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Tatum v. Portfolio Recovery Associates, LLC

United States District Court, M.D. Tennessee, Columbia Division

October 3, 2016

JASON TATUM, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, PAUL EDWIN McLEMORE, and TIM EDINGTON, individually and d/b/a McLEMORE EDINGTON, PLLC, Defendants.

          MEMORANDUM

          WILLIAM J. HAYNES, JR. Senior United States District Judge

         Plaintiff, Jason Tatum, originally filed this action in the Circuit Court for Marshall County, Tennessee against the Defendants: Portfolio Recovery Associates, LLC ("PRA"); Paul Edwin McLemore; and Tim Edington, individually and doing business as McLemore & Edington, PLLC ("M&E"). Plaintiff alleges that Defendants obtained a money judgment against him, and that Defendants subsequently attempted to improperly garnish his wages on multiple occasions. Plaintiff asserts a claim under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, as well as Tennessee state law claims for fraud, wrongful execution and abuse of process, negligence, civil conspiracy, and under the Tennessee Consumer Protection Act.

         On September 12, 2016, Defendant Edington filed a notice of removal to federal court (Docket Entry No. 1), to which Defendants PRA, McLemore, and M&E consented. Id. at 8-9; (Docket Entry No. 5). On September 16, 2016, Defendant McLemore filed an amended notice of removal (Docket Entry No. 8), to which Defendants PRA, Edington, and M&E consented. (Docket Entry No. 8-1). Defendants Edington and McLemore assert federal question jurisdiction on the basis of Plaintiff s FDCPA claim, and supplemental jurisdiction over Plaintiffs state law claims. (Docket Entry No. 1 at ¶¶ 3-4, 8; Docket Entry No. 8 at ¶¶ 3-4, 8).

         Before the Court is Plaintiff s emergency motion to remand (Docket Entry No. 14), arguing that removal to federal court is improper in this action because service was completed on Defendants PRA, McLemore, and Edington more than thirty days prior to filing the notices of removal. Plaintiff also argues that, even if Defendants McLemore and Edington timely filed notices of removal, the Court should nonetheless remand this action because Defendant PRA's right to join in and consent to removal had expired. Finally, Plaintiff argues that the Court should remand this action in deference to the state court's rights and for the convenience of Plaintiff s witnesses. In response (Docket Entry No. 15), Defendants contend that, because Plaintiff did not effect valid service of process on any Defendant, both Defendant Edington's notice of removal and Defendant McLemore's amended notice of removal were timely. Defendants also contend that, even if Defendant Edington's notice of removal was untimely, Defendant McLemore's amended notice of removal was timely because Plaintiff had not properly served him. Finally, Defendants argue that the Defendants PRA, M&E, and Edington retained the right to join and consent to Defendant McLemore's timely removal under the "last-served defendant" rule.

         A civil action filed in state court may be removed to federal court where the action could have been originally brought in federal court. 28 U.S.C. § 1441(a). To remove a civil action to federal court, a defendant must file 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 or defendants in such action." 28 U.S.C. § 1446(a). Plaintiff does not dispute that Defendant McLemore's amended notice of removal complies with § 1446(a), but argues that removal was untimely.

         A defendant must file a notice of removal within the shorter of the following two periods: (1) "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" the action is based; or (2) "within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant." Id. § 1446(b)(1). The Supreme Court has explained 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." Murphy Bros.. Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999).

         Plaintiff argues that, on January 28, 2016, he effected service of process on Defendant McLemore by sending a copy of the summons and complaint via certified mail to 9051 Executive Park Drive, Suite 500, Knoxville, TN 37923-4632, where "an employee" signed the return receipt. (Docket Entry No. 14 at 2). Plaintiff also argues that he made "[s]everal additional attempt[s]" to effect service of process of Defendant McLemore via certified mail to "the address listed with the Tennessee Board of Responsibility, " but that these mailings were "returned as no such address." Id.

         Rule 4(e) of the Federal Rules of Civil Procedure states that, unless otherwise provided by federal law, service may be effected by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to ...

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