FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S OBJECTION TO REMOVAL AND MOTION FOR REMAND
TIMOTHY J. CAVAN, Magistrate Judge.
Plaintiff Angela Lopez ("Plaintiff") initiated this negligence action in the Montana Thirteenth Judicial District Court, Yellowstone County, Montana on January 14, 2016. (Doc. 3.) Defendants Extended Stay America # 7065 ESA P Portfolio, LLC, ESA P Portfolio Operating Lessee, LLC, formerly known as ESA P Portfolio Operating Lessee, Inc. as subsidiaries of ESH Hospitality Holdings, LLC, ESA Management LLC, successor in interest to HVM, LLC John Doe, and Extended Stay America, Inc. (collectively "Defendants") filed a Notice of Removal on October 12, 2016, on the basis of diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1.) Judge Watters has referred the case to the undersigned under 28 U.S.C. § 636(b)(1)(B). (Docs. 8, 9.) Presently before the Court is Plaintiff's Objection to Removal and Motion for Remand. (Doc. 6.) Defendants have filed a response. (Doc. 7.) Plaintiff did not file a reply, and the time for doing so has expired. Therefore, this motion is fully briefed and ripe for the Court's review.
Having considered the parties' submissions, the Court
Plaintiff alleges that on January 16 and 17, 2013, while she was staying at Defendants' hotel property, Extended Stay America # 7065, two individuals posing as law enforcement personnel were provided with her room number and key. (Doc. 3 at ¶¶ 1, 6.) As a result, she was kidnapped and assaulted, and her companion, DeJuan Laster, was kidnapped and murdered. (Id. at ¶¶ 11-12.)
Plaintiff filed this action in state court on January 14, 2016. (Doc. 3.) On September 14, 2016, a summons was issued by the Clerk of Court for Yellowstone County, Montana. (Doc. 1-2.) On September 19, 2016, defense counsel accepted service on behalf of Defendants via a Notice and Acknowledgment of Receipt of Summons and Complaint. (Doc. 1-3.) On October 12, 2016, Defendants removed the case to this Court. (Doc. 1.)
Plaintiff claims that Defendants were aware of this action before the Summons and Complaint were officially served. (Doc. 6.) Plaintiff contends that on June 2, 2016, Defendants were made aware of the Complaint during the course of mediation in a companion case brought by the estate of DeJuan Laster. (Id.) Plaintiff also contends counsel for Defendants obtained a copy of the Complaint via email from the state court's clerk's office on or about June 2, 2016. (Id.)
Plaintiff concedes that there is a basis for diversity jurisdiction in this action because there is complete diversity of citizenship and the requisite amount in controversy. (Doc. 6.) However, Plaintiff argues the Court should remand this action to state court because the Notice of Removal was untimely filed based on a "literal reading" of 28 U.S.C. § 1446. (Id.) Plaintiff contends Defendants were required to remove the case within 30 days of June 2, 2016. (Id.) Defendants counter that Plaintiff's argument has been squarely rejected by the United States Supreme Court.
28 U.S.C. § 1446(b) provides:
28 U.S.C. § 1446(b).
In Murphy Bros. Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), the United States Supreme Court held that service of process — and not actual notice — is what triggers the 30 day removal period under § 1446(b). The Court explained:
Murphy Bros. Inc., 526 U.S. at 347-348 (emphasis added). See also Quality Loan Service Corp. v. 24702 Pallas Way, Mission Viejo, CA, 635 F.3d 1128, 1133 (9th Cir. 2011) (stating "actual notice of the action is insufficient; rather, the defendant must be `notified of the action, and brought under a court's authority, by formal process,' before the removal period begins to run").
Under Montana law, service is deemed complete on the date the notice and acknowledgment is signed and dated by the defendant. Mont. R. Civ. P. 4(d)(3)(E). Here, Defendants signed the Notice and Acknowledgment of Receipt of Summons and Complaint on September 19, 2016. (Doc. 1-3.) Removal from the state court occurred 23 days later, on October 12, 2016. Accordingly, the action was timely removed.
Based on the foregoing,