1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

QUINN EMANUEL URQUHART & SULLIVAN, LLP, Plainti ff

, v. Civil Action No. 1:19-cv-01331 (CJN)
ADELA PATRICIA ROSENTHALHILDALGO, et al.,
De f

endants

.

MEMORANDUM OPINION Plaintiff Quinn Emanuel Urquhart & Sullivan, LLP filed this ci vil action in the Superior Court of the District of Colum bia seeking unpaid legal fees and expenses. See generally Notice of Removal, Ex. A, D.C. Super . Compl., ECF No. 1-1. Quinn serv ed Defendants Bus-Comm, Inc. and Crediflash, LLC without i ssue, Notice of Removal, Ex. A at 53–54, ECF No. 1, and those two Defendants remove d the case to this Court, see generally Notice of Removal

. The six remaining Defendants (collectiv ely, the “Additional Defendants” ), however, challenge the sufficiency of service as to them. See generally Defs.’ Renewed Mot. to Quash Service of Process (“Defs.’ Mot. to Qu ash”), ECF No. 21. Quinn, in turn, seeks remand back to D.C. Superior Court because the Noti ce of Removal was not unanimous. See generally Mot. for Remand, ECF No. 22. For the reasons that follow, the Court gra nts the Additiona l Defendants’ Motion to Quash and, as a result , denies Quinn’s Motion for Rem and.2 Background On April 8, 2019, Quinn served Defendants Bus-Comm and Credifl ash with the Summons and Complaint. Notice of Removal, Ex. A at 53–54. App roximately two weeks later, Quinn held a call with Diaz, Reus & Targ LLP (“Diaz Reus”), a l aw firm that previously had represented at least some of the Defendants, to discuss the cas e and service on the Additional Defendants. Pl.’s Opp’n to Mot. t o Quash (“Pl.’s Opp’n”), Ex. A at 3, ECF No. 25-1. 1 During that call, Diaz Reus agreed to accept service on behalf of the Additional Defendants in exchange for a thirty-day extension for the Additional Defendants to res pond to the Complaint. Id. at 2–3. Thereafter, Quinn and Diaz Reus exchanged emails in which both firms expressly confirmed their prior discussion. Id. On April 29, 2019, Quinn served Diaz Reus on behalf of the Additional Defendants, relying on Diaz Reus’s agreement to acce pt service and presumably believing that Diaz Reus act ually had authority to do so. See Mot. for Remand, Ex. A (“D.C. Superior Docket”), at 3–4, ECF No. 22-1. About one month later, the Additi onal Defendants moved in D.C. Superior Court to quash service, contending that Di az Reus had lacked authority t o accept service on their behalf.
Id. at 4. Because that motion was filed after Quinn’s Notice of R emoval, which had been filed on May 23, 2019, the D.C. Superior Court denied the Motion as m oot. Id. The Additional Defendants renewed their Motion to Quash in this Court on June 6, 2019, arguing again that Diaz Reus lacked authority to accept service on their behalf. See generally Defs.’ Mot. to Quash. The same day, Quinn filed its Motion for Remand, arguing that, beca use the Additional Defendants

1 The Additional Defendants comprise of Adela Patricia Rosenthal -Hidalgo, Cable Color, S.D. de C.V., Carlos Jose Rosenthal-H idalgo, Cesar Augusto Rosenthal -Hidalgo, Fondo de Inversiones, S.A., and Prestadito de Costa Rica, S.A.3 had been served and had not joined the Notice of Removal, reman d is required by 28 U.S.C. §§ 1455(b)(2) and 1447(c). See generally Mot. for Remand. Analysis In their Motion to Quash, the A dditional Defendants argue that although Diaz Reus represented to Quinn that it c ould accept service on behalf of the Additional Defendants, in fact service was not effective because Diaz Reus was never “authoriz ed by the [Additional] Defendants to accept service” as their agent. Mem. in Supp. of Defs.’ Renewed Mot. to Quash at 1 (“Defs.’ Mem.”), ECF No. 21; see also Defs.’ Mot. to Quash at 1 (citing Fed. R. Civ. P. 12(b)(2), (b)(5)). In its Moti on to Remand, Quinn argues that the Additional Defendants were properly served and that remand is required by 28 U.S.C. §§ 145 5(b)(2) and 1447(c) “because not all properly joined and serve d Defendants joined in or othe rwise consented to Defendants Bus-Comm Inc.’s and Crediflash, LLC’s Notice of Removal.” Mot. for Remand at 1. Both Motions thus require the Court to determine whether service on the Additional Defendants was effective. “Before a federal court may exercise personal jurisdiction ove r a defendant, the procedural requirement of servi ce of summons must be satisfied. ” Roland v. Branch Banking & Tr. Corp. , 149 F. Supp. 3d 61, 64 (D.D.C. 2015) (quoting Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co. , 484 U.S. 97, 104 (1987)). The D.C. Superior Court Civil Rule s permit service on an individual or corporate defe ndant by delivering a copy of th e summons and complaint to an “agent authorized by appointment or by law to receive service o f process.” D.C. Super. Ct. R. Civ. P. 4(e)(2)(C), (h)(1)(B). 2 “The rule is clear that it must appear that any agent who acc epts

2 Because the Additional Defendants challenge service that occur red prior to removal, D.C. law applies. E.g. , Magowan v. Lowery , 166 F. Supp. 3d 39, 65 (D.D.C. 2016) (“Since this action was commenced in D.C. Superior Court, the sufficiency of process is determined by District of4 service must be shown to have bee n authorized to bind his princ ipal by the acceptance of process and, further, that the authority to accept such service cannot be shown by the extra-judicial statements of the attorney.” McLaughlin v. Fidelity Sec. Life Ins. , 667 A.2d 105, 106 (D.C. 1995) (quoting Schwarz v. Thomas , 222 F.2d 305, 308 (D.C. Cir. 1955)); see also United States v. Ziegler Bolt & Parts Co. , 111 F.3d 878, 881 (Fed. Cir. 1997) (“The mere relationship be tween a defendant and his attorney doe s not, in itself convey authori ty to accept service.” (citations omitted)). Quinn asserts that it served the Additional Defendants through their attorney at Diaz Reus. Not surprisingly, Qui nn relies on its April 26, 2019 tel econference with Diaz Reus, together with the emails confirming that teleconference, as pro of that Diaz Reus was authorized to accept service on behalf of the Additional Defendants. 3 See Pl.’s Opp’n at 6–7. The Additional Defendants do not contest that Diaz Reus repres ented to Quinn that it would accept service for the Additional Defendants. Instead, t he Additional Defendants have submitted a declaration from Cesar Augusto Rosenthal-Hidalgo, w ho is one of the Additional Defendants and who is alleged t o either partially or entirely o wn, or to control, the various corporate Defendants, see D.C. Super. Compl. ¶¶ 3, 29–31. Acco rding to Rosenthal-Hidal go, he “communicated with the attorn eys at [Diaz Reus] . . . on behalf of [himself] and the [Additional Defendants]” in late April and early May 2019 and “ never authorized [ Diaz Reus ] or any of its representatives to accept service in this matter, directly or indirectly .” Decl. of Cesar Augusto Columbia law.” (citation omitted)); see also 4A Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure § 1082 (4th ed. 2019) (“In determining the validity of service in the state c ourt prior to removal, a fede ral court must apply the law of the state under which the service was made.”).

3 Diaz Reus also stated in an email to the Additional Defendants that it had “agreed to accept service on behalf of [the Additi onal Defendants] in exchange fo r Quinn’s agreement for a [thirty-]day extension to re spond.” Decl. of Cesar Augusto Ros enthal-Hidalgo, Ex. B at 8.5 Rosenthal-Hidalgo (“Rosentha l-Hidalgo Decl.”) ¶ 1, 3 (emphasis added), ECF No. 21-6. The Additional Defendants thus argue that, because they never gave Diaz Reus authority to accept service for them, service on Diaz Reus was improper. Defs.’ Me m. at 4–5. Quinn does not dispute that servi ce on the Additional Defendan ts would be ineffective if Diaz Reus lacked authority to a ccept it. Inst ead, Quinn points to emails included with the Rosenthal-Hidalgo Declaration to a rgue that, contrary to that D eclaration, the Additional Defendants actually had authorized Diaz Reus to accept service on their behalf. E.g. , Pl.’s Reply in Supp. of Mot. for Remand at 3–5, ECF. No. 27. In particular , prior to the April 26 call between Quinn and Diaz Reus, Diaz Reus contacted the Additional Defendants to confirm that the firm still represented them in Quinn’s newly filed suit, an d Rosenthal-Hidalgo responded that Diaz Reus did in fact represent the Additional Defendants. Ros enthal-Hidalgo Decl., Ex. A at 5–6, ECF No. 21-6. This email ex change, Quinn argues, demon strates that Diaz Reus had actual authority to accept servi ce for the Additional Defendant s. See Pl.’s Opp’n at 4–7. The problem with this argument is that nothing in those emails says anything about service, including whether Diaz Reus was authorized to accept s ervice on behalf of the Additional Defendants. Quinn is therefore left to rely on the fact that the Add itional Defendants’ then-lawyers agreed to accept service on behalf of the Addition al Defendants. But the D.C. Court of Appeals has held that statements by counsel are insuff icient to establish that counsel had actual authority to accept service. See, e.g. , McLaughlin , 667 A.2d at 106 (“[T]he authority to accept . . . service cannot be shown by the extra-judicial s tatements of the attorney.” (citation omitted)). 4

4 Even though the D.C. Court of App eals has recognized the doctr ine of apparent authority in other attorney-client situations, see, e.g. , Makins v. District of Columbia , 861 A.2d 590, 593–94 (D.C. 2004) (ability of an attorney to enter a settlement agree ment), it appears not to recognize6 The Rosenthal-Hidalgo Declaration—which states expressly that Diaz Reus was not an agent appointed to receive serv ice of process on behalf of the Additional Defendants, see Rosenthal-Hidalgo Decl. ¶ 3—is therefore unreb utted. As a resu lt, Quinn has not demonstrated that Diaz Reus had either actua l or implied authority to accept service on behalf of the Additional Defendants. See, e.g. , Pollard v. District of Columbia , 285 F.R.D. 125, 128 (D.D.C. 2012) (“‘[A]lthough authority to accept process need not be explicit, it must either be express or implied from the type of relati onship that has been established between the defendant and the alleged agent’; put differently, there must be a ‘factual basis for believing that an appointment’ to receive process has been made.” (quoting Charles A. Wright & Ar thur R. Miller, Federal
Practice and Procedure § 1097 (3d ed. 2002)). 5 And because Diaz Reus lacked authority to

apparent authority in the contex t of accepting service of proce ss, McLaughlin , 667 A.2d at 106 (“[T]he mere appearance of author ity [to accept service] is ins ufficient.” (footnote omitted)). The basis for and desirability of this is not at all apparent, but the McLaughlin rule plainly applies here.

5 Following an initial review of t he Parties’ briefs, accompanyi ng documentary evidence, and a hearing on October 1, 2019, the Cour t determined that it needed further information to resolve the question of whether Diaz Re us was actually authorized to ac cept service on behalf of the Additional Defendants, and thus or dered the Parties to “meet an d confer to discuss the exchange and presentation of additional evid ence to the Court regarding Diaz Reus’s authority to accept service on behalf of the Additiona l Defendants.” Order (Oct. 2 3, 2019) at 3, ECF No. 32. It further ordered that the Parties “file a Joint Status Report . . . setting forth a joi nt proposal—or in the event they are unable to rea ch agreement, their respective proposals—regarding how this case should proceed.” Id. Unable to reach agreement, the Parties each filed their own s tatus reports. The Additional Defendants rested on the record before the Court and stated that they were “not aware of any additional evidence [Quinn] intends to p resent at this time.” Defs.’ Court-Ordered Status Report (Nov. 6, 2019) at 1, ECF No. 33. Qu inn noted that it was attempting to gather further evide nce from Diaz Reus. Status R eport (Nov. 7, 2019) at 1–2, ECF No. 34. The Court therefore permitted Quinn additional time to submit additional evidence, and on November 15, 2019, Quinn notified t he Court that it would no t be lodging any additional evidence from Diaz Reus. N otice to Court (Nov. 15, 2019) at 1– 2, ECF. No. 35.7 accept service on behalf of the Additional Defendants, service on Diaz Reus was insufficient under D.C. Superior Court Rule of Civil Procedure 4(e)(2)(C).
Conclusion Quinn has not established that the Additional Defendants autho rized Diaz Reus to receive service on their behalf. For that reason, the Court concludes that Quinn has failed to make proper service on the Additional Defendants, and as a result, the Additional Defendants’ Motion to Quash is GRANTED and Quinn’s Motion for Remand is DENIED . An order will be entered contemporaneously with this Memorandum Opinion.

DATE: December 9, 2019 CARL J. NICHOLS United States District Judge