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Shah v. Meier Enterprises, Inc.

United States District Court, D. Oregon

June 15, 2017

SHANTUBHAI SHAH, Plaintiff,
v.
MEIER ENTERPRISES, INC., a Washington Corporation; PAUL GIEVER, CEO/President; STEVEN ANDERSON, an Individual; BOBBI KEEN, an Individual; MEIER ENTERPRISES OFFICERS, Individuals; MEIER ENTERPRISES DIRECTORS, Individuals; MEIER ENTERPRISES EMPLOYEE OWNERS, Individuals; Defendants.

          Shantubhai N. Shah Plaintiff pro se.

          Krishna Balasubramani Sather Byerly & Holloway, LLP Attorney for Defendant Meier

          OPINION AND ORDER

          JOHN JELDERKS, Magistrate Judge.

         Plaintiff Shah brings this action against Defendants Meier Enterprises, Inc. ("Meier"); individuals Paul Giever, Steven Anderson, Bobbi Keen; and Meier Enterprises officers, directors, and employee owners, alleging breach of contract, age and race discrimination, and whistle blower retaliation. Plaintiff originally filed his complaint in Washington County Circuit Court for the State of Oregon on November 22, 2016. (Dkt. #1). On February 10, 2017, Meier removed the case to this court based on federal question jurisdiction for Plaintiffs claims under 42 U.S.C. §2000e-2 and 29 U.S.C. § 623 and supplemental jurisdiction for Plaintiffs state law claims. (Dkt. #1). The Notice of Removal asserts that counsel for Meier also represents defendants Giever, Anderson and Keen, but also asserts that these defendants have not been properly served. Id. Only Meier has appeared in the action pending in this court. Currently before the Court are Plaintiffs motion for remand and motion for entry of default.

         Background

         According to the allegations in Plaintiffs Complaint, Plaintiff is a "Registered Professional Engineer" who was employed by Meier Enterprises as a Sr. Electrical Engineer/Project Manager. Complaint at ¶3. Meier Enterprises is a Washington Corporation with its principal place of business in Kermewick, Washington. Plaintiff alleges that Paul Giever is the interim CEO/President and that Steve Anderson is President and CEO of Meier Enterprises and was Plaintiffs Supervisor. Complaint at ¶¶ 2, 4, 6.[1] Defendant Bobbi Keen is identified in her Declaration in Response to the Motion to Remand as the Controller for Meier Enterprises, Inc.

         On November 22, 2016, Plaintiff commenced an action against Defendants in Washington County Circuit Court for the State of Oregon. On November 23, 2016, Plaintiff mailed one copy of the complaint and summons by first class mail and one copy certified mail with no return receipt to Meier Enterprises, Inc. at their principal place of business in Kennewick, Washington. Balasubramani Decl. Ex. 3; Keen Decl. Ex. 10. According to United States Postal Service tracking information, the certified mailing was delivered to the "Front Desk/Reception" on November 28, 2016. Balasubramani Decl. Ex. 3. In a letter to Plaintiff dated December 21, 2016, attorney George Cicotte, expressed on behalf of Meier Enterprises, Inc., and the other defendants it employs, that no answer would be filed in the Washington County case because Plaintiff had not properly served the complaint. Mr. Cicotte referenced the Summons dated November 23, 2016 that Plaintiff mailed and asserted that by signing as Plaintiff did, he had falsely certified that he was not a party to the litigation and that, as a result, the summons failed to comply with the applicable rule of civil procedure. Cicotte Decl. Ex. 8. In the letter, Mr. Cicotte writes that "[i]n an attempt to resolve this situation and to protect itself from additional liability, Meier hereby makes an offer of judgment to you in the amount of $1, 000." Id.

         On December 27, 2016, Mr. Cicotte responded by email to an email from Plaintiff that asserted that the November 2016 service was valid. Cicotte Decl. Ex. 7. Mr. Cicotte reiterated that service was not valid and offered to waive the service errors and file an answer to Plaintiffs complaint if Plaintiff dismissed all individual defendants from the case. Id.

         In his Declaration, Mr. Cicotte asserts that he contacted the Washington County Circuit Court clerk's office around January 5f, 2017, and was told that Plaintiff's service was not proper. He has attached handwritten notes he asserts he took of that conversation. Cicotte Decl. Ex, 9. Mr. Cicotte also declares that he spoke with Plaintiff on January 16, 2017, regarding service deficiencies.

         On January 4, 2017, Plaintiff filed a Proof of Service - Summons dated November 23, 2016 in Washington County Circuit Court. Balasubramani Decl. Ex. 2. On January 16, 2017, Plaintiff filed with the Washington County Circuit Court a Certificate of Mailing dated January 7, 2017 which certified that summons had been mailed by first class and certified mail addressed to Mr. Paul Giever, Secretary/CEO, Meier Enterprises, 12W Kennewick Ave., Kennewick, WA, 99336 and delivered on November 28, 2016. Balasubramani Decl. Ex. 3.

         On January 20, 2017, Plaintiff served Meier Enterprises' Oregon registered agent by restricted certified mail, return receipt. Balasubramani Decl. Ex. 5; Notice of Removal Ex. A. Meier Enterprises filed a Notice of Removal on February 10, 2017. In its Notice of Removal, it asserts that its counsel also represents defendants Paul Giever, Steven Anderson and Bobbi Keen but these defendants have not been properly served and therefore need not be consulted regarding consent to removal. Meier Enterprises also asserts that it is "unaware of any individuals or businesses named Meier Enterprises Officers, Meier Enterprises Directors and Meier Enterprises Employee Owners, " and that these defendants have not been properly served so need not be consulted regarding consent to removal.

         Discussion

         Meier argues that the Washington County Circuit Court already determined that Plaintiffs service in November 2016 was inadequate. In support, it cites Mr. Cicotte's declaration, his notes regarding his conversation in January 2017 with the Washington County Clerk's office, and the Oregon Judicial Case Information Network Register of Actions for the Washington County case. Balasubramani Decl. Ex. 4. In the Register of Actions, a November 22, 2016 entry indicates that Meier Enterprises and Paul Giever were served on November 23, 2016. It lists the three remaining defendants as "Unserved." According to the Register, a motion for default order was filed on December 28, 2016 and a motion for entry of judgment was filed December 29, 2016. A January 4, 2017 entry indicates "Proof of Service - not a good service (mailing) w/out sub serve." There is a January 4, 2017 entry titled "Summons, " a January 16, 2017 entry titled "Affidavit-Mailing" and a February 6, 2017 entry titled "Proof-Service, " A February 10, 2017 entry indicates Plaintiffs motion for default was denied on January 31, 2017.

         The relevant removal and remand statutes provide as follows: 28 U.S.C. ...


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