ORDER DENYING PLAINTIFFS' MOTION TO REMAND TO STATE COURT

[Dkt. No. 12.]

GONZALO P. CURIEL, District Judge.

Before the Court is Plaintiff Anton Ewing's motion to remand to state court. (Dkt. No. 12.) An opposition and a reply was filed. (Dkt. Nos. 14, 18.) On November 7, 2016, Plaintiff Claudine Osgood filed a reply.1 (Dkt. No. 25.) Based on the reasoning below, the Court DENIES Plaintiffs' motion to remand.

Background

On August 15, 2016, Plaintiffs Claudine Osgood and Anton Ewing, proceeding pro se, filed a state court complaint in the San Diego Superior Court for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq ("TCPA"); violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964(c) et seq. ("RICO"); and violation of California Penal Code sections 632 and 637.2(a)-(b) against Defendants Jerrod McAllister and Main Streat Marketing, LLC. (Dkt. No. 1-2, Compl.) On or about August 16, 2016, Plaintiffs served the Complaint and Summons on Defendant Main Streat and Defendant McAllister via mail with return receipt requested sent to 333 Nth Main Street, Cedar City, UT 84721. (Dkt. No. 1-2, Notice of Removal, Ex. A at 39, 412.)

On September 26, 2016, Defendants filed a notice of removal. (Dkt. No. 1.) On October 4, 2016, Plaintiffs filed a first amended complaint. (Dkt. No. 11.)

Discussion

A. Motion to Remand

Plaintiffs move to remand the case to state court arguing that the notice of removal was not timely filed as it was filed more than 30 days after Defendants were served on August 16, 2016 contrary to 28 U.S.C. § 1446(b). Defendants argue they timely complied with 30 day time requirement under 28 U.S.C. § 1446(b) because in California service of process is deemed complete 10 days after mailing pursuant to California Code of Civil Procedure section 415.40 ("section 415.40").

A motion to remand is the procedure to challenge removal of an action to federal court. 28 U.S.C. § 1447(c). There is a presumption against removal and the defendant always has the burden to demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).

Under 28 U.S.C. § 1446, a notice of removal of a civil action must be filed within 30 days after "the receipt by the defendant, through service or otherwise . . . ." 28 U.S.C. § 1446(b). California Code of Civil Procedure section 415.40 provides,

Cal. Code Civ. Proc. § 415.40. According to this provision, service is deemed complete on the 10th day after such mailing. Id.

A defendant's time to remove is triggered by formal service of the summons or complaint and "not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). The thirty-day period is "triggered" by "simultaneous service of the summons and complaint" or by "receipt of the complaint `through service or otherwise' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Id. While not addressing whether service may be effectuated pursuant to state law, courts have noted the Supreme Court's reliance on state law service of process to trigger a defendants' removal obligations in Murphy. City of Clarksdale v. Bellsouth Telecomms., Inc., 428 F.3d 206, 210 n.6 (5th Cir. 2005) (noting that Supreme Court examined the various state procedure for initiating a lawsuit and the effect of these differences on the removal statutes); Perez v. Bank of America, N.A., No. EP-13cv285-KC, 2013 WL 5970405, at *3 (W.D. Texas, Nov. 7, 2013) (citing Murphy as it described official service with reference to "local law"); In re Pharm. Indus. Average Wholesale Price Litig., 307 F.Supp.2d 190, 195 (D. Mass. 2004) ("After Murphy Brothers, proper service of process under state law is required to trigger a defendant's removal obligations."). "Although federal law requires the defendant to file a removal motion within thirty days of service, the term `service of process' is defined by state law." City of Clarksdale, 428 F.3d at 210; Usatorres v. Marina Mercante Nicaraguenses, 768 F.2d 1285, 1286 n. 1 (11th Cir.1985) ("A federal court may consider the sufficiency of process after removal and does so by looking to the state law governing process.").

Even prior to Murphy, the Ninth Circuit has held that "the sufficiency of service of process prior to removal is strictly a state law issue." Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir. 1993), overruled on other grounds, California Dept. of Water Resources v. Powerex Corp., 533 F.3d 1087, 1096 (9th Cir. 2008)). In line with this statement, district courts have held that "[s]tate law determines when the defendant first receives formal service of process." Taylor Morrison of Cal., LLC v. First Specialty Ins. Corp., Case No. SACV 15-1711 JVS(JCGx), 2015 WL 8215345, at *3 (C.D. Cal. Dec. 8, 2015) (applying 10 days period in section 415.40 in calculating start date of 30 day period for removal); Trust v. Staab, No. EDCV 15-1357 JVS(SPx), 2015 WL 8493925, at *2 (C.D. Cal. Dec. 9, 2015) (applying Cal. Civ. Proc. Code § 415.56 to conclude that service becomes effective 10 days after posting and mailing under); Watts v. Enhanced Recovery Corp., No. 10cv2606-LHK, 2010 WL 3448508, at *3 (Sept. 1, 2010) ("The sufficiency of service of process prior to removal from state court is determined under state law."); see Big B Automotive Warehouse Distribs., Inc. v. Cooperative Computing, Inc., No SC 00-2602, 2000WL 1677948, at *4 (N.D. Cal. Nov. 1, 2000) (applying ten day grace period under section 415.40 to determine whether notice of removal was timely). Moreover, in Jimena v. Standish, 504 Fed. App'x 632 (9th Cir. 2013), the Ninth Circuit held that the district court properly denied Jimena's motion to remand because defendants' notice of removal was timely and cited to 28 U.S.C. § 1446(b) and Cal. Civ. Proc. Code § 415.40. Id. at 634.

Plaintiffs argue they served the summons and complaint pursuant to section 415.40 by mailing them registered mail with return receipt. According to Plaintiffs, the 30 day period begins to run on the date of mailing, which was August 16, 2016. Plaintiffs also allege that Defendants received the summons and complaint on August 22, 2016, and Plaintiff Ewing emailed3 the summons and complaint to Defendant McAllister on August 16, 2016. Therefore, Ewing argues that Defendants had notice of the lawsuit as early as August 16, 2016 and as late as August 22, 2016 and the notice of removal is untimely based on either of these dates. In reply, Plaintiffs argue that the 10 day service rule in section 415.40 does not apply to 28 U.S.C. § 1446's 30 day requirement. However, Plaintiffs' argument is not supported by case law. As discussed above, state law determines when service of process is effectuated prior to removal.

On August 16, 2016, Plaintiffs mailed copies of the summons and complaint to each Defendant by "first-class mail, postage prepaid, requiring a return receipt." (Dkt. No. 1-2, Notice of Removal at 39, 41.) Pursuant to section 415.40, service was completed ten days later on August 26, 2016. Therefore, Defendant had thirty days from August 26, 2016 to file the notice of removal. Thirty days from August 26, 2016 was September 25, 2016, which was a Sunday. Under Fed. R. Civ. P. 6(a)(1)(C), in computing any time period if the "last day is a . . . Sunday . . the period continues to run until the end of the next day that is not a . . . Sunday . . . ." Therefore, since September 25, 2016 was a Sunday, the thirty day period to file a notice of removal was Monday, September 26, 2016. Defendant filed its notice of removal on September 26, 2016. (Dkt. No. 1.) The notice of removal was timely under 28 U.S.C. § 1446(b), and thus, the Court DENIES Plaintiffs' motion to remand to state court.

Conclusion

Based on the above, the Court DENIES Plaintiffs' motion to remand to state court. The hearing set for November 18, 2016 shall be vacated.

IT IS SO ORDERED.