Fox v. Chipotle Mexican Grill, Inc.
| Decision Date | 23 February 2021 |
| Docket Number | Civil Action No. 2:20-cv-1448 |
| Parties | MEGAN FOX, et al., Plaintiff, v. CHIPOTLE MEXICAN GRILL, INC. trading and doing business as CHIPOTLE, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Hon. William S. Stickman IV
On September 25, 2020, Defendant Chipotle Mexican Grill, Inc., t/d/b/a Chipotle, ("Chipotle") removed this case from the Court of Common Pleas of Allegheny County to this Court. (ECF No. 1). Plaintiffs Megan Fox and Bridget McMahon moved to Remand to State Court (ECF No. 3) claiming Chipotle's Notice of Removal was untimely. Plaintiffs sought expedited discovery to determine the identity of the person who signed the certified mail receipt and whether that person could sign for service on behalf of Chipotle. (ECF No. 20). The Court granted expedited jurisdictional discovery. (ECF No. 29). Two issues remain: (1) whether Chipotle's removal to federal court was timely and (2) whether the Court has subject matter jurisdiction over the matter.
Plaintiffs filed a Class Action Complaint against Chipotle in the Court of Common Pleas of Allegheny County of Pennsylvania. (ECF No. 4, p. 1). The complaint alleges that Chipotle violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Cons. Stat. § 201-1 (2020), and converted funds belonging to Class Members by shortchanging customers who paid for goods and services with cash. (Id.). Class Members include "all individuals who, on or after January 1, 2020, purchased any item(s) from a Chipotle fast casual restaurant in Pennsylvania using cash, and were given change of less than the difference between the amount of cash tendered and the purchase price of the item(s)." (ECF No. 1-1, ¶ 35).
Chipotle is a Delaware corporation with its principal place of business in California. (ECF No. 18, p. 2). On August 27, 2020, at or around 11:15 a.m., an Allegheny County Deputy Sheriff served Chipotle with process at its 211 Forbes Avenue, Pittsburgh, Pennsylvania 15222 store on an adult agent or person in charge. (Id. at 2-3). Plaintiffs and Chipotle do not dispute the validity of this service. (Id. at 2); (ECF No. 35, p. 2).
Plaintiffs also claimed to have served Chipotle at its corporate headquarters in Newport Beach, California by certified mail. (ECF No. 3-1). Plaintiffs filed a second return of service in the State Court Action on September 28, 2020 titled "Affidavit of Service." (ECF No. 18, p. 3). In that document, Plaintiffs attached a certified mail return receipt. (Id.). The receipt was addressed to "Chipotle Mexican Grill, Inc., 610 Newport Drive - Suite 1300, Newport Beach CA 92660" and included a handwritten signature above the printed name "MACIAS, E." and a delivery date of "8/25/20." (ECF No. 3-1). Plaintiffs neither provided support to verify the identity of the signee nor information about his or her relationship to Chipotle. (ECF No. 18, p. 3).
Discovery revealed that Eduardo Macias, a contract security guard, signed for the mailing from Plaintiffs at Chipotle's Newport Beach headquarters on August 25, 2020. Macias owns Crime Prevention Specialists and contracts with Security Now USA to provide security services at the office building where Plaintiffs tried to mail service. (ECF No. 33-1, p. 3). Macias waspresent temporarily in August 2020 to fill in as a security guard. (ECF No. 33-2, pp. 40:11-41:25). During his deposition, he stated that he merely accepted the delivery of that day's mail because he was near the maildrop. No one else was present because of the pandemic-related office closure. Macias signed the mail receipt but did not know which letter corresponded with the mail receipt, did not open the letter, did not know who had sent it and did not know what its contents included. (ECF No. 33-2, 64:24-65:11). Chipotle did not authorize Macias to accept legal process on Chipotle's behalf. (Id. at 65:18-22, 66:6-9); (ECF No. 33-1, 4-5, 9).
"Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court." McGuire v. Safeware, Inc., Civ. Action No. 13-3746, 2013 WL 5272767, at * 1 (E.D. Pa. Sept. 17, 2013) (citation omitted). Under 28 U.S.C. § 1447(c), a court may remand a case for two reasons: (1) a district court's lack of subject matter jurisdiction or (2) a defect in the removal procedure. PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). "[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (footnote omitted). Plaintiffs only allege a procedural defect that Chipotle's removal was not timely. (ECF No. 4).
Under 28 U.S.C. § 1446(b), the notice of removal of a civil action must be filed within thirty days after receipt by the defendant of the initial pleading through service. See Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 347-48 (1999) (). Plaintiffs assert that because they served the Complaint by certified mail on August 25, 2020, Chipotle's September 25, 2020 Notice of Removal was untimely. (ECF Nos. 4,p. 2; 36, p. 1). Chipotle asserts that Plaintiffs did not properly serve it on August 25, 2020. Rather, the Court should count from August 27, the day the sheriff in Allegheny County served Chipotle. Thus, Chipotle alleges, its Notice of Removal was timely filed on September 25, 2020. The Court finds that Plaintiffs' process of service by certified mail was improper. Thus, Chipotle's September 25, 2020 Notice of Removal was timely.
Under Pennsylvania Rule of Civil Procedure 404, a plaintiff may serve process outside the Commonwealth of Pennsylvania by mail in the manner provided by Pennsylvania Rule of Civil Procedure 403. Pa. R. Civ. P. 403. A note for Rule 403 states, Id. Note.
The burden is on Plaintiffs to show that they served the proper agent of a corporation. Richman, Berenbaum & Assoc., P.C. v. Carolina Cas. Co., No. 02-3195, 2002 WL 1895900, at *6 (E.D. Pa. Aug. 14, 2002) (citation omitted). Under Pennsylvania law, service by mail upon an out-of-state corporation is not proper unless a form accompanies requiring a receipt signed by the defendant or his authorized agent. See Forringer v. Savage Arms, Inc., No. 17-1272, 2017 U.S. Dist. LEXIS 174627 (W.D. Pa. Oct. 23, 2017) (). Unlike restricted delivery mail, certified mail does not limit the recipient of the mail to the addressee or his authorized agent and so does not comply with Rule 403. Id.(quoting McVicker v. Knight Protective Serv., Inc., No. 11-245, 2011 U.S. Dist. LEXIS 50167 (W.D. Pa. 2011)).
Service by certified mail without restricted delivery is improper. In Grant Street Group, Inc. v. D & T Ventures, LLC, No. 10-1095, 2011 WL 778438, at *1 (W.D. Pa. Mar. 1, 2011), the court rejected the plaintiff's attempt to serve using certified mail. There, the plaintiff argued that service was proper because the person who signed for the certified mail oftentimes signed for letters on behalf of the company despite not being an employee of the company. But the court disagreed. Id. Simply because the secretary accepted the certified letter did not make the secretary an agent of the defendant. Id. Further, the plaintiff could not establish otherwise that the signee of the letter was an authorized agent of the defendant. Id. Similarly, the court in Forringer, 2017 U.S. Dist. LEXIS 50167, at *3, also held that service by certified mail without restricted delivery was improper because it did not require the defendant or the defendant's agent to sign for the document. Proper service by restricted mail requires that the recipient either be the defendant or the defendant's agent.
Here, just as in Grant Street and Forringer, Plaintiffs sent the service to a foreign corporation by certified mail without restricted delivery. Plaintiffs' proof of service form showed that, although they attempted service by certified mailed, Plaintiffs did not select "restricted delivery." (ECF No. 3-1). The Court finds that Plaintiffs' service of process by certified mail was improper.
Plaintiffs have not established that Macias was Chipotle's authorized agent. Pennsylvania Rule of Civil Procedure Rule 424 restricts service of process by mail on a corporation to "(1) an executive officer, partner or trustee of the corporation or similar entity, . . . (2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of thecorporation or similar entity, or . . . (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it." Macias signed for the mailing from Plaintiffs. (ECF No. 33-2, 64:24-65:11). Macias was a contract security guard, and Chipotle did not hire him directly. Chipotle did not authorize Macias to accept legal process. (Id. at 65:18-22, 66:6-9); (ECF No. 33-1, 4-5, 9).
To continue reading
Request your trial