Summary
adopting Magistrate Judge's PFRD that concluded service was improper in part because process server never spoke or made contact with the defendant, therefore, the defendant had no opportunity to refuse service
Summary of this case from United Fin. Cas. Co. v. MoralesOpinion
Case No. 1:14-cv-00926-MV-GBW
05-21-2015
NATHAN SANCHEZ, et al., Plaintiffs, v. RODOLFO CANO-MARQUEZ, et al., Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition (PFRD), entered on April 20, 2015. Doc. 19.
On November 13, 2014, Plaintiffs filed a Motion to Remand to State Court and for an Award of Attorneys' Fees and Costs. Doc. 9. Plaintiffs argued that removal was in error because: (1) Defendant Safeco failed to obtain consent to removal from Defendant Cano-Marquez, and (2) in the alternative, Defendant Safeco had failed to meet its burden of establishing diversity of citizenship. See generally doc. 9.
In his PFRD, Magistrate Judge Gregory B. Wormuth recommended that the Court deny Plaintiffs' Motion. The Magistrate Judge first recommended finding that Defendant Safeco did not need to obtain consent to removal from Defendant Cano-Marquez because Defendant Cano-Marquez had never been properly served in the first instance. Thus, under 28 U.S.C. § 1446(B)(2)(A), his consent was not required. Second, the Magistrate Judge recommended that the Court find that Defendant Safeco had adequately established that Defendant Cano-Marquez was a Mexican citizen at the time of filing and removal for purposes of diversity jurisdiction. Based on this analysis, the Magistrate Judge recommended concluding that diversity jurisdiction existed and denying Plaintiffs' Motion in its entirety.
Neither side has filed objections to the PFRD, and, upon review of the record, I concur with the Magistrate Judge's findings and recommendations.
Wherefore, IT IS HEREBY ORDERED that the Magistrate Judge's Proposed Findings and Recommended Disposition (doc. 19) is ADOPTED, and Plaintiffs' Motion to Remand to State Court and for an Award of Attorneys' Fees and Costs (doc. 9) is DENIED.
/s/_________
UNITED STATES DISTRICT JUDGE