United States District Court, D. Oregon
County Circuit Court Case No. 16CV36714
Thi Minh Tran, pro se.
I. Wosniak and Bradford E. Klein, WRIGHT FINLAY & Zak,
LLP, Of Attorneys for Defendants.
OPINION AND ORDER
Michael H. Simon United States District Judge
H. Simon, District Judge.
Linh Thi Minh Tran filed this lawsuit pro se in the
Circuit Court of the State of Oregon for the County of
Clackamas against Clear Recon Corp. ("CRC");
Mortgage Electronic Registration Systems, Inc.
("MERS"); Ocwen Loan Servicing, Inc.
("Ocwen"); and Deutsche Bank National Trust
Company, as trustee for GSAA Home Equity Trust 2006-16,
asset-backed certificates series 2006-16 ("Deutsche
Bank") (collectively, "Defendants"). On
December 14, 2016, Ocwen, Deutsche Bank, and MERS
(collectively, "Removing Defendants") removed this
case to this Court on the basis of diversity of citizenship.
Plaintiff moves to remand, primarily on the ground that the
notice of removal is untimely. For the following reasons,
Plaintiffs motion is granted.
remove a state court action to federal court, a defendant
must file a notice of removal "within 30 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)(1); see also Murphy Bros., Inc.
v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48
(1999) (holding that "a named defendant's time to
remove is triggered by simultaneous service of the summons
and complaint"). If a plaintiff serves multiple
defendants at different times, "any earlier-served
defendant may consent to the removal even though that
earlier-served defendant did not previously initiate or
consent to removal." 28 U.S.C. § 1446(b)(2)(C).
"The issue of the sufficiency of service of process
prior to removal is strictly a state law issue." Lee
v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir.
1993), overruled on other grounds by Cal. Dep't of
Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir.
Baker v. Foy, the Oregon Supreme Court established a
two-step methodology for determining whether service of
process is adequate under Oregon Rule of Civil Procedure 7
("ORCP"). 310 Or. 221, 228-29 (1990). First, the
court must determine whether "the method in which
service of summons was made [was] one of those methods
described in ORCP 7 D(2), specifically permitted for use upon
the particular defendant by ORCP 7 D(3), and accomplished in
accordance with ORCP 7 D(2)." Id. at 228. If
so, then service is presumptively adequate. Id. at
229. If service did not comply with one of the presumptively
adequate methods in ORCP 7 D, then the court moves on to step
two of the analysis. Step two asks whether the manner of
service "satisf[ies] the 'reasonable notice'
standard of adequate service set forth in ORCP 7 D(1)."
Id. at 229. ORCP 7 D(1) requires that service be
made "in any manner reasonably calculated, under all the
circumstances, to apprise the defendant of the existence and
pendency of the action and to afford a reasonable opportunity
to appear and defend." To determine whether or not
service of process was "reasonably calculated" to
apprise defendants of the action, courts examine "the
totality of the circumstances as they were known to plaintiff
at the time of service." Paschall v. Crisp, 138
Or.App. 618, 624 (1996); see also Davis Wright Tremaine,
LLP v. Menken, 181 Or.App. 332, 339 (2002) (focusing on
whether plaintiffs conduct was objectively reasonable, not on
the defendant's subjective notice). The plaintiff bears
the burden of showing that service was reasonably calculated
to apprise each defendant of the pending action. Murphy
v. Price, 131 Or.App. 693, 696 (1994).
argues that the notice of removal is procedurally defective
because it is untimely and because CRC did not consent to the
removal. Plaintiff seeks costs and fees resulting
from the assertedly improper removal.
Timeliness of Removal
argues that she served MERS (the Removing Defendant with the
latest receipt of service) on November 10, 2016, requiring
Defendants to file a notice of removal by December 9, 2016.
See ECF 9 at 3-4. Because Removing Defendants filed
the notice of removal on December 14, 2016, Plaintiff argues,
the notice was untimely. Removing Defendants respond that the
30-day removal window has not yet closed, or even opened,
because service of process on Removing Defendants was
inadequate. The Court applies the two-part
Baker v. Foy test for determining the adequacy of
service of process in Oregon.