United States District Court, D. Oregon
Shantubhai N. Shah Plaintiff pro se.
Krishna Balasubramani Sather Byerly & Holloway, LLP
Attorney for Defendant Meier
OPINION AND ORDER
JELDERKS, Magistrate Judge.
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
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. Defendant Bobbi
Keen is identified in her Declaration in Response to the
Motion to Remand as the Controller for Meier Enterprises,
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."
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.
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
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.
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.
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.
relevant removal and remand statutes provide as follows: 28