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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JUSTIN AND ANGELA PACUSKA,

Plaintiff,

v.

ALLIED VAN LINES, INC.,

Defendant.

Case No. 05-5830

ORDER GRANTING PLAINTIFFS’

MOTION FOR REMAND

This matter comes before the Court on Plaintiffs’ Motion for Remand to State Court. After

reviewing all materials submitted by the parties and relied upon for authority, the Court is fully

informed and hereby grants Plaintiff’s motion and remands this case to the state court.

INTRODUCTION AND BACKGROUND

The material facts are undisputed. The Plaintiffs served Defendant Allied Van Lines on

November 2, 2005 with a summons and complaint. On December 8, 2005 counsel for Defendant

sent written correspondence to Plaintiff indicating an intention to remove the action to federal court

and making a written demand on Plaintiff, pursuant to Washington Superior Court Civil Rule 3 (CR

3), that the summons and complaint be filed with the Superior Court. On December 13, 2005 the

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26 ORDER - 2

summons and complaint were filed in the Superior Court of Washington for Clark County. On

December 28, 2005 the Defendant filed a Notice of Removal with this Court asserting original

jurisdiction. This Notice of Removal was filed within 30 days of the filing of the summons and

complaint, yet outside 30 days of service of the summons and complaint on the Defendant. The

Plaintiff moves for remand to state court on the basis that the notice of removal is untimely.

MOTION TO REMAND

The burden of establishing federal jurisdiction is on the party seeking removal, and the

removal statute is strictly construed against removal jurisdiction. Prize Frize, Inc. v. Matrix (U.S.),

Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). The defendant has the burden of showing that it has

complied with the procedural requirements for removal. Riggs v. Plaid Pantries, Inc., 233 F.Supp.2d

1260, 1264 (D.Or., 2001); Schwartz v. FHP Int'l Corp., 947 F.Supp. 1354, 1360 (D.Ariz. 1996). 

There is a strong presumption against federal jurisdiction. If there is any doubt as to the existence of

federal jurisdiction, the court should remand the matter to state court. Gas v. Miles, Inc., 980 F.2d

564, 566 (9th Cir.1992).

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 Speciality Ins. Co., 319 F.3d 1089, 1090

(9th Cir. 2003). Furthermore, any civil action of which the district courts have federal question

jurisdiction shall be removable without regard to the citizenship or residence of the parties. 28

U.S.C. § 1441(b).

The procedures for removing an action from state to federal court are set forth in 28 U.S.C. §

1446. The removing defendant must comply with these procedures in order to invoke federal

removal jurisdiction. Removal is accomplished only when the notice of removal is filed with the

district court and filed with the state court in which the action is pending. 28 U.S.C. § 1446(a) and

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(d). A defendant seeking to remove a civil action to federal court must file a notice identifying the

basis for removal “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). Pursuant to 28 U.S.C. § 1447(c), a plaintiff may challenge the

propriety of removal based on procedural defects and move to remand a case to state court within 30

days after the filing of the notice of removal. See, N. Cal. Dist. Council of Laborers v.

Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir. 2003).

The Defendant contends removal is timely as notice was filed within 30 days of ‘filing’ the

summons and complaint. The Plaintiff counters with the argument the notice is untimely because it

was not filed with this Court within 30 days after ‘service of the summons and complaint’ on the

Defendant. Both parties rely upon Murphy Bros., Inc. v. Maced. Pipe Stringing, Inc., 526 U.S. 344

(1999), wherein the Supreme Court addressed the issue of when the 30-day removal period begins to

run. 

In Murphy Brothers, plaintiff filed its complaint in Alabama state court and faxed a “courtesy

copy” of the filed complaint to the defendant. After settlement negotiations failed, the plaintiff

officially served the defendant pursuant to local law. The Supreme Court held that receipt of a

courtesy copy of a complaint, unaccompanied by a summons, does not trigger a defendant's time to

remove under § 1446(b). Id., at 347-48. As the Court explained: “An individual or entity named as

a defendant is not obligated to engage in litigation unless notified of the action, and brought under a

court's authority, by formal process. Accordingly, we hold that a named defendant's time to remove

is triggered by simultaneous service of the summons and complaint, or receipt of the complaint,

‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt

of the complaint unattended by any formal service.” Id. In the course of its opinion, the Court

reviewed the legislative history of § 1446(b), noting, inter alia, that prior to 1949 § 1446(b) provided

that “[t]he petition for removal of a civil action or proceeding may be filed within twenty days after

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26 ORDER - 4

commencement of the action or service of process, whichever is later.” Id. at 351. In 1949,

Congress amended the statute because in states such as New York, most notably, service of the

summons commenced the action, and such service could precede the filing of the complaint. To

ensure that the defendant would have access to the complaint before commencement of the removal

period, Congress in 1949 enacted the current version of § 1446(b).” Id. 

Near the conclusion of its opinion, the Court summarized the four categories of various state

provisions for service of the summons and the filing or service of the complaint. Id., at 254 (citing,

Potter v. McCauley, 186 F.Supp. 146, 149 (D.Md. 1960)). The Court found that in each of the four

categories, the defendant's period for removal will be no less than 30 days from service, and in some

categories, it will be more than 30 days from service, depending on when the complaint is received. 

First, if the summons and complaint are served together, the 30-day period for removal runs at once.

Second, if the defendant is served with the summons but the complaint is furnished to the defendant

sometime after, the period for removal runs from the defendant's receipt of the complaint. Third, if

the defendant is served with the summons and the complaint is filed in court, but under local rules,

service of the complaint is not required, the removal period runs from the date the complaint is made

available through filing. Finally, if the complaint is filed in court prior to any service, the removal

period runs from the service of the summons. Id., at 354.

It appears from the plain language of Murphy Brothers, that the instant action falls within the

first category. The summons and complaint were served together and the 30-day period for removal

runs a once. Accordingly, Allied Van Lines’ notice of removal would be untimely.

Defendant, nonetheless contends that removal was timely because there was no lawsuit to

remove within 30 days of the date of the service of the summons and complaint. Defendant removed

the action within 30 days of the filing of the complaint with the state court. Defendant assets that

without prior filing with the court, Allied Van Lines did not receive a summons or complaint

‘brought under any court’s authority.’ Defendant contends that the unfiled summons and complaint

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simply did not constitute ‘pleadings’ within the meaning of the removal statute. Allied Van Lines

mere receipt of an un-filed ‘summons’ and ‘complaint’ can not trigger its time to remove the matter

to federal court because such a ‘complaint’ or ‘summons’ is a legal fiction since it is not brought

under a court’s authority and there is not a civil action to remove.

Defendant’s argument finds some support in the legislative history of the 1949 amendments

to 28 U.S.C. § 1446(b). As noted in Murphy Brothers, “In some States suits are begun by the

service of a summons or other process without the necessity of filing any pleading until later. As the

section now stands, this places the defendant in the position of having to take steps to remove a suit

to Federal court before he knows what the suit is about. As said section is herein proposed to be

rewritten, a defendant is not required to file his petition for removal until 20 days [changed to 30

days] after he has received (or it has been made available to him) a copy of the initial pleading filed

by the plaintiff setting forth the claim upon which the suit is based and the relief prayed for. It is

believed that this will meet the varying conditions of practice in all the States.” Id., at 352 (quoting

S.Rep. No. 303, 81st Cong., 1st Sess., 6 (1949)).

This language suggests that the Congress assumed that a complaint is always filed prior to

service of the complaint on the defendant. Equating filing of a complaint with commencement is the

norm in civil practice. The general federal rule is that a lawsuit is commenced at a discrete moment

in time: the filing of the original complaint in a court of competent jurisdiction. Bush v.

Cheaptickets, Inc., 425 F.3d 683, 687 (9th Cir. 2005). Such is not the case in Washington.

 A party may not remove a case to federal court before it has commenced in state court. Id.,

at 686. The federal court must honor state court rules governing the commencement of civil actions

when an action is first brought in state court and then removed to federal court. Id., at 686, 688;

Cannon v. Kroger Co., 837 F.2d 660, 664 (4th Cir. 1988). Under Washington law, a civil action is

commenced by service of a summons and complaint or by filing a complaint. RCW 4.28.020;

Washington Superior Court Civil Rule 3(a); Seattle Seahawks, Inc. v. King County, 128 Wn.2d 915,

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26 ORDER - 6

917, 913 P.2d 375, 376 (1996). Once an action is commenced by either service of summons and

complaint or filing, the court is deemed to have acquired jurisdiction and to have control of all

subsequent proceedings. Id. Thus, Washington law provides that an action is commenced with

service of the summons and complaint. The complaint and summons were served on Allied Van

Lines on November 2, 2005. According to state law this commenced the action and it was subject to

removal. Although not filed with the court, service of the complaint on Defendant is consistent with

the purpose of the 1949 amendments to 28 U.S.C. § 1446(b) of ensuring the defendant has access to

the complaint before commencement of the removal period.

There is nothing in the removal statute that requires a state court filing as a prerequisite to

filing a notice of removal. The notice provision of the removal statute provides that the defendant

shall file with the district court a notice of removal containing a short and plain statement of the

grounds for removal, together with a copy of all process, pleadings, and orders served upon such

defendant in such action. 28 U.S.C. § 1446(a). Promptly after the filing of such notice of removal of

a civil action the defendant shall give written notice thereof to all adverse parties and shall file a copy

of the notice with the clerk of such State court, which shall effect the removal and the State court

shall proceed no further unless and until the case is remanded. 28 U.S.C. § 1446(d).

This Court recognizes the potential difficulty arising where a notice of removal is filed with

the clerk of the state court prior to the plaintiff paying the filing fee and filing the summons and

complaint. Nonetheless, Washington law provides that the state court action has been commenced

and the state court has acquired jurisdiction. 

Washington law permits a defendant to demand the plaintiff file the summons and complaint

with the appropriate state court. Washington Superior Court Civil Rule 3(a) provides that upon

written demand by defendant, the plaintiff instituting the action shall pay the filing fee and file the

summons and complaint within 14 days after service of the demand or the service shall be void.

Nothing in the Washington court rules or the removal statute, 28 U.S.C. § 1446, prohibits a

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26 ORDER - 7

defendant from providing service on the plaintiff a notice of removal together with a written demand

that the summons and complaint be filed with the appropriate state court. Although not necessary to

effectuate removal, use of such a procedure would ensure the state court’s awareness of removal.

With due consideration of the rule that the removal statute is strictly construed against

removal and that any doubts as to the existence of federal jurisdiction require remand, the Court

finds the Defendant’s notice of removal was untimely. 28 U.S.C. § 1446(b) provides the defendant

must file a notice of removal “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.” The receipt of service of summons and the complaint initiates the running of

the 30-day period in which to file notice of removal. Washington law provides that service of the

summons and complaint commences a civil action. Accordingly, Defendant’s notice of removal, filed

after the expiration of 30 days from the date of service of summons and complaint on the Defendant,

is untimely. The Court will grant Plaintiff’s motion for remand to state court.

CONCLUSION

For the reasons set forth above Plaintiff’s Motion for Remand to State Court will be granted.

ACCORDINGLY,

IT IS ORDERED:

Plaintiff’S Motion to Remand to State Court [Dkt. #5] is GRANTED. 

DATED this 1st day of March, 2006.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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