United States District Court, E.D. Michigan, Southern Division
K. MAJZOUB MAG. JUDGE
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO
REINSTATE  AND DENYING DEFENDANTS' MOTION TO DISMISS
E. LEVY UNITED STATES DISTRICT JUDGE
Masjid Malcolm Shabazz House of Worship brought this civil
rights case in state court in February 2019. In May 2019, the
state court dismissed for non-service and Plaintiff filed a
motion to reinstate. In June 2019, while the motion to
reinstate was still pending, Defendants Mark Minch and the
City of Inkster, Michigan removed the action to federal
court. On July 19, 2019, Defendants filed a motion to
dismiss. In response, Plaintiff challenged this Court's
authority to hear the case, arguing that, because the case
had been dismissed in state court, there was no action to
remove and no federal jurisdiction over the matter.
reasons stated below, removal and jurisdiction are both
proper. The Court GRANTS Plaintiff's motion to reinstate
and DENIES Defendants' motion to dismiss.
February 20, 2019, Plaintiff Masjid Malcolm Shabazz House of
Worship, Inc. (“Shabazz”) filed a complaint in
the Wayne County Circuit Court (“WCCC”). (ECF No.
9-2, PageID.185.) Plaintiff alleged that Defendants-Inkster
Building Official Mark Minch and the City of Inkster,
Michigan-unlawfully designated Plaintiff's properties for
demolition in violation of Plaintiff's statutory and
constitutional rights. (ECF No. 1, PageID.12-17.) Plaintiff
also filed a motion on February 20, 2019 for a temporary
restraining order. (ECF No. 9-2, PageID.185.) That same day,
WCCC issued a summons that would expire on May 22,
2019.(ECF No. 1, Page ID.5.)
attempted to serve Defendants via FedEx on May 20, 2019. (ECF
No. 9-2, PageID.188, 191.) Plaintiff's attorney signed
proofs of service stating, “I served by registered or
certified mail (copy of return receipt attached) a copy of
the summons and complaint, together with Complaint and Jury
Demand with Exhibits.” (ECF No. 9-3, PageID.187.)
Plaintiff attached FedEx delivery slips and receipts to these
proofs stating that FedEx delivered the pleadings to
Defendants on Monday, May 20, 2019, at 9:18 a.m. (ECF No.
9-3, PageID.187-192.) The FedEx slips state that the packages
were “signed for by: Y.HOLMES.” (ECF No. 9-3,
PageID.188, 191.) On the date of service, the summons was
still valid. (ECF No. 1, PageID.5.)
23, 2019-the day after the summons expired-Plaintiff
attempted to file the proofs of service with WCCC, but WCCC
rejected the filing as noncompliant with court
guidelines. (ECF No. 9-4, PageID.194.) Pursuant to
M.C.R. 2.102(E), which requires dismissal “as to a
defendant who has not been served with process as provided in
these rules” upon “expiration of the summons,
” WCCC dismissed Plaintiff's action without
prejudice. (ECF No. 9-2, PageID.185.) Later that day, after
communicating with Plaintiff about the erroneous filing, the
WCCC clerk then re-filed the proofs and docketed three
entries: two entries titled “Service of Complaint,
filed” and one entry titled “Proof of Service,
filed.” (ECF No. 9-2, PageID.185; see ECF No.
9-4, PageID.195.) Though WCCC docketed the proof of service,
WCCC did not reinstate the case that day.
31, 2019, Plaintiff filed an ex parte motion to
reinstate its cause of action. (ECF No. 9-4, PageID.194.) On
June 3, 2019, Defendants' counsel sent Plaintiff's
counsel an email identifying himself as the Inkster City
Attorney. (ECF No. 9-5, PageID.219.) Defendants' email
noted that they “recently received a Summons &
Complaint drafted by [Plaintiff] on behalf of the Shabazz
House of Worship” and asked Plaintiff to “advise
when you served my Client and whether you will agree to a two
[sic] extension of time in which to file an Answer
or a responsive pleading.” (Id.) On June 6,
2019, Plaintiff filed a notice of hearing for its ex
parte reinstatement motion for a June 21, 2019 hearing.
(ECF No. 9-6, PageID.221.) Plaintiff did not serve Defendant
with this notice. (See Id. at PageID.221, 223.)
19, 2020, Defendants removed this case to the Eastern
District of Michigan pursuant to 28 U.S.C. § 1331. (ECF
No. 9-8, PageID.231.) Defendants emailed Plaintiff's
attorney on the same day to notify her of the removal. (ECF
No. 9-8, PageID.230.) Defendants filed a notice of removal
with WCCC on June 20, 2019, and WCCC's proof of service
indicates that Plaintiff's counsel was formally served
through WCCC's e-filing system. (ECF No. 9-7,
21, 2019-after all entities had notice that the case was
removed to federal court-Plaintiff requested a hearing with
the state court on Plaintiff's reinstatement motion. (ECF
No. 9-9, PageID.234.) WCCC heard ex parte oral
argument on the motion that same day. (ECF No. 9-2,
PageID.185.) Plaintiff then filed a proposed order granting
Plaintiff's motion to reinstate, which Defendants
received through WCCC's e-filing system. (ECF No. 9-10,
PageID.236-237.) On June 24, 2019, WCCC granted
Plaintiff's proposed order and reinstated the case in
state court. (ECF No. 9-11, PageID.239.) The following day,
on June 25, 2019, WCCC issued a scheduling order in the case.
(ECF No. 9-12, PageID.241.) Both the June 24 order
reinstating the case and the June 25 scheduling order were
entered after Defendants removed this case to this Court.
19, 2019, Defendants filed a motion in this Court to dismiss
Plaintiff's complaint for improper service. (ECF No. 9,
PageID.169.) Defendants' motion also requested that this
Court vacate the two WCCC orders entered after this case was
removed. (Id.) Plaintiffs responded on August 23,
2019, arguing that this Court does not have subject matter
jurisdiction over this case and Defendants do not have
standing to bring their motion to dismiss. (ECF No. 12,
PageID.250-251.) Plaintiff also requested attorney fees and
costs associated with responding to this motion.
LAW AND ANALYSIS
reasons below, this case was properly removed pursuant to 28
U.S.C. § 1441(a) and is appropriately before this Court.
WCCC was thus divested of jurisdiction on the date of
removal, and WCCC's two post-removal orders are VOID.
Further, both Plaintiff's motion to reinstate and
Defendants' motion to dismiss turn on whether Plaintiff
properly served Defendant under Michigan law. In finding that
Plaintiff timely served Defendant and that Defendant received
actual notice of the action, this Court GRANTS
Plaintiff's motion to reinstate and DENIES
Defendants' motion to dismiss.
Removal and Jurisdiction
turning to the parties' pending motions, the Court must
first establish that the case is properly before this Court.
The question here is whether a case that has been dismissed
in state court with a pending motion to reinstate may still
be properly removed to federal court.
courts may hear “any civil action brought in a State
court, ” so long as three conditions are met: 1) the
district court would have original jurisdiction over the
claim had it been brought in federal court; 2) the district
court represents “the district and division embracing
the place” where the suit was removed from state court;
and 3) the action before the court was pending at the time of
removal. See 28 U.S.C. § 1441(a). Here,
Plaintiff challenges the third component of proper removal,
arguing that this case was not “pending” within
the meaning of § 1441 because, when Defendants removed
this action, WCCC had not yet reinstated the case after its
May 23 dismissal. (See ECF No. 12, PageID.260.) The
remedy for improper removal is a remand to state court.
Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910,
913 (6th Cir. 2007).
removal, the district court must “take up the case
where the State court left it off.” Chaz Const.,
LLC v. Codell, 137 Fed.Appx. 735, 742-43 (6th Cir.
2005). Because this Court “inherited the entire case
upon removal, ” id., we look to the state
court docket prior to removal to determine the posture of the
case in federal court.
removed this case after WCCC dismissed it for improper
service. At the time of removal, Plaintiff's motion to
reinstate had been pending before WCCC for nineteen days.
(ECF No. 9-2, PageID.185.) The posture of this case “on
removal” is therefore: dismissed with a pending motion
for reinstatement. See Burniac v. Wells Fargo Bank,
N.A., 810 F.3d 429, 433 (6th Cir. 2016) (quoting
Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto
Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S.
423, 438 (1974)). As such, the question is whether a
dismissed case with a pending motion for reinstatement is
“pending” within the meaning of 28 U.S.C.
Sixth Circuit has not spoken to this question. The Seventh
Circuit, however, recently analyzed the term
“pending” in a similar suit. In Yassan v.
J.P. Morgan Chase & Co., the state court dismissed a
case for want of prosecution after the plaintiff's
counsel failed to appear at a status hearing. 708 F.3d 963,
965 (7th Cir. 2013). Unaware of the dismissal, the defendant
removed the case to federal court on the following day.
Id. The question was thus whether “a case
dismissed for want of prosecution on the previous day in
state court can still be considered pending there.”
Id. at 968. While the Seventh Circuit could not find
a “federal ...