Opinion
3:21-cv-01476-YY
01-19-2023
TORIANDRE GIVENS, Plaintiff, v. MULTNOMAH COUNTY SHERIFF, SERGEANT KURTISS MORRISON, LT. POOLE, SGT. BRITTON, SGT. OLSEN, SGT. SCOTT, Defendants.
FINDINGS AND RECOMMENDATION
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff, a self-represented adult in custody, initiated this civil action in Multnomah County Circuit Court. Defendants removed the case to this court, and plaintiff filed a Motion to Object (ECF 8) in which he contends that defendants failed to timely remove this case. The court construes plaintiff's motion as a motion to remand. So construed, plaintiff's motion should be DENIED.
I. Background
On March 11, 2021, plaintiff filed a small claims action in Multnomah County Circuit Court, Case No. 21SC05912. Supp. Br., Ex. 1, ECF 19, at 5. Defendants filed an answer and request for jury trial on April 23, 2021. See Givens v. Multnomah County Sheriff, et al, Multnomah County Circuit Court Case No. 21SC05912, Dkt. Entry April 23, 2021. Because of defendants' jury trial demand, plaintiff's case could no longer be resolved in the small claims department, and on April 23, 2021, a judge in Multnomah County Circuit Court issued an order to “[t]ransfer the case to circuit court.” See Supp. Br., Ex. 3, ECF 19, at 11. The judge also ordered plaintiff to “[w]ithin 20 days after the mailing of the notice, . . . file a formal complaint with the court and serve by mail a summons and copy of the complaint on the Defendants at the address they have designated on their request,” as well as file proof of service with the court. Id. The order informed plaintiff that any claims in the formal complaint would not be “limited to the amount stated in the claim filed in the small claims department, but it must relate to the same controversy.” Id. That same date, the clerk also issued to plaintiff a “Notice of Transfer to Circuit Court: Defendant's Request for a Jury Trial,” directing plaintiff to file a formal complaint with the court, “[s]erve the defendant by mail a summons and copy of the complaint at the address the defendant submitted to the court,” and pay additional filing fees. Id., Ex. 2, ECF 19, at 10.
Dockets for Multnomah County Circuit Court cases are available on the Oregon Judicial Department's website, as well as private research cites such as Westlaw, and are public records subject to judicial notice. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (taking judicial notice of court records pursuant to Federal Rule of Evidence 201(b)(2), which permits judicial notice of a fact that is “not subject to reasonable dispute in that it is . . . (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”).
Plaintiff filed his small claims action using a small claims form. Supp. Br., Ex. 1, ECF 19, at 5; see also https://www.courts.oregon.gov/forms/Documents/SCSmallClaimAndNoticeOfSmallClaim.pdf. Thus, after defendants requested a jury trial, the state court directed plaintiff to file a formal complaint.
Plaintiff filed a formal complaint on May 11, 2021. Notice Removal, Ex. 1, ECF 1, at 4; Givens v. Multnomah County Sheriff, et al, Multnomah County Circuit Court Case No. 21CV21678, Dkt. Entry May 11, 2021. However, on his formal complaint, plaintiff wrote the small claims case number 21SC05912 in the caption. Notice Removal, Ex. 1, ECF 1, at 4. At the time plaintiff filed his formal complaint-on May 11, 2021, at 3:55 p.m.-no civil case had yet been opened and no civil case number had been assigned. See Givens, Case No. 21CV21678, Dkt. Entry May 11, 2021 (indicating a docket entry for the filing of a formal complaint was subsequently created on May 28, 2021, at 8:47 a.m.). Ultimately, the civil case was assigned case number 21CV21678.
On May 13, 2021, the Multnomah County Sheriff's Office executed service of the formal complaint, summons, and other documents through office service on the Multnomah County Attorney. See Givens, Case No. 21SC05912, Dkt. Entries May 13, 2021 (showing five proofs of service were filed); Reply, Exs., ECF 17, at 16-20 (copies of May 13, 2021 proofs of office service on Sheriff Michael Reese, Sgt. Olsen, Lt. Pool, Sgt. Scott, and Sgt. Britton). The proofs of service referenced the small claims case number 21SC05912 and were docketed in the small claims case. See Givens, Case No. 21SC05912, Dkt. Entries May 13, 2021.
Plaintiff filed an amended complaint on May 17, 2021. See Mot. Object, Ex. 1., ECF 8, at 5. Plaintiff again wrote the small claims case number in the caption. At some point, civil case no. 21CV21678 was assigned and the amended complaint was docketed in the civil case on June 3, 2021. Givens, Case No. 21CV21678, Dkt. Entry June 3, 2021 (indicating “Complaint-Amended” filed). On June 24, 2021, a certificate of service for the amended complaint was entered in the record for civil case number 21CV1678. Givens, Case No. 21CV1678, Dkt. Entry June 24, 2021; Davis Decl., Ex. 2, ECF 12, at 5. Plaintiff has provided copies of two certificates of service referencing dates in June 2021. Reply, Exs., ECF 17, at 44-46. These documents, however, are ambiguous and confusing. One form indicates it is a verified copy of an original filed on June 24, 2021. Reply, Exs., ECF 17, at 44, 46. This form, which was dated and signed by plaintiff on June 17, 2021, indicates that personal service was accomplished on that date at 4 p.m. at 501 SE Hawthorne Ave., #500. Id. at 44. However, plaintiff could not have completed personal service himself because he was incarcerated on that date. Additionally, plaintiff marked the box for substitute service, but did not complete the details. Id. On another form, plaintiff indicates that substitute service was made by delivering the documents to 501 SW Hawthorne Ave., #500, on June 23, 2021, at 9 p.m. Id. at 45. But that certificate is missing a signature page and, again, plaintiff could not have effectuated personal service because he was incarcerated at that time.
The amended complaint is stamped May 17, 2021, but the docket states it was entered in case no. 21CV21678 on June 3, 2021. Davis Decl., Ex. 2, ECF 12, at 5.
The three documents appear to have been filed out of order. The documents entered as ECF 44 and 46 appear to go together, as they indicate they are verified copies of the original filed on June 24, 2021. The other document references serve that purportedly occurred on June 23, 2021, but is a verified copy of an original that was filed on November 19, 2021.
On July 21, 2021, the presiding court clerk for Presiding Judge Stephen Bushong sent plaintiff a letter stating, “There are unfortunately still some things that need to be fixed.” Supp. Br., Ex. 7, ECF 19, at 16. Specifically, plaintiff was advised “[t]here is no proof of service of the complaint in the file.” Id. The letter recognizes there is “proof of service in the small claims case (21SC05912),” and that “[i]t may be that you intended to serve the 21CV21678 paperwork.” Id. (emphasis in original). However, plaintiff was admonished that “unfortunately the case number on the service document is the small claims case” and “[b]ecause this was served in the S.C. case number, it does not count as service of the complaint in the CV case.” Id. (emphasis in original). On August 2, 2021, the court followed up by issuing a Notice of Intent to Dismiss case no. 21CV21678 due to lack of proof of service. Id., Ex. 9, ECF 19, at 19.
Plaintiff filed another certificate of service on August 16, 2021. Givens, Case No. 21CV21678, Dkt. Entry August 16, 2021; see also Notice Removal, Ex. 1, at 12, ECF 1, at 15 (certificate of service dated August 10, 2021). In this certificate of service, which is captioned with civil case number 21CV21678, and dated August 10, 2021, plaintiff indicates that he mailed copies of the complaint and summons to defendant Captain Morrison at 501 SE Hawthorne, #500, Portland, Oregon 97220. Supp. Br., Ex. 10, ECF 19, at 20-21. He also noted “it was sent to Sheriff to be served as well as sent through mail to defendant and to county attorney on behalf of defendant.” Id.
Plaintiff repeatedly filed for default against defendants. See Givens, Case No. 21CV21678, Dkt. Entry June 30, 2021 (motion for default judgment filed); id., Dkt. Entry July 21, 2021 (motion for default order filed); id., Dkt. Entry August 16, 2021 (motion for default order filed); id., Dkt. Entry September 3, 2021 (motion for default order filed); id., Dkt. Entry November 17, 2021 (motion for default order filed).
On September 20, 2021, Bonnie A. Calhoun, judicial clerk to Presiding Judge Bushong sent the following email to defendants' counsel, David Blankfeld:
Good afternoon,
We have received a motion for default in this case. It appears that service in this civil case was filed in the small claims case. I've attached one of the proof of services to this email as an example. I have discussed with Judge Bushong whether this acceptable service, and he said to ask you whether Defendants are accepting the service as is or will object to the service and require Mr. Givens to re-serve and re-file the proof of service in the civil case. Please note that since Mr. Givens does not have access to email, I cannot cc him on this email but will print the email correspondence out and send him hard copies.Notice Removal, Ex. 1, at 17-18, ECF 1. Blankfeld responded:
Hello Ms. Calhoun,
I am happy to accept service at this time but I wish to clarify which case/complaint I am accepting for. County defendants have appeared and answered in 21sc05912, the attached document, and 21sc00045.
Service is now accepted for 21cv21678.
Thank you.Id. at 17. Calhoun and Blankfeld further clarified the service/waiver issue in subsequent emails. Calhoun asked Blankfeld:
Apologies, and one further clarification, I am confirming that the Defendants are accepting service of the summons and complaint served by the Sheriff on May 13 that were labelled as court case 21SC05912 but were intended to be submitted in 21CV21678. I see in the file certificates of service for Lt. Pool, Sheriff Michael Reese, Sgt. Scott, Sgt Olsen, and Sgt Britton.Id. at 16. On September 24, 2021, Blankfeld responded:
Yes, I am now accepting service for all the named County defendants in 21cv21678. Defendants will timely appear and defend.Id. Copies of these emails were mailed to plaintiff. Supp. Br., Ex. 12, ECF 19, at 24.
Within 30 days of accepting service, defendants filed a notice of removal with this court on October 8, 2021. Notice Removal, ECF 1; Givens, Case No. 21CV21678, Dkt. Entry October 8, 2021. Multnomah County Circuit Court closed its case on that date. Id.
On October 15, 2021, defendants filed a Motion to Dismiss for Failure to State a Claim (ECF 5), and on October 27, 2021, plaintiff filed a Motion to Object (ECF 8), which, again, is construed as a motion to remand. ECF 8. Due to the lack of documentation regarding the events that occurred in the Multnomah County Circuit Court cases, this court asked the parties for supplemental briefing, which they filed, along with additional exhibits.
On November 21, 2021, the presiding court clerk for Presiding Judge Bushong again advised plaintiff by letter that “[m]ost of the proofs of services that were sent were for the May 13th services of the small claims complaint, and we are unable to determine if the civil complaint had been properly served.” Supp. Br., Ex. 14, ECF 19, at 50-51. The letter also advised plaintiff that the case had been removed to federal court and that Multnomah County Circuit Court no longer had jurisdiction over the case. Id.
II. Legal Standards Regarding Removal
Generally, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (“Any civil action may be removed to federal district court so long as original jurisdiction would lie in the court to which the case is removed). 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, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” 28 U.S.C. § 1446(b)(1).
“The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The presumption against removal means that ‘the defendant always has the burden of establishing that removal is proper.'” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (quoting Gaus, 980 F.2d at 566).
III. Discussion
As noted, defendants filed their Notice of Removal in this court on October 8, 2021. Plaintiff objects to the removal on the basis it is untimely. Plaintiff claims that defendants were served with the formal complaint on May 11, 2021, June 24, 2021, August 30, 2021, and September 7, 2021, but failed to file an answer. Mot. Obj., ECF 8, at 3-4. In response, defendants contend that they were not properly served until they accepted service on September 21, 2021:
Plaintiff's second basis for objecting to removal is that Defendants failed to timely remove this action to federal court. Plaintiff's thirty page Motion includes the email correspondence between Presiding court and Defendants' counsel. As shown by the correspondence, Plaintiff did not properly accomplish service upon Defendants until Defendants accepted service in case 21cv21678 on September 21, 2021. As noted above, Notice of Removal was timely filed on October 8, 2021.Def. Resp. 2, ECF 11 (footnote omitted).
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). The Oregon Supreme Court has established a two-step methodology for determining whether service of process is adequate under Oregon Rule of Civil Procedure 7. Baker v. Foy, 310 Or. 221, 228-29 (1990). First, the court must determine whether “the method in which service of summons was made [was] one of the methods described in 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 “satisfy[ies] the ‘reasonable notice' standard of adequate service set forth in ORCP 7 (D)(1).” Id. at 229. Rule 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, the court examines “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 the plaintiff's conduct was objectively reasonable, not on the defendant's subjective notice). “Under the second prong of the analysis, ‘the burden is on plaintiff to show that, in the individual circumstances, the manner of service employed' satisfied the reasonable notice standard in ORCP 7 D(1).” Roller v. Herrera, No. 3:18-CV-00057-HZ, 2018 WL 2946395, at *4 (D. Or. June 11, 2018) (citing Edwards v. Edwards, 310 Or. 672, 678-79 (1990)).
Here, the question is whether plaintiff's service of a formal complaint containing the incorrect small claims case number was reasonably calculated, under the totality of the circumstances, to apprise defendants of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. One could argue it should have come as no surprise to defendants that plaintiff had filed a formal complaint following their request for a jury trial in the small claims case. This triggered the state court to issue its notice-which defendants also received-directing plaintiff to file a formal complaint. Moreover, although the formal complaint bore the small claims case number, it was arguably sufficient to alert defendants that a formal complaint had been filed in response to their jury trial demand and the court's notice. In addition, on May 11, 2021, the Multnomah County Sheriff served the formal complaint and summonses by office service on the County Attorney, the same counsel who had appeared in the small claims case. See Givens, Case No. 21SC05912 (listing defendants' counsel).
But that is not the end of the story. Importantly, the Multnomah County Circuit Court admonished plaintiff that service was not properly accomplished when he served defendants with a formal complaint containing the wrong case number. See Supp. Br., Ex. 7, ECF 19, at 16-17. In the court's July 21, 2021 letter, plaintiff was advised that service in the small claims case “does not count as service of the complaint in the CV case.” Id. at 16 (emphasis in original). Indeed, on July 28, 2021, the state court again cautioned plaintiff that he was required to file his documents in the correct case. See Supp. Br., Ex. 8, ECF 19, at 8.
Additionally, as defendants have explained in their supplemental briefing, “[t]here was some confusion regarding the case numbers because plaintiff has filed numerous lawsuits during his current incarceration.” Blankfeld Decl., ECF 19. In fact, plaintiff “recently filed his tenth lawsuit against the Sheriff's Office.” Id. Plaintiff seems to claim that he properly served defendants with the amended complaint, but again, the amended complaint contained the small claims case number, at least initially, and the certificates of service are ambiguous and confusing, so much so that the court had to reach out to defendants' counsel to see if he would accept service or require plaintiff to “re-serve and re-file the proof of service.” Notice Removal, Ex. 1, at 17, ECF 1.
Given the totality of the circumstances here, plaintiff has failed to meet his burden of showing that service was objectively and reasonably calculated to apprise defendants of the pending civil action. See Edwards, 310 Or. at 678-79. Defendants also have met their burden of establishing that removal is proper. See 28 U.S.C. § 1446(b)(2)(c). Therefore, plaintiff's request to remand the case should be denied.
RECOMMENDATION
Plaintiff's Motion to Object (ECF 8) should be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by January 6, 2023. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.