United States District Court, E.D. Wisconsin
ANDREW L. COLBURN, Plaintiff,
NETFLIX, INC., CHROME MEDIA, LLC, LAURA RICCIARDI, and MOIRA DEMOS, Defendants.
ORDER SCHEDULING EVIDENTIARY HEARING AND DENYING AS
MOOT DEFENDANTS' MOTION FOR LEAVE TO FILE RESPONSE TO
PLAINTIFF'S NEW ARGUMENTS (DKT. NO. 108)
PAMELA PEPPER Chief United States District Judge.
December 19, 2019 motion hearing, the court indicated that it
would schedule an evidentiary hearing on the service issue
raised in the motion to dismiss filed by defendants Chrome
Media, Laura Ricciardi and Moira Demos. Dkt. No. 104. The
court discussed the multiple disputes of fact between the
parties regarding when the plaintiff had served the
defendants (or whether the plaintiff properly had served
them), and the relationship between service-which would
determine when the case “commenced”-and the
statute of limitations.
the court announced its intention to hold an evidentiary
hearing, the plaintiff's counsel asserted that the court
should use the federal rule and law regarding proper service
to determine whether and when the defendants were properly
served. Counsel argued that the defendants had not mentioned
28 U.S.C. §1448, “which governs service after
removal where there's a defect in service or in service
prior to removal, ” in their initial motion to dismiss.
Dkt. No. 103 at 31 lines 8-11. Plaintiff's counsel
explained that the plaintiff had mentioned it in his
response, which had led to the defendants' “reply
brief and the mention of the Walker case.”
Id. at lines 11-12. Plaintiff's counsel asserted
that the “Walker” case distinguished Hanna v.
Plumer, 380 U.S. 460 (1965)-a decision that, despite
filing two sur-replies, the plaintiff had not cited in his
pleadings. The plaintiff asserted that because 28 U.S.C.
§1448 was “implicated, ” Hanna
governed, and provided that “where there is a direct
conflict between a variably promulgated federal rule and even
state substantive law, even the statute of limitations, which
was essentially what was at issue in Plumer.”
Id. at lines 19-24. The plaintiff argued that under
Hanna, the federal rule and federal law prevailed.
The plaintiff also argued that under Wis.Stat. §893.15,
when a Wisconsin claim is pending in a foreign forum, the
foreign court looks to “local foreign law with respect
to the question of commencement of an action.”
Id. at 32 lines 6-14.
counsel responded that this was the first the defendants had
heard about Wis.Stat. §813.15. Id. at 33 lines
3-4. Defense counsel asserted that the “Walker”
case, which the defense has cited in its reply brief as
Walker v. Armco Steel Corp., 446 U.S. 740 (1980),
involved a statute nearly identical to the Wisconsin service
statute, and mandated that if the defendants weren't
properly served under the Wisconsin service statute, the
plaintiff's claims could not proceed in federal court.
Id. at 8-19. The defendants argued that
Walker was “on all four squares with our
case.” Id. at 20-21. The defendants concluded
by saying that, while they understood the court thought there
was a need for an evidentiary hearing, if the court found at
that evidentiary hearing “that service did not occur
pre-removal or pre-March 18, 2019, the case is over. Federal
rules can't save this.” Id. at 35 lines
court has reviewed the arguments and has looked at
Hanna and Walker. The court finds the
discussion of those cases-and much of the plaintiff's
legal argument-to be irrelevant.
events that gave rise to the plaintiff's claims began
when the documentary aired on December 18, 2015. Wis.Stat.
§893.57 states that an action to recover damages for
intentional torts such as defamation “shall be
commenced within 3 years after the cause of action accrues or
be barred.” The defendants argue that the
plaintiff's cause of action accrued when the series
aired, and so the three-year limitations period expired on
December 18, 2018. This means that the plaintiff had to
“commence” his action by December 18, 2018 to
avoid being time-barred. The plaintiff filed his complaint in
state court on December 17, 2018, the day before the alleged
expiration of the statute of limitations. Dkt. No. 1-1.
Stat. §801.02(1) says that a civil case “is
commenced” when the summons and complaint “are
filed with the court, provided service of an authenticated
copy of the summons and of the complaint is made upon the
defendant under this chapter within 90 days after
filing.” So the plaintiff's lawsuit is not
time-barred if he properly served the defendants in
accordance with Wisconsin law within ninety days of December
17, 2018-by Monday, March 18, 2019. The defendants assert the
plaintiff did not effectuate proper service under Wisconsin
law by Monday, March 18, 2019, and that the lack of proper
service meant the plaintiff's claims against the
defendants were barred by the statute of limitations.
plaintiff did not address this assertion in his opposition
brief. In parts of the brief, he talked about the
federal rule governing service of process-Fed. R.
Civ. P. 4(m). Dkt. No. 52. At the third page of his response
brief, the plaintiff discussed how courts liberally construe
Fed.R.Civ.P. 4. Id. at 3. He pointed out that
he'd moved for additional time to serve the defendants
under Rule 4. Id. at 6. In other parts of his brief,
the plaintiff argued that he'd properly served the
defendants under state law. The plaintiff asserted that he
had properly served the individual defendants “as
required by the statute, ” citing Wis.Stat.
§801.11(1)(c). Id. at 8. He also argued that
he'd exercised due diligence in serving the defendants,
such that service by publication was appropriate under
Wis.Stat. §801.11(1)(c). Id. at 11.
brief repeatedly asserted that the plaintiff had properly
served the defendants before the case was removed to
federal court. He did not, however, address the
defendants' contention that he had not served them under
Wisconsin law before March 18, 2019. Toward the end
of his response, the plaintiff asserted that under 28 U.S.C.
§1448, he had ninety days from the date of removal from
state to federal court to serve any defendant who had not
been properly served. Id. at 15. He also argued that
the court had good cause to extend that time under Rule 4(m)
of the federal rules.
defendants responded that Fed.R.Civ.P. 4 does not determine
when the case “commenced.” Dkt. No. 86 at 1. They
argued that the issue was whether the plaintiff properly
served the defendants under Wisconsin law before the statute
of limitations expired. Id. at 1-2. They contended
that the fact that they removed the case to federal court had
no bearing on the question, asserting that if the plaintiff
did not properly serve them under state law by March 18, 2019
(weeks before the defendants removed the case to federal
court), his claim against them was time-barred. Id.
The defendants spent the rest of their reply brief explaining
why they believe the plaintiff did not effect proper service
under state law prior to March 18, 2019.
plaintiff's arguments all glance off the relevant
question: whether he “commenced” his action
within the three-year statute of limitations. The plaintiff
filed his state-law defamation action against the defendants
in Wisconsin state court. Wisconsin law governs the statute
of limitations for that state-law defamation claim, and it
says that the plaintiff must “commence” his
action on that claim within three years of the date it
accrued. Wisconsin law defines the date of
“commencement” of an action as the date the
plaintiff files the action only if he properly
serves it under Wisconsin law within ninety days of
the date of filing. So whether a Wisconsin defamation action
is time-barred depends on whether the plaintiff properly
served the complaint in compliance with Wisconsin law within
ninety days of the date he filed it.
plaintiff has asserted that he properly served the defendants
prior to removal. Even if true, that fact is irrelevant for
statute-of-limitations purposes. In order to avoid a
statutory bar, he had to properly serve the defendants in
accordance with Wisconsin law within ninety days of the date
he served the complaint in state court. Nowhere in the
plaintiff's pleadings does he state that he properly
served the defendants under Wisconsin law by March 18, 2019.
the plaintiff argues that under 28 U.S.C. §1448, a
plaintiff who discovers post-removal that service was
defective may issue new service “in the same manner as
in cases originally filed in such district court.”
Because any defect in service prior to March 18, 2019 is
linked to the statute of limitations, the plaintiff's
assertions amount to an argument that he should be able to
use §1448 to get around the statute of limitations. At
least one other district court has rejected a similar
argument. In Morton v. Meagher, 171 F.Supp.2d 611
(E.D. Va. 2001), a plaintiff who'd effected improper
service on the last day prescribed by state statute cited
§1448, arguing that it “allow[ed] a federal
district court to correct deficient service.” 171
F.Supp.2d at 614. The Virginia court rejected this argument,
holding that “§ 1448 does not retroactively extend
the time limits prescribed by state law in cases where
service was untimely before the action is removed to
federal court.” Id. at 615. The court went on
to say that
[n]othing in the text, or the legislative history, of §
1448 permits it to serve as a phoenix for the ashes of an
action that could not have survived in the state courts.
“Implicit in our conclusion is that § 1448 cannot
be utilized to breathe jurisprudentially life into a case
legally dead in state court.” Witherow v. Firestone
Tire & Rubber Co., 530 F.2d 160, 168 (3d Cir. 1976).
See also Marshall v. Warwick, 155 F.3d 1027, 1033
(8th Cir. 1988) (“We do not believe this section can
‘resurrect' a removed diversity case which would
have been dismissed as time-barred had it remained in state
court.”); Osbornev. Sandoz Nutrition
Corp., 67 F.3d 289, 289 [sic], 1995 WL 597215 (1st Cir.
1995) (unpublished) (“Applying Section 1448 would
ignore [plaintiff's] procedural deficiency in state
court, and effectively penalize [defendant] for exercising
its removal right. We decline to use Section 1448, as the
district court noted, to ‘breathe jurisprudential life
in federal court to a case legally dead in state
court.'” (quoting Witherow, 530 F.2d at
168)); Four Keys Leasing & Maintenance Corp. v.
Smithis, 849 F.2d 770, 774 (2nd Cir. 1988) (“it
would be a perversion of the ...