 22, 2011). ...


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