Emakpor v. First Coast Security Solutions, Inc. ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LUCKY EMAKPOR,
Plaintiff,
v. Case No. 1:18-cv-00157 (TNM)
FIRST COAST SECURITY
SOLUTIONS, INC.,
Defendant.
MEMORANDUM ORDER
Before the Court are the Defendant’s Notice of Removal, ECF No. 1; the Plaintiff’s
Motion to Remand the case back to the Superior Court of the District of Columbia, ECF
No. 6, which is fully briefed; and the parties’ responses to the Court’s sua sponte Order of
March 15, 2018 seeking briefing on the timeliness of the Defendant’s removal, ECF Nos.
10 and 14. Upon consideration of the pleadings, relevant law, related legal memoranda in
opposition and in support, and the entire record, I find that removal was untimely. This
matter will be remanded to the Superior Court of the District of Columbia.
On November 16, 2017, Plaintiff Lucky Emakpor filed his pro se claim in the Small
Claims and Conciliation Branch of the Superior Court of the District of Columbia, seeking
at least $3,600 in funds allegedly improperly withheld from his paycheck. Certified Copy
of Transfer Order and Docket Sheet, ECF No. 4, at 5, 7. First Coast removed the case to
federal court on January 24, 2018, citing federal question jurisdiction. Not. of Removal
¶ 6. First Coast stated that removal was timely as required by 28 U.S.C. § 1446(b) as it
received the summons and complaint on December 26, 2017, and that jurisdiction and
venue are proper under 28 U.S.C. § 1441(a). Id. ¶¶ 2, 5-7. Mr. Emakpor, still pro se at the
time, opposed First Coast’s assertion of federal subject matter jurisdiction. Mot. for
Remand. Because the Superior Court docket showed that service had been effectuated on
November 22, 2017, seemingly making First Coast’s removal untimely by over a month, I
ordered First Coast to explain why removal was timely. Minute Order March 15, 2018;
see also Def.’s Response in Supp. of Timely Removal, ECF No. 10. Mr. Emakpor, through
retained counsel, has filed an omnibus response to First Coast’s opposition to the motion
to remand and its response to First Coast’s explanation as to why removal was timely. Pl.’s
Omnibus Response to Def.’s Opp. to Pl.’s Mot. to Remand, ECF No. 14.
A notice of removal “shall be filed 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). Removal
statutes are to be strictly construed, Williams v. Howard Univ., 984 F. Supp. 27, 29 (D.D.C.
1997), and on a motion to remand, the defendant bears the burden of proving that the court
has jurisdiction. Phillips v. Corrections Corp. of America, 407 F. Supp. 2d 18, 20 (D.D.C.
2005) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).
In this case, I do not need to determine whether the Court’s federal question
jurisdiction is properly invoked because First Coast clearly removed the matter beyond the
statutorily-prescribed time period. Per District of Columbia Code,
Actions shall be commenced in the Small Claims and
Conciliation Branch by the filing of a statement of claim
. . . . The clerk of the Branch shall, at the request of an
individual, prepare the statement of claim and other papers
required to be filed in an action in the Branch . . . . A copy
of the statement of claim and verification shall be made a
part of the notice to be served upon the defendant named
therein. The mode of service shall be by the United States
marshal, as provided by law, or by registered mail or by
certified mail with return receipt[.]
D.C. Code § 16-3902. Mr. Emakpor’s Complaint, which he completed using Small Claims
Form 11, provided a sworn statement of the claim and gave notice of a date and time for a
hearing to be held on the claim. Certified Copy of Transfer Order and Docket Sheet, 5-7.
The Complaint also included a Deputy Clerk’s signature to attest to receiving
Mr. Emakpor’s statement of the claim. Id. at 5. Mr. Emakpor paid for service of the
statement of claim to be made by certified mail, and the Superior Court docket shows that
the receipt of service by certified mail was filed on November 22, 2017. Id. at 4, 14-15.
Thus, it appears that service of process was properly prepared and executed.
First Coast does not contest that certified mail receipt was filed on November 22,
2017, or that the recipient of service, Incorp Services, Inc., is First Coast’s registered agent
in the District of Columbia. Def.’s Response in Supp. of Timely Removal ¶¶ 2,4. Rather,
First Coast appears to blame its registered agent for not providing it with the appropriate
documents. Id. ¶ 4 (“While Incorp . . . is First Coast’s registered agent in the District of
Columbia, First Coast did not receive any notice or copy of Plaintiff’s Complaint in
November 2017.”); id. ¶ 5 (“On December 21, 2017, Incorp notified First Coast that a
hearing had been scheduled for January 11, 2018 . . . Incorp provided First Coast notice of
the hearing, but nothing else.”). This is unacceptable. Service by certified mail is valid
upon delivery to a person qualified to receive the certified mail, such as a registered agent.
See Small Claims R. 4(c)(2).1 Regardless of when First Coast alleges that it received the
1
Available at https://www.dccourts.gov/sites/default/files/rules-superior-
court/Small%20Claims%20Rule%204.%20Service%20of%20Process.pdf