Doshier v. Facebook Inc.

          ORDER

          Kristine G. Baker, United States District Judge

         Before the Court are plaintiffs William F. Doshier and dotStrategy, Co.’s (“dotStrategy”) 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 “Facebook’s Notice of Removal was not filed within the time permitted by the removal statue, and, therefore, was defective.” (Dkt. No. 15, at 1). Defendant Facebook, Inc. (“Facebook”), filed an opposition to the motion to remand and to plaintiffs’ 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 ...