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Chandler v. Whiting Oil And Gas Corp.

United States District Court, D. Montana, Billings Division

May 17, 2018

CHAD CHANDLER, Plaintiff,
v.
WHITING OIL AND GAS CORPORATION; PIONEER DRILLING SERVICES, LTD.; and DOES A-Z, Defendants.

          FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

          TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE.

         Before the Court are the following motions: plaintiff Chad Chandler's Motion to Remand (Doc. 5), defendant Pioneer Drilling Services, Ltd.'s (“Pioneer”) Motion to Quash Summons (Doc. 7), and Pioneer's Motion to Set Aside Default (Doc. 9). Having considered the parties' motions, the Court recommends that Plaintiff's Motion to Remand be GRANTED, thereby divesting the Court of jurisdiction to consider Pioneer's motions.

         I. Pertinent Facts

         The following pertinent facts are taken from the parties' pleadings and briefing, and are presumed to be true for the purposes of the instant motions.

         Pioneer's registered agent for service of process in Montana is Capitol Corporate Services (“CCS”). Pioneer's business listing on the website for the Montana Secretary of State provides an address for CCS at 26 West 6th Avenue, Helena, Montana. (Doc. 6-1.) That is the physical address of the Smith Law Firm, PC (“Smith”). (Doc. 13-2 at 2, ¶ 2.) According to Smith employee Michelle Van Nice (“Van Nice”), Smith “has been retained by…CCS, as well as other agencies, to receive service of process and other legal documents that are served on them as registered agents in the state of Montana.” (Id.) One of the other registered agents that has retained Smith is Corporation Service Company (“CSC”). (Id.)

         Van Nice's “job duties include receiving service of process on behalf of corporations and other entities that have CSC or CCS as their registered agent….” (Id. at ¶ 3.) “It is [Smith's] regular practice when a process server presents documents for service to have [the process server] declare which agent [the process server is] serving and to write the name of such agent upon the papers [the process server] is serving.” (Id. at ¶ 4.)

         On October 28, 2016, process server Brian Mook (“Mook”) delivered to Van Nice, at 26 West 6th Avenue, Helena, Montana, a summons and Plaintiff's Complaint and Demand for Jury Trial. (Doc. 6-2.) Pioneer was a named defendant on the complaint, and the summons was directed to Pioneer. (Doc. 13-7 at 4-6.) When Mook served a copy of the summons and complaint, he was asked by Van Nice to write the name of the registered agent being served. (Doc. 13-7 at 3.) Mook handwrote “CSC 10/28 11:50” on the summons. (Doc. 13-7.) Van Nice forward the documents to CSC based on Mook's notation. (Doc. 13-2 at 2, ¶ 6.)

         Mook then drafted a corresponding “Proof of Service” indicating that he “served [the summons and complaint] on Michelle VanNice [sic], legal assistant for Capitol Corporate Service, Inc [sic], r/a for Pioneer Drilling Services at 26 W 6th Ave, Helena, MT.” (Doc. 6-2.)

         On October 31, 2016, CSC sent a letter to Plaintiff's counsel entitled “Rejection of Service of Process” (the “Rejection Letter”). (Doc. 13-4.) The Rejection Letter identifies Pioneer as the party that was served, and notes the instant lawsuit as it was captioned prior to removal. (Id.) The Rejection Letter explains that service of process could not be forward to Pioneer and provides the following reason: “Because two or more companies can have very similar names, the name of the company to which service of process is directed MUST BE IDENTICAL to the company on file with the Secretary of State or other appropriate state agency.” (Id.) Plaintiff apparently made no additional effort to serve Pioneer.

         On August 14, 2017, Plaintiff filed in the Montana Seventh Judicial District Court, Richland County a Praecipe for Entry of Default of Defendant Pioneer Drillings Services, alleging that Pioneer had failed to appear despite having been served, and that default judgment was proper pursuant to Mont. R. Civ. P. 55(a). (Doc. 13-31 at 7-8.) Default was entered accordingly. (Doc. 10 at 6.) On August 14, 2017, counsel for defendant Whiting Oil and Gas Corporation (“Whiting”) emailed Pioneer's counsel to advise of the impending default. (Doc. 13-1 at 6.) Pioneer claims that this email was the first notice it received of Plaintiff's lawsuit. (Doc. 13-6 at 2-4.) Pioneer removed the case to this Court within 30 days of its receipt of the email from Whiting's counsel. (Doc. 1.)

         II. Legal Standard

         Removal of a civil action from state court to federal court is appropriate if the action originally could have been filed in federal court. 28 U.S.C. § 1441; Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The “removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Courts must “strictly construe the removal statute against removal jurisdiction” and must reject federal jurisdiction “if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citations omitted). There is a “strong presumption” against removal, and the defendant has the burden to establish that removal is proper. Id. at 566-67.

         III. Discussion

         A. Plaintiff ...


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