statute requires receipt of complaint and service of summons in order to start the 30-day clock for removal
How later courts described this case
- statute requires receipt of complaint and service of summons in order to start the 30-day clock for removal
Written by the judges who cited it.
The opinion
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
HEALTHCARE FACILITY MANAGEMENT LLC,
d/b/a CommuniCare Family of Companies, Case No. 1:23-cv-247
Plaintiff, Barrett, J.
v. Bowman, M.J.
ARMAN CANDELARIA,1
Defendant.
REPORT AND RECOMMENDATION
This Report and Recommendation addresses a motion to remand currently
pending before this Court. For the reasons stated, the motion to remand this case to state
court should be GRANTED.
I. Procedural Background
Plaintiff Healthcare Facility Management LLC, doing business as CommuniCare
Family of Companies (“CFC”) filed a complaint in the Hamilton County Court of Common
Pleas on October 25, 2022, seeking monetary damages “in excess of $50,000.00” plus
punitive damages, attorney fees, costs and interest, for breach of contract, unjust
enrichment, and fraud against its former employee, Arman Candelaria. Plaintiff alleges
that Defendant violated contractual provisions that required him to work for thirty-six
months in order to pay off a debt based upon immigration costs that CFC paid on his
behalf in connection with his relocation to the United States from the Republic of the
Philippines.
On May 1, 2023, Defendant Candelaria filed a Notice of Removal in this Court. On
Candelaria failed to file his Notice of Removal within thirty (30) days of ascertaining
removability. (Doc. 14).
The presiding district judge has referred this case to the undersigned “to rule upon
all non-dispositive pretrial motions” and “to report to the Court her recommended
disposition of all dispositive pretrial motions.” (Doc. 11). In addition to the motion to
remand,2 the parties have filed several non-dispositive motions: (1) Candelaria’s Motion
to Stay state court proceedings; (2) CFC’s motion to strike a letter filed in state court; and
(3) Candelaria’s motion to consolidate this case with a related case filed in this Court. See
Villarin v. HealthCare Facility Management, LLC, d/b/a CommuniCare Family of
Companies, Case No. 1:23-cv-97-MRB. For the following reasons, the undersigned
recommends granting the motion to remand. A separate order addresses the pending
non-dispositive motions.
II. Analysis
A. The Notice of Removal is Untimely
CFC’s motion to remand was timely filed. See 28 U.S.C. § 1447(c) (stating that a
motion to remand for any defect other than subject matter jurisdiction must be filed within
thirty days of the Notice of Removal). In contrast, CFC argues that Candelaria’s Notice of
Removal was not timely filed. Defendant Candelaria has failed to file any opposition to
Plaintiff’s motion, which is well-taken.
The removing party bears the burden of establishing federal subject matter
2A motion to remand is dispositive. See Vogel v. U.S. Office Products Co., 258 F.3d 509, 517 (6th Cir.
2001).
2
Cir. 2007). Pursuant to the operative removal provision, 28 U.S.C. § 1446(b)(1), “[t]he
notice of removal of a civil action or proceeding shall be filed within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the initial pleading….”
See generally, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 119 S.Ct. 1322, 1324
(1999) (statute requires receipt of complaint and service of summons in order to start the
30-day clock for removal).
Only a few exceptions to the 30-day time limit exist, such as when the existence
of federal jurisdiction is not apparent at the outset of the case. In that instance, 28 U.S.C.
§1446(b)(3) provides: “Except as provided in subsection (c), if the case stated by the
initial pleading is not removable, a notice of removal may be filed within 30 days after
receipt by the defendant… of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is … removable.”
In this case, CFC initiated suit in state court on October 25, 2022; Defendant
acknowledged receipt of service of the complaint on October 31, 2022. (Doc. 1 at PageID
1, ¶ 1). Therefore, so long as this Court’s original jurisdiction was readily ascertainable,
Candelaria was required to file his Notice of Removal not later than November 30, 2022.
See 28 U.S.C. § 1446(b). Instead of removing the case by that deadline, Defendant
litigated the case in state court for six months. He filed his answer to the complaint as well
as a counterclaim on January 10, 2023, submitted a joint discovery plan, attended
conferences in state court, and briefed a motion to stay the state court proceedings. It
was not until May 1, 2023 - five months beyond the expiration of the presumptive thirty-
day deadline - that he filed a Notice of Removal.
3
(Doc. 1 at 2, PageID 2). Under 28 U.S.C. § 1441(a), “any civil action brought in a state
court of which the district courts of the United States have original jurisdiction may be
removed by the defendant or the defendants to the district court of the United States…
where such action is pending.” The Notice asserts the existence of original jurisdiction
based on diversity because the parties are citizens of different states, and “the matter in
controversy exceeds the sum or value of $75,000, exclusive of interests and costs.” 28
U.S.C. § 1332(a). The undersigned finds that diversity jurisdiction exists based upon the
clear allegations contained in the original complaint.
Asserting that his Notice “is filed within one year of the commencement of the State
Court Action,” Defendant claims that it “is timely….pursuant to § 1446(c)(1).” (Doc. 1,
emphasis added). Defendant is misinformed. Although § 1446(c)(1) allows up to one year
for the removal of some cases, it does not apply to this case, where it is readily
ascertainable from the original pleading that the case was removable. In other words,
consistent with § 1446(b)(3), 28 U.S.C. § 1446(c)(1) applies only when a case that is not
initially removable later becomes removable based upon an amended pleading that
includes new grounds for the exercise of diversity jurisdiction. Even then, the Notice of
Removal still must be filed within thirty days of service of the amended pleading. Id.; see
also 28 U.S.C. § 1446(b)(3).
Here, the concurrent existence of federal jurisdiction was evident when this case
was initiated. Contrary to Defendant’s belief, 28 U.S.C. § 1446(c)(1) offers no basis for
extending his 30-day deadline for filing the Notice of Removal. Therefore, his Notice of
Removal was untimely and removal is improper. “Although not jurisdictional, the thirty-
4
Guaranty Nat. Ins. Co., 35 F.Supp.2d 542, 544 (W.D.Mich.1998)
B. The Propriety of Attorney’s Fees for Improper Removal
In addition to seeking remand based upon the procedurally improper removal,
Plaintiff seeks an award of its fees and expenses pursuant to 28 U.S.C. § 1447(c). Such
awards are discretionary. “An order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the
removal.” Id. The undersigned appreciates Plaintiff’s frustration with the two-month delay
occasioned by the improper removal of this case. On the other hand, Defendant
ostensibly proceeds pro se, and alleges in his counterclaim against Plaintiff that he is “of
limited financial means.” (Doc. 3 at 27, ¶ 173, PageID 219).
Notably, however, Defendant’s Answer and Counterclaim admits that he has been
“assisted by volunteer lawyer Felix Vinluan, Esq. of Felix Vinluan, P.C. in the drafting and
preparation of this Answer with Counterclaims.” (Doc. 3 at 1, n.1, PageID 193).3 Mr.
Vinluan was granted pro hac vice status to represent the lead plaintiff in a putative class
action that was filed in this Court on February 17, 2023, Villarin v. Health Care Facility
Mgmt. LLC, Case No. 1:23-cv-97-MRB. But admission pro hac vice is on a case-by-case
basis and Mr. Vinluan has not sought admission to practice in this case.
The possibility that counsel and not the pro se Defendant actually authored the
improper Notice of Removal adds an extra measure of difficulty to the determination of
whether an award of fees is appropriate. On the one hand, the “pro se” Defendant is the
3Plaintiff further states that “Mr. Vinluan volunteers for MEMS (Mission to End Modern Slavery), a New York
City-based non-profit organization.” (Id.)
5
And pro se filings are often afforded an extra measure of liberality, even though pro se
filers remain subject to all applicable civil rules of procedure, including Rule 11, Fed. Civ.
R. P.
On the other hand, if Mr. Vinluan is “ghost-writing” for Defendant, it amounts to a
misrepresentation of who is litigating the case. See Kelly v. First Data Corporation, Case
No: 1:19-cv-372, 2020 WL 419440, at *13 (S.D. Ohio Jan. 27, 2020) (declining to construe
complaint liberally based upon implicit misrepresentation of pro se status); Evangelist v.
Green Tree Servicing, LLC, Case No. 12–15687, 2013 WL 2393142 at *3 (E.D. Mich.
May 31, 2013) (expressing the view that ghostwriting is unethical and should be subject
to serious sanctions).
The federal courts have almost universally condemned ghostwriting. See,
e.g., Duran v. Carris, 238 F.3d 1268, 1272–73 (10th Cir.2001) (finding that
ghostwriting constitutes a “misrepresentation to this court”); Ellis v. Maine,
448 F.2d 1325, 1328 (1st Cir.1971) (“If a brief is prepared in any substantial
part by a member of the bar, it must be signed by him.”); Delso v. Trustees
For Ret. Plan For Hourly Employees of Merck & Co., Inc., Case. No. CIVA
04–3009 AET, 2007 WL 766349 (D.N.J. Mar.6, 2007) (holding that
undisclosed ghostwriting violates several ethics rules and the spirit of
Fed.R.Civ.P. 11); Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884, 887
(D.Kan.1997) (requiring pro se defendant to disclose whether she was
represented by attorney); Laremont–Lopez v. Se. Tidewater Opportunity
Ctr., 968 F.Supp. 1075, 1077 (E.D.Va.1997) (“[T]he Court considers it
improper for lawyers to draft or assist in drafting complaints or other
documents submitted to the Court on behalf of litigants designated as pro
se.”); United States v. Eleven Vehicles, 966 F.Supp. 361, 367
(E.D.Pa.1997) (“Important policy considerations militate against validating
an arrangement wherein a party appears pro se while in reality the party is
receiving legal assistance from a licensed attorney.”); Johnson v. Bd. of
County Commis, 868 F.Supp. 1226, 1232 (D.Colo.1994) (“Having a litigant
appear to be pro se when in truth an attorney is authoring pleadings and
necessarily guiding the course of the litigation with an unseen hand is
ingenuous to say the least; it is far below the level of candor which must be
met by members of the bar.”); In re Brown, 354 B.R. 535, 545
(Bankr.N.D.Okla.2006) (“[I]f an attorney writes a pleading, he or she has a
6
required to play a game of ‘catch-me-if-you-can’ with a ghostwriter. All
counsel owe a duty of candor to every court in which they appear. Inherent
in that duty is the requirement that counsel disclose his or her involvement
in the case.”); In re Mungo, 305 B.R. 762, 767 (Bankr.D.S.C.2003) (“The
act of anonymously drafting pleadings for which a client appears and signs
pro se is often termed ‘ghost-writing.’ ... [T]he Court recognizes the act of
ghost-writing as ... in contravention of the policies and procedures set forth
in ... the Federal Rules of Civil Procedure.”); Ostrovsky v. Monroe (In re
Ellingson), 230 B.R. 426, 435 n. 12 (Bankr.D.Mont.1999) (holding that court
rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee
Opinion 1414, prohibit ghostwriting).
Evangelist, 2013 WL 2393142 at *3. n.6.
The undersigned remains concerned that unseen counsel not admitted to practice
in this district may have been the driving force behind the improper Notice of Removal,
though the evidence remains circumstantial.4 For that reason, the undersigned declines
to recommend the imposition of fees and expenses against the named Defendant.
III. Conclusion and Recommendation
Accordingly, IT IS RECOMMENDED THAT Plaintiff’s motion to remand to state
court (Doc. 14) be GRANTED and that this case be remanded to the Hamilton County
Court of Common Pleas, but that Plaintiff’s request for fees and expenses be DENIED.
s/Stephanie K. Bowman ____
Stephanie K. Bowman
United States Magistrate Judge
4Equally improper Notices of Removal were filed on May 1, 2023 in four other “pro se” cases, including
Case Nos. 1:23-cv-246-MRB-SKB, 1:23-cv-248-MRB-SKB, 1:23-cv-249-MRB-SKB, and 1:23-cv-250-
MRB-SKB. Other virtually identical documents, including motions to consolidate the various cases with
Case No. 1:23-cv-97-MRB, also have been filed in the referenced cases, as well as in related Case No.
1:23-cv-236-MRB-SKB. In the latter case alone, the Defendant timely filed his Notice of Removal within the
requisite 30-day period of service of the initial complaint in state court.
7
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
HEALTHCARE FACILITY MANAGEMENT LLC,
d/b/a CommuniCare Family of Companies, Case No. 1:23-cv-247
Plaintiff, Barrett, J.
Bowman, M.J.
v.
ARMAN CANDELARIA,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
8