United States District Court, District of Columbia
N. McFADDEN UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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.
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). Regardless of when First Coast alleges
that it received the Complaint,  service was properly
effectuated by at latest November 22, 2017, when the return
receipt for the certified mailing was filed. First
Coast's deadline to remove the case to federal court was
30 days after that. See 28 U.S.C. § 1446. Its
non-compliance with this statutory requirement, which must be
strictly construed, Williams, 984 F.Supp. at 29,
requires this matter be remanded back to the Superior Court
for the District of Columbia.
foregoing reasons, it is
that the Plaintiff s Motion to Remand is GRANTED;
that this matter is REMANDED to the Superior Court for the
District of Columbia; and
that the Defendant's Motion to Dismiss for Lack of
Jurisdiction and Failure to State a Claim and Motion to
Compel are DENIED as moot.