United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION TO REMAND, AND
GRANTING DEFENDANT'S MOTION TO DISMISS DOCKET NOS. 12,
M. CHEN United States District Judge.
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.
FACTUAL AND PROCEDURAL BACKGROUND
filed his initial action against AT&T, his employer at
the time, in 2012 alleging state law claims for
retaliation. See generally Miletak v. AT&T
Servs., Inc., C-12-5326-EMC. 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.
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.
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
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.
Motion to Remand
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.
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.
law outlines the required procedures for service by mail on
an in-state recipient.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).
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,