United States District Court, E.D. Arkansas, Western Division
WILLIAM F. DOSHIER and DOTSTRATEGY, CO. PLAINTIFFS
v.
FACEBOOK, INC. DEFENDANT
ORDER
Kristine G. Baker, United States District Judge
Before
the Court are plaintiffs William F. Doshier and dotStrategy,
Co.âs (âdotStrategyâ) motion to remand and motion for leave
to file reply in support of their motion to remand (Dkt. Nos.
15, 22). Mr. Doshier and dotStrategy contend that âFacebookâs
Notice of Removal was not filed within the time permitted by
the removal statue, and, therefore, was defective.â (Dkt. No.
15, at 1). Defendant Facebook, Inc. (âFacebookâ), filed an
opposition to the motion to remand and to plaintiffsâ request
to file a reply in support of their motion to remand (Dkt.
Nos. 21, 25).
The
Court grants Mr. Doshier and dotStrategy’s motion for
leave to file reply in support of their motion to remand
(Dkt. No. 22). The Court directs Mr. Doshier and dotStrategy
to file their reply in support of their motion to remand
within 10 days from the entry of this Order. For purposes of
resolving the pending motion to remand, the Court has
considered the proposed reply. For the following reasons, the
Court denies the motion to remand (Dkt. No. 15).
Also
pending before the Court is plaintiffs’ motion for
default judgment (Dkt. No. 3). Facebook filed a response in
opposition to the motion (Dkt. No. 9), and plaintiffs filed a
reply (Dkt. No. 33). For the following reasons, the Court
denies plaintiffs’ motion for default judgment (Dkt.
No. 3).
I.
Overview Of Arguments
Facebook
removed this case from Faulkner County, Arkansas, Circuit
Court on September 4, 2018 (Dkt. No. 1). Before removal, Mr.
Doshier and dotStrategy filed a motion for default judgment
(Dkt. No. 3). Facebook responded in opposition to the motion
for default judgment (Dkt. No. 9). Mr. Doshier and
dotStrategy also filed a motion to remand, contending that
Facebook did not timely remove this matter (Dkt. No. 15). The
court’s removal jurisdiction is strictly construed, and
all doubts are resolved in favor of remand. Dahl v. R.J.
Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007).
By
prior Order, this Court set forth the procedural history of
the case and ruled on several pending motions (Dkt. No. 31).
As pertinent to the pending motions, in its prior Order, the
Court examined the issues surrounding service of process and
denied Mr. Doshier and dotStategy’s request and
supplemental request for jurisdictional discovery. At the
time, plaintiffs’ motion for default judgment and
motion to remand were not yet ripe, according to the parties.
Those motions are now ripe for the Court’s
consideration.
Mr.
Doshier and dotStrategy contend that Facebook was properly
served on July 16, 2018. Facebook filed a notice of removal
on September 4, 2018. Therefore, Mr. Doshier and dotStrategy
allege the removal was not filed within the 30-day time limit
set forth in 28 U.S.C. § 1446. For the following
reasons, the Court concludes that plaintiffs did not effect
service on Facebook on July 16, 2018. Further, the Court
concludes that Facebook timely and properly filed its notice
of removal.
Further,
because plaintiffs contend that Facebook was properly served
on July 16, 2018, plaintiffs contend that Facebook did not
file a timely answer to plaintiffs’ complaint and that,
therefore, plaintiffs are entitled to default judgment
against Facebook (Dkt. No. 3, at 12). The Court denies
plaintiffs’ motion for default judgment (Dkt. No. 3).
III.
Service Of Process
As an
initial matter, Mr. Doshier and dotStrategy’s motion to
remand and motion for default judgment depend on their
arguments regarding whether Facebook was properly served on
July 16, 2018. This Court examined these argument when
analyzing and rejecting Mr. Doshier and dotStrategy’s
request and supplemental request for jurisdictional
discovery. Having examined the record before the Court,
including all filings related to this matter, the Court
determines that service on Facebook was not effective on July
16, 2018.
A.
Factual Background Related To Service
The
Court has reviewed the full record in making a determination
on this matter. Mr. Doshier and dotStrategy have presented an
affidavit from Edwina Keith, assistant for Mr. Doshier and
dotStrategy’s counsel, regarding service of process
(Dkt. No. 3, Ex. G). Ms. Keith states that she enclosed the
summons and complaint into a certified letter addressed to
Mark Zuckerberg, Chief Executive Officer of Facebook, via
certified mail, restricted delivery with a Return Receipt
requested (Id., ¶¶ 1-2). Ms. Keith also
states that she affixed a Return Receipt Green Card to the
back of the envelope (Id., ¶ 6). When the
Return Receipt Green Card was not returned, Ms. Keith
requested and obtained a “Proof of Delivery
Letter” via e-mail from the USPS, on August 13, 2018
(Id., ¶ 12). There is no record evidence to
dispute Facebook’s representation that the Return
Receipt Green Card remains attached to the package and has
not been signed or returned to counsel for Mr. Doshier and
dotStrategy (Dkt. No. 9-2, Ex. 1).
Facebook
presents a declaration from Marshall Ney, partner at the law
firm Friday, Eldredge & Clark LLP and counsel of record
for Facebook (Dkt. No. 9, Ex. A). According to Mr. Ney,
Facebook learned about the current action through a
third-party docket monitoring service (Id., ¶
3). Mr. Ney states that, after Facebook learned about this
action, he and Facebook’s in-house counsel regularly
checked for receipt of process at Facebook (Id.,
¶¶ 5-6). On August 29, 2018, Mr. Ney and Facebook
learned that Mr. Doshier and dotStrategy filed on August 27,
2018, an affidavit of service and a motion for default
judgment, in Faulkner County, Arkansas, Circuit Court
(Id., ¶ 8).
On
August 13, 2018, the USPS sent a letter via e-mail to counsel
for Mr. Doshier and dotStrategy in response to a request for
proof of delivery on the package (Dkt. No. 18-4). In the
letter, the USPS states that the package was
“delivered, to agent” on July 16, 2018, at 8:23
a.m. by certified mail (Id.). The USPS letter also
includes an image of the recipient’s signature that
indicates “LS” or “Lucus Simons”
signed for the package (Id.). Mr. Doshier and
dotStrategy have also provided a copy of the package tracking
information that states the package was “delivered, to
agent” on July 16, 2018, at 8:23 a.m. (Dkt. No. 3, Ex.
D).
Facebook
has presented a declaration from Juan Cortes, the director of
campus distribution for Millennium Group (Dkt. No. 9, Ex. B).
Mr. Cortes states that he is not aware of an individual by
the name of “Lucus Simons, ” but Lucas Symons is
an employee of Millennium Group and works on Mr.
Cortes’ team (Id., ¶¶ 4-5).
According to Mr. Cortes, Mr. Symons collects Facebook’s
mail delivered to the local USPS location on a daily basis
and brings that mail to Facebook for processing
(Id., ¶ 5). Mr. Cortes further states that Mr.
Symons is not an officer or managing or general agent of
Facebook (Id., ¶ 6). According to Mr. Cortes,
Mr. Cortes and Mr. Symons have not been authorized, in
writing or in any other form, to accept service of process on
behalf of Facebook or Mark Zuckerberg (Id., ¶
7). Further, Mr. Cortes and Mr. Symons are not on a USPS
“Standing Delivery Order” form authorizing such
person to accept Restricted Delivery U.S. Mail on behalf of
Mark Zuckerberg, or on behalf of any other Facebook executive
(Id., ¶ 8). Mr. Symons also has not been
authorized, in writing or in any other form, to accept
Restricted Delivery U.S. Mail on behalf of Mark Zuckerberg,
or on behalf of any other Facebook executive (Id.,
¶ 9).
While
this dispute was pending, Mr. Doshier and dotStrategy
submitted email correspondence dated September 10, 2018,
between their counsel’s office and the USPS (Dkt. No.
18-2). In that correspondence, a USPS representative states
that the electronic signature image included in an August 13,
2018, letter from the USPS and indicating a parcel with
tracking number 7014 2870 0000 5130 5595 was delivered on
July 16, 2018, at 8:23 a.m. is a signature from a USPS Form
3849 (Id.).
According
to Mr. Cortes’ supplemental declaration, he has
personal knowledge of who, if anyone, is authorized to accept
Restricted Delivery U.S. Mail on behalf of Facebook or Mr.
Zuckerberg (Dkt. No. 19-2, ¶ 2). Mr. Cortes avers that,
after learning of the September 10, 2018, correspondence, he
went to the USPS office in Menlo Park, California, “to
obtain copies of any documents that provide written
authorization for any individual to accept Restricted
Delivery U.S. Mail on behalf of Mark Zuckerberg or on behalf
of Facebook.” (Dkt. No. 21, Ex. A, ¶ 4). Mr.
Cortes states that the USPS “has no written
authorization of any kind . . . on file authorizing any
individual to accept Restricted Delivery U.S. Mail on behalf
of Mark Zuckerberg or on behalf of Facebook.”
(Id., ¶ 5). Mr. Cortes further states that the
USPS gave him the entire record of the specific Form 3849 at
issue in this case, and it only contains a scanned image of
the delivery section of the form (Id., ¶ 7).
The scanned image that the USPS provided to Mr. Cortes is
identical to the one attached to the letter sent to counsel
for plaintiffs on August 13, 2018 (Id., ¶ 7).
Mr. Cortes states that the USPS “did not have the
original executed Form 3849” that is at issue in this
case when he visited the Post Office (Id., ¶
8). Mr. Cortes further states that “the Post Office
retains original executed Forms 3849 for only a short period
of time following the signature image being electronically
scanned.” (Id.).
B.
Analysis Of Service Of Process
A
federal court lacks personal jurisdiction over a defendant if
service of process is insufficient. Omni Capital
Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104,
(1987). “[S]ervice of summons is the procedure by which
a court having venue and jurisdiction of the subject matter
of the suit asserts jurisdiction over the person of the ...