Koppel v. Moses

• Decision Date: 27 October 2020
• Docket Number: Civil No. 20-11479-LTS
• Parties: JAMES KOPPEL, Plaintiff, v. WILLIAM MOSES, Defendant.
• Court: U.S. District Court — District of Massachusetts

JAMES KOPPEL, Plaintiff, v. WILLIAM MOSES, Defendant.

Civil No. 20-11479-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

October 27, 2020

ORDER ON PLAINTIFF'S MOTION TO REMAND (DOC. NO. 13), DEFENDANT'S MOTION TO SET ASIDE DEFAULT (DOC. NO. 5), AND DEFENDANT'S MOTION TO DISMISS (DOC. NO. 6)

SOROKIN, J.

This action for defamation and associated torts was removed from Massachusetts Superior Court by Defendant William Moses on August 5, 2020 after an order of default had been entered against him. Before the Court are Plaintiff James Koppel's Motion to Remand (Doc. No. 13), Moses's Motion to Set Aside Default (Doc. No. 5), and Moses's Motion to Dismiss (Doc. No. 6). For the reasons which follow, Koppel's Motion to Remand is DENIED, Moses's Motion to Set Aside Default is ALLOWED, and Moses's Motion to Dismiss is ALLOWED IN PART and DENIED IN PART. Specifically, Moses's Motion to Dismiss is DENIED as to Count I and ALLOWED as to the remaining counts.

I. KOPPEL'S MOTION TO REMAND

The Court must first demine whether it has jurisdiction to hear this case. If there is jurisdiction, it must be through removal of the underlying state action to this Court. Moses removed under 28 U.S.C. § 1441 which, subject to certain conditions, allows the removal of state court actions over which this Court may exercise subject-matter jurisdiction. Koppel challenges the removal on two grounds, arguing (1) that removal was untimely and (2) that this Court has no subject-matter jurisdiction to hear his case.

"On a motion for remand, the burden of proving the propriety of removal rests on the party who removed." Societa Anonima Lucchese Olii E. Vini v. Catania Spagna Corp., 440 F. Supp. 461, 464 (D. Mass. 1977) (citation omitted). Moses thus bears the burden of demonstrating both timeliness and subject-matter jurisdiction.

A. Timeliness of Removal

28 U.S.C. § 1446 allows a defendant to remove a state court action to federal court within thirty days of receipt of service. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348-49 (1999). Notice of removal was filed on August 5, 2020. Doc. No. 1. Moses argues he first received the summons and complaint on July 17, 2020 which, if true, would make his removal timely. Doc. No. 20 at 1. Koppel responds that Moses was first served on May 4, 2020 and therefore missed the deadline to remove by several months. Doc. No. 14 at 2. There are no other dates on which Moses might have been served. To decide whether removal was timely, the Court must therefore determine whether Moses was properly served on May 4^th of this year.

These are the undisputed facts. Moses is a graduate student at the Massachusetts Institute of Technology (MIT). Doc. No. 20-2 ¶ 5. He took up residence in Apartment 491B of MIT's Sidney Pacific dormitory in Cambridge, Massachusetts some time in 2017. Id. ¶ 15. In early March of this year, MIT responded to the developing COVID-19 pandemic by announcing that it was cancelling classes and encouraging all graduate students to arrange off-campus accommodations. Id. at 25. Three days later, Moses sent the following email to MIT:

I've cleared out my apartment (491 B) in Sidney Pacific and am planning on leaving tomorrow evening. I have a continuing lease,[¹] and I'd like to return to Sidney Pacific once this is all over. How should I terminate my lease / fill out the forms on the housing website?

Id. at 22.

In response to this email, Moses was given a "Graduate Housing Termination Form." Id. ¶ 19. He was told that once he completed and submitted this form, and returned his keys, his rent obligations for the year would end but that he could renew his lease on Apartment 491B at some point before the next academic year. Id. Moses completed the form and returned his keys on March 13, 2020, and thereafter returned to Virginia to live with his parents. Id. He has not returned to the apartment since. Id. The last rental payment he made for Apartment 491B was for the month of March and this payment was partly refunded by MIT after Moses moved out early. Id.

Koppel filed this lawsuit in Massachusetts Superior Court on April 13, 2020. Doc. No. 1-3. On May 4, 2020, two months after Moses moved back to Virginia, a process server hired by Koppel left a copy of the summons and complaint at the door of 70 Pacific St, Apartment 491B.² Doc. No. 14-1. The return also states that the summons and complaint were mailed but does not specify to where they were mailed.³ Moses, who was in Virginia at the time, has submitted an affidavit stating that he did not receive a copy of the summonsor complaint at his new address. Doc. No. 20-2 ¶ 21. Three weeks later, Koppel moved for Entry of Default. Doc. No. 1-3 at 22.

Moses alleges he had no knowledge of this lawsuit until July 6, 2020 when he received by mail a copy of a default order entered by the Clerk of the Massachusetts Superior Court. Doc. No. 20-2 ¶ 21. Moses then retained counsel. On July 17, 2020, Moses's counsel reached out to counsel for Koppel, who agreed to provide a copy of the complaint and summons by email. Doc. No. 20 at 4. Moses then removed the action to this Court in a timely fashion, if measured from the date Moses's counsel accepted service by email. Doc. No. 1. The only question is whether Moses was properly served two months earlier on May 4^th, when a process server left a copy of the summons and complaint at the door of Apartment 491B.

This case was originally filed in Massachusetts Superior Court, so Massachusetts law governs the validity of service. See Frankston v. Denniston, 376 F. Supp. 2d 35, 39 (D. Mass. 2005) (citing In re Pharm. Indus. Average Wholesale Price Litig., 307 F. Supp. 2d 190, 195 (D. Mass 2004)). Under the Massachusetts Rules of Civil Procedure, service may be made on an individual within the Commonwealth "by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode." Mass. R. Civ. P. 4(d)(1).

"Massachusetts courts considering whether service was made at an individual's 'last and usual place of abode' have found service to be improper where the defendant no longer resided at the address to which the summons and complaint were delivered." United States v. Tobins, 483 F. Supp. 2d 68, 75-76 (D. Mass. 2007); see also Konan v. Carroll, 638 N.E. 2d 936, 938-39 (Mass. Apt. Ct. 1994) (service improper when defendant no longer lived at address).

It is undisputed that Moses was not residing in Apartment 491B on May 4^th, the alleged date of service. Moses had moved out of the apartment months earlier, had stopped paying rent on the apartment, and had surrendered his keys to the apartment. Doc. No. 20-2 ¶ 15. Koppel has offered no evidence to the contrary. Thus, by all accounts, Moses stopped residing in Apartment 491B on March 13, 2020, well before service was attempted on May 4^th.

These facts are strikingly similar to the facts of Rogan v. Liberty Mut. Ins. Co., 25 N.E.2d 188 (Mass. 1940). There, as here, the plaintiff argued service was performed by leaving process at the defendant's "last and usual place of abode" in Massachusetts. Id. at 188. And there, as here, the defendant no longer lived at that address at the time of the alleged service and, indeed, had moved to another state two months earlier. Id. The Supreme Judicial Court concluded service was invalid in Rogan and this Court holds the same here. Moses was not living in Apartment 491B on May 4, 2020, that apartment was not his "last and usual abode," and the attempted service on that date was therefore invalid.

Koppel argues the contrary. To him, service was effective because Moses only temporarily abandoned Apartment 491B, as evidenced by his assertion that he maintained a "continuing lease" on the property. Doc. No. 14 at 7 (quoting Doc. No. 20-2 at 22). As noted above, the record is unclear on what Moses meant by his reference to a "continuing lease." See supra n.1. The facts, however, foreclose any inference that Moses maintained a current possessory interest in the property, given that he had moved out, surrendered his keys, and stopped paying rent. Doc. No. 20-2 ¶ 15. But even if Moses's "continuing lease" granted him some interest in Apartment 491B on May 4^th, it would not matter. It is clear he was not residing in the apartment at the time that service was attempted and a mere interest in a property is not enough to make it one's last and usual abode. See Farley v. Sprague, 372 N.E. 2d 1298, 1299,1301-02 (Mass. 1978) (holding that property owned, but not lived in, by defendant was not his last and usual abode for purposes of service under Mass. R. Civ. P. 4(d)(1)). Moses's "continuing lease" on the property, whatever its nature, is therefore beside the point.

Koppel's final argument is that entry of default by the Massachusetts Superior Court was a determination that service was proper, and he suggests that this determination is somehow binding on this Court. See Doc. No. 12 at 3. Not so. The adequacy of service was not decided by the Superior Court; entry of default is a pro forma administrative notation entered by the Clerk of Court without litigation or fact finding. Doc. No. 1. Federal courts commonly set aside such entries in cases removed from state court when service was invalid. See, e.g., Wallace v. Interpublic Grp. of Cos., Inc., 09-CV-11510-NGE, 2009 WL 1856543, at *2 (E.D. Mich. June 29, 2009) (rejecting a similar argument).

The May 4^th attempted service on Apartment 491B was invalid. Moses was first served on July 17, 2020, meaning his removal to this Court, less than thirty days later, was timely.

B. Subject-Matter Jurisdiction

Because the Complaint alleges only state law claims, this Court has jurisdiction, if at all, under 28 U.S.C. § 1332, which grants federal district courts subject-jurisdiction over actions between citizens of different states when the amount in controversy exceeds $75,000. Koppel is a citizen of Massachusetts. Doc. No. 14 at...