UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Optical Solutions, Inc.
v. Civil No. 17-cv-429-JL
Opinion No. 2018 DNH 029
Nanometrics, Inc.
ORDER ON MOTION TO REMAND
The question before the court is when the 30-day period to
seek removal under 28 U.S.C. § 1446(b) commences. Is it when,
pursuant to New Hampshire’s long arm statute, a plaintiff serves
a copy of the summons and Complaint on the Secretary of State
(after first sending the defendant a “courtesy copy,”)? Or is
it when a defendant received the summons and complaint from the
Secretary of State?
After filing its Complaint in New Hampshire Superior Court
on August 2, 2017, plaintiff Optical Solutions, Inc. (“OSI”)
sent a copy of the Complaint and summons to defendant
Nanometrics’ general counsel, which was received on August 4.
On August 8, OSI, via the Merrimack County Sheriff, served the
Complaint upon the Secretary of State. On August 14, OSI mailed
a copy of the Complaint, summons, and affidavit of service upon
the Secretary of State to Nanometrics’ headquarters in
California by registered mail. Nanometrics received those
documents on August 18, 2017, and removed the suit to this court
on September 18, 2017. OSI moved to remand, arguing that the
removal window closed on September 8, 2017, 30 days after the
Secretary of State was served. Nanometrics asserts that the
clock did not begin to run until August 18, when it received the
suit papers after the Secretary was served. After reviewing the
parties’ submissions and conducting oral argument, the court
finds that removal was timely and therefore denies plaintiff’s
motion to remand.
I. Applicable legal standard
The federal statute governing removal of actions from state
court, provides:
The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by
the defendant, through service or otherwise, of a copy
of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based,
or within thirty days after the service of summons
upon the defendant if such initial pleading has then
been filed in court and is not required to be served
on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b). “The defendant seeking removal bears the
burden of establishing that the defendant has complied with the
removal procedures.” 16 James Wm. Moore, Moore’s Federal
Practice § 107.11[3], at 107–46 (3d ed. 2010); see also Santa
Rosa Med. Ctr., Inc. v. Converse of P.R., Inc.,
706 F. Supp.
111, 114 (D.P.R. 1988) (“The petitioning defendant bears the
2
burden of establishing compliance with the requirements of the
removal statute . . . .”).
II. Factual background
As a result of a business dispute, OSI filed a complaint
against Nanometrics in New Hampshire Superior Court on August 2,
2017.1 The following day, counsel for OSI sent Nanometrics’
general counsel a letter with copies of the state court
Complaint and summons, for the purpose of giving Nanometrics
“one last chance” to settle the parties’ dispute.2
On August 8, 2017, a Merrimack County Sheriff served OSI’s
Complaint and summons on the New Hampshire Secretary of State,
pursuant to New Hampshire’s long-arm statute, N.H. Rev. Stat.
Ann. § 508:4.3 OSI mailed a copy of the Complaint, summons and
affidavit of service on the Secretary of State to Nanometrics’
California headquarters and Delaware registered agent on August
1 Complaint, doc. no. 1-1.
2 Pltff. Mem., doc. no. 9-1, at 1-2; Def. Obj., doc. no. 13, at
2.
3 Pltff. Mem., doc. no. 9-1, at 2.
3
14, 2017.4 Nanometrics received the documents on August 18,
2017.5
Invoking this court’s diversity jurisdiction, Nanometrics
removed the case on September 18, 2017.6 Shortly thereafter,
Nanometrics moved to dismiss the Complaint, arguing that it was
not subject to personal jurisdiction in New Hampshire and that
OSI failed to state a claim for relief.7 Nanometrics also moved
for a change of venue.
OSI moved to remand, arguing only that Nanometrics’ removal
was untimely because its statutory 30-day removal clock began
running on August 8, 2017, when the Merrimack County Sheriff
served the New Hampshire Secretary of State.8 See 28 U.S.C. §
1446(b).
III. Analysis
“[A] defendant’s statutory period to remove does not begin
to run . . . until the defendant has been served.” Novak v.
4 Id. at 2.
5 Id. Earlier that day, OSI counsel confirmed to Nanometrics’
counsel that the August 3, 2017 mailing was not intended to
constitute service. Def. Obj., doc. no. 13, at 2-3.
6 Notice of Removal, doc. no. 1.
7 Doc. nos. 5, 6.
8 Doc. no. 9.
4
Bank of New York Mellon Trust Co., NA, 783 F.3d 910, 911 (1st
Cir. 2015) (citing Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc.,
526 U.S. 344, 347-48 (1999)). OSI served
Nanometrics through New Hampshire’s long-arm statute,
N.H. Rev.
Stat. Ann. § 510:4. “Strict compliance” with the statute’s
provisions is required to effect service. Impact Foods Sales,
Inc. v. Evans,
160 N.H. 386, 391 (2010). The question for the
court is when service occurred for purposes of the federal
removal statute.
New Hampshire’s long-arm statute provides that service “may
be made by leaving a copy” of the summons and complaint with the
Secretary of State. N.H. Rev. Stat. Ann. § 510:4, II. While
such service “is of the same legal force and effect as if served
on the defendant,”
id., such effect is predicated on a
subsequent proviso clause,9 which requires: 1) notice of that
service to the defendant; and 2) proof provided to the court of
the defendant’s receipt of the service.
Id.
OSI argues that the “date of service” for purposes of
calculating the removal period is the date the Secretary is
9 A proviso is a condition on “the principal matter that it
qualifies--almost always the matter immediately preceding.”
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 154 (Thompson/West 2012).
5
served, and that the proviso clause does not operate to make the
service date dependent on those additional tasks, i.e., notice
of service to the defendant and proof of the defendant’s receipt
to the court. Instead, OSI asserts that service on the
Secretary of State, combined with Nanometrics actual notice --
obtained through the “courtesy copy” -- triggered the removal
clock no later than August 8. OSI’s reading of this statute is
at odds with the conclusions of United States Supreme Court, the
New Hampshire Supreme Court, and the First Circuit Court of
Appeals. The court therefore rejects it.
In Murphy Bros., supra, the Court rejected the so-called
“receipt rule” under which the removal period would begin to run
when the defendant received a courtesy copy of the complaint
prior to service of official process, pursuant to the “or
otherwise” clause of the removal statute. 526 U.S. at 353-54.
In describing the various permutations of service permitted
under different state laws, the Court observed that “if the
Complaint is filed in court prior to any service, the removal
period runs from the service of the summons.”
526 U.S. at 354.
Otherwise, the Court noted, removal would be the “sole instance
in which one’s procedural rights slip away before service of a
summons, i.e., before one is subject to any court’s authority.”
Id. at 356.
6
Next, the New Hampshire Supreme Court shed light on the
definition of “service” in Impact Foods, supra, holding that “in
order to effect valid service of process” all three steps
outlined in N.H. Rev. Stat. Ann. § 510:4 “must be taken.”
160
N.H. at 391. The Court therefore vacated a default judgment
entered when the notice to the defendant lacked notice of actual
service on the Secretary of State, but included only a copy of
the instructions given to a sheriff to serve the Secretary.
Id.
at 388-89.
In a case decided under New Hampshire law, our Court of
Appeals presaged the result in Impact Foods. See M&K Welding v.
Leasing Partners, LLC, 386 F.3d 361, 363-64 (1st Cir. 2004).
The court accurately predicted that the New Hampshire Supreme
Court “would take literally the requirement in section 510:4,
II, that notice be given of the actual service on the Secretary
of State” for service to be complete.
Id. at 365-66. Although
M&K Welding involved a default for failing to respond to a
complaint, the Court provided a warning that is directly
applicable to this case:
Appellant’s interpretation would give rise to many
questions. From what time do the twenty or so days [to
answer the Complaint] run? If only from the time of
service on the Secretary, how will a defendant know?
If a defendant fears that the starting date is that of
his receipt of the summons, and it happens that the
Secretary is never served, is this a tolerable
7
procedure? Any actions taken by defendant to respond
would have proven needless.
Id. at 366. And, most presciently, the Court concluded,
“Finally, for cases such as this, which are removed to federal
court, will there be confusion and disputes about the running of
time within which notices of removal can be filed?”
Id. at 367.
With these guideposts in mind, the court finds that
Nanometrics’ time to remove did not begin to run until it
received formal notice of service on the Secretary of State,
which the parties agree occurred on August 18, 2017. The notice
of removal is therefore timely. Other district courts in this
circuit have reached similar results in comparable
circumstances. See, e.g., Renaissance Mktg., Inc. v.
Monitronics Int’l Inc., 606 F. Supp. 2d, 201, 206 (D.P.R. 2009)
(collecting cases and observing that courts have “consistently
held” that service on a statutory agent does start the removal
clock running); Wilbert v. UNUM Life Ins. Co.,
981 F. Supp. 61,
63 (D.R.I. 1997) (“[w]hen a statutory agent is served, the clock
for removal does not begin ticking as it would if the defendant
itself has been served but rather starts when the defendant
received actual notice of the service from the statutory
agent.”); Colello v. Baker Material Handling Corp.,
849 F. Supp.
3, 4 (D. Me. 1994) (“Courts in most, if not all, jurisdictions
8
have held that the thirty-day removal period does not commence
with service on ‘statutory agents.’”).
OSI tries to elide the import of these cases by suggesting
that its “courtesy copy” kept Nanometrics from being “in the
dark” about the suit, as the court in M&K Welding had feared.
But not only does Murphy Bros. suggest that the courtesy copy is
a non-factor in the timeliness analysis, each of the cases cited
above involved statutory service on the defendant, not simply
receipt of a courtesy copy devoid of formal service. Indeed,
OSI has cited no case where a court held that the removal period
begins to run when service on an agent is preceded by a courtesy
copy, but before the defendant has been formally served. OSI’s
motion to remand is therefore denied.10
10In its supplemental filing, doc. no. 17, Nanometrics argues
that the court should not consider whether OSI complied with
N.H. Rev. Stat Ann. § 510:4 because that statute pertains only
to individuals. Instead, Nanometrics contends that the court
should focus on the timeliness of its removal in the context of
the corporate long-arm statute, N.H. Rev. Stat. Ann. § 293-
A:15.10. In reply, doc. no. 19, OSI asks the court to reject
this proposition. While Nanometrics correctly notes that
Sawtelle v. Farrell,
70 F.3d 1381, 1388 (1st Cir. 1995) and
cases from this district have observed that the latter statute
is appropriate for corporate defendants, they are not
dispositive here. In each of the cited cases, the issue in
dispute was personal jurisdiction over a non-resident defendant,
an issue not presently before the court. Moreover, the
corporate long-arm statute explicitly states that it is not “the
only means, or necessarily the required means, of service on a
foreign corporation.”
N.H. Rev. Stat. Ann. § 293-A:15.10(d).
9
IV. Conclusion
Having concluded that Nanometrics removal was timely, OSI’s
motion to remand11 is DENIED.12
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated: February 8, 2018
cc: Matthew R. Johnson, Esq.
Gregory L. Silverman, Esq.
Kathleen Goodhart, Esq.
Regardless, having found that removal was timely under section
510:4, the court need not address Nanometrics’s argument that it
was also timely under § 293-A:15.10.
11 Doc. no. 9.
12Having found that Nanometrics’s removal period did not
commence until it received notice on August 18, 2017, the court
need not decide the potential legal effect, if any, of OSI’s
counsel’s statement regarding the courtesy copy, supra, n.5.
Nor does the court address Nanometrics’s argument that the
removal clock did not begin to run until August 31, 2017, when
OSI informed the state court that proof of service on the
Secretary of State had been delivered to OSI, the final
requirement of N.H. Rev. Stat. Ann. § 510:4.
10
