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Tran v. Clear Recon Corp.

United States District Court, D. Oregon

February 15, 2017

CLEAR RECON CORP. et al., Defendants.

         Clackamas County Circuit Court Case No. 16CV36714

          Linh Thi Minh Tran, pro se.

          Lukasz I. Wosniak and Bradford E. Klein, WRIGHT FINLAY & Zak, LLP, Of Attorneys for Defendants.


          Michael H. Simon United States District Judge

         Michael H. Simon, District Judge.

         Plaintiff 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.


         To 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. 2008).

         In 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).


         Plaintiff argues that the notice of removal is procedurally defective because it is untimely and because CRC did not consent to the removal.[1] Plaintiff seeks costs and fees resulting from the assertedly improper removal.

         A. Timeliness of Removal

         Plaintiff 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.[2] The Court applies the two-part Baker v. Foy test for determining the adequacy of service of process in Oregon.

         1. ...

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