Davis v. Cotton States Mutual Insurance Company

Filing 19

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 7/24/2013. (KAM, )

FILED
2013 Jul-25 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
BERNIEDA DAVIS,
Plaintiff,
vs.
COUNTRY CASUALTY
INSURANCE COMPANY,
Defendant.

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CASE NO. 6:13-cv-513-SLB

MEMORANDUM OPINION
This case is currently before the court on plaintiff Bernieda Davis’s (“plaintiff”)
Motion to Remand, (doc. 3)1 and Motion to Strike, (doc. 9). Upon consideration of the
record, the submissions of the parties, the relevant law, and the arguments of counsel, the
court is of the opinion that both the Motion to Remand and the Motion to Strike are due to
be denied.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed her Complaint against Cotton States Mutual Insurance Company
(“defendant” or “Cotton States Mutual”)2 in the Circuit Court of Marion County, Alabama,

1

Reference to a document number, (“Doc. ___”), refers to the number assigned to each
document as it is filed in the court’s record.
2

Though defendant is named in the Complaint as Cotton States Insurance, (see doc. 1-1
at 2), and is listed on the court’s docket as Cotton States Mutual Insurance Company, defendant
clarifies in its Response to Motion to Remand, (doc. 6), that its actual name is “COUNTRY
Casualty Insurance Company,” and that it is the successor in interest to “Cotton States Mutual
Insurance Company,” (id. at 4), the company that plaintiff has brought suit against.

on December 19, 2012. (See doc. 1-1 at 2.) The Complaint alleges that plaintiff was insured
by defendant at all times relevant to her claims, and that she continues to be insured by
defendant. (Id. ¶ 5.) It further alleges that the policy defendant issued to her provided
coverage for fire loss to her dwelling, that she suffered fire loss, that she made a timely claim
for coverage, and that defendant refused to provide coverage for her loss. (Id. ¶¶ 5-9.)
Based on these facts, plaintiff brings two counts against defendant: (1) breach of contract,
and (2) bad faith. (Id. ¶¶ 10-22.)
Plaintiff claims that on January 1, 2013, she “sought and obtained service of process
on [defendant] . . . through Cotton States’ registered agent, CT Corporation.” (Doc. 4 at 1.)
There is no dispute that on January 7, 2013, CT Corporation signed the certified mail receipt
sent to it by plaintiff. (See doc. 1-1 at 9.) However, the process was addressed to “Cotton
States Insurance,” as opposed to “Cotton States Mutual Insurance,” and CT Corporation
promptly returned the documents with a letter on the same day (i.e., January 7, 2013), stating
that “[o]ur records indicate that we represent more than one entity beginning with the name:
(Cotton States Insurance). In order that we may properly process the enclosed documents(s)
[sic], we must be provided with the full name of the entity for which it is intended.” (Id. at
11.)3 Approximately a month-and-a-half later, on February 20, 2013, plaintiff resent a copy
3

Because the court has referenced the letter, it is worth noting at this point that plaintiff
filed a Motion to Strike the document, (see doc. 9), which was originally filed as Exhibit C to
defendant’s Notice of Removal, (see doc. 1-1 at 10-11). In her Motion, plaintiff argues that the
Exhibit has not been authenticated under Federal Rule of Evidence 901, and that it contains
impermissible hearsay under Federal Rule of Evidence 802. (Doc. 9 at 1.) In response,
defendant supplemented the record by filing an Affidavit of CT Corporation’s “Representation
2

of the original Summons and Complaint to CT Corporation, addressing it to “Cotton States
Mutual Insurance Co.” (Doc. 1-1 at 18.) On March 18, 2013—within 30 days of February
20, 2013, but not within 30 days of January 7, 2013—defendant filed a Notice of Removal
with this court. (See doc. 1.) On April 4, 2013, plaintiff filed a Motion to Remand, (doc. 3),
arguing that removal was not timely under 28 U.S.C. § 1446(b), (id. ¶ 2). Defendant
responded, arguing that the time for removal under § 1446(b) started on February 20, 2013,
when it received notice of the lawsuit, as opposed to January 7, 2013, when the Complaint
and Summons were first delivered to CT Corporation. (Doc. 6 at 1-3.) Thus, the parties’
main disagreement rests on whether defendant was properly served on January 7, 2013.
The court held a hearing on the Motion to Remand on June 10, 2013, (see doc. 7), but
it informed the parties that it needed additional evidence in order to make a determination.
Accordingly, it issued an Order, (see doc. 12), requiring each of the parties to submit
supplemental evidence. On June 28, 2013, defendant submitted evidence showing that CT
Corporation represents three companies containing the name “Cotton States,” two of which
are insurance companies: Cotton States Life Insurance Company and Cotton States Mutual
Insurance Company. (Doc. 13-2 ¶ 4.) In addition, defendant’s supplemental evidence

Services Advisor,” which authenticates and attaches as an Exhibit the letter that is the subject of
plaintiff’s Motion to Strike. (See doc. 11; doc. 11-1.) After reviewing the parties’ arguments and
the relevant documents, the court has determined that the letter should not be stricken—primarily
because before she moved to strike it, plaintiff herself relied upon it in her Brief in Support of
Motion to Remand. (Doc. 4 at 2.) Accordingly, the Motion to Strike will be denied.
3

establishes that COUNTRY Mutual Insurance Company4 owns or owned a portion of both
Cotton States Mutual Insurance Company and Cotton States Life Insurance Company. (Doc.
13-1 ¶¶ 2-3.) However, there is no evidence that any of these affiliated companies were
aware of the lawsuit earlier than February 20, 2013: an Affidavit from CT Corporation’s
Representation Services Advisor states that CT Corporation’s policy is to reject service and
request more information if it cannot identify the entity that is being served, (doc. 13-2 ¶ 6),
and an Affidavit from the Assistant General Counsel for Illinois Agricultural Association,
the parent company of COUNTRY Mutual Insurance Company and its affiliated entities,
states that the first time COUNTRY Mutual or any of its affiliated entities became aware of
the pending lawsuit was on February 20, 2013, (doc. 13-1 ¶¶ 1, 5). Finally, plaintiff’s
supplemental evidence shows that counsel for plaintiff did in fact receive the letter sent by
CT Corporation stating that it could not identify the entity being served, and that receipt
occurred at some point between January 7, 2013, and January 31, 2013. (Doc. 14-1 ¶¶ 3-5.)
II. DISCUSSION
A. Requirements of Removal
Pursuant to 28 U.S.C. § 1441(a),
any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or
the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.

4

As noted earlier, COUNTRY Mutual Insurance Company is the entity defending this

action.
4

Accordingly, “when an action is removed from state court, the district court first must
determine whether it has original jurisdiction over the plaintiff’s claims.” Univ. of S. Ala.
v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (citing Cabalceta v. Standard Fruit
Co., 883 F.2d 1553, 1556-57 (11th Cir. 1989)). A removing defendant carries the burden of
establishing the propriety of removal under § 1441 and, therefore, must establish the
existence of federal jurisdiction. Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th
Cir. 2002) (citation omitted). Because federal jurisdiction is limited, the Eleventh Circuit has
held that cases removed from state court are to be remanded “where federal jurisdiction is
not absolutely clear.” See Lowe’s OK’d Used Cars, Inc. v. Acceptance Ins. Co., 995 F. Supp.
1388, 1389 (M.D. Ala. 1998) (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994)).
The statute governing removal, 28 U.S.C. § 1446(b), makes removal proper in two
instances. In the first instance, which is delineated in § 1446(b)(1) (formerly referred to as
“first paragraph removal”), removal is based upon the plaintiff’s initial pleading.5 Under
§ 1446(b)(1), the notice of removal must be filed “within 30 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 . . . .” Cases may also be
5

Prior to the Federal Courts Jurisdiction and Venue Clarification Act of 2011, PL 11263, 125 Stat. 758, § 1446(b) did not contain subsections distinguishing between what is now
§ 1446(b)(1) removal and § 1446(b)(3) removal. What is now § 1446(b)(1) was found in the
“first paragraph” of the former § 1446(b), and § 1446(b)(3) was found in the “second paragraph.”
Despite the stylistic changes to the statute, the substance of removal procedure remains
unchanged.
5

removed under § 1446(b)(3) (formerly referred to as “second paragraph removal”). A case
not initially removable under § 1446(b)(1) may be removed under § 1446(b)(3) if the
defendant files a notice of removal “within 30 days after receipt . . . of a copy of an amended
pleading, motion, order or other paper from which it may first be ascertained that the case
is one which is or has become removable.”
In this case, plaintiff does not appear to contest the existence of diversity jurisdiction,
(doc. 3 ¶ 2; doc. 4 at 2), and defendant has properly alleged its existence, carrying its burden
and establishing that the parties are diverse and that the amount in controversy exceeds
$75,000, (doc. 1 ¶¶ 7, 10-19). Accordingly, the court is satisfied that it has original
jurisdiction over the action. Instead, the issue here is one of whether service on defendant
was proper on January 7, 2013, in which case defendant would not have removed within the
30-day requirement of § 1446(b).6

6

Though not entirely clear in its Response, it appears that defendant actually relies on 28
U.S.C. § 1446(b)(3). However, this is not the correct section for defendant to rely on under these
facts. The issue here is not whether the case became removable because either (1) the facts
changed or (2) plaintiff amended her Complaint to allege new facts that were not in her original
Complaint. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 760, 760 n.16 (11th Cir. 2010)
(noting that this section of § 1446 encompasses situations where facts change and a case becomes
removable, as well as those where “the actual facts supporting federal jurisdiction remain
unaltered from the initial pleading, but their existence has been manifested only by later papers,
revealing the grounds for removal for the first time” (quoting Lovern v. Gen. Motors Corp., 121
F.3d 160, 162 (4th Cir. 1997))). Rather, the issue is one of when, if ever, service was perfected,
and whether defendant removed within the 30-day time frame under 28 U.S.C. § 1446(b)(1).
While there might conceivably be an argument under 28 U.S.C. § 1446(b)(3), discussion of
removal under 28 U.S.C. § 1446(b)(1) is the clearer choice on the facts of this case.
6

B. Adequacy of Service of Process
Plaintiff argues that removal is untimely because she properly served defendant’s
registered agent, CT Corporation, on January 7, 2013. (Doc. 4 at 1-3.) She states that under
Alabama law, a corporation may designate an agent to receive process by certified mail on
its behalf, and that receipt by the agent, as in this case, constitutes effective service. (Id. at
4 (citing Ala. R. Civ. P. 4(c)(6)).) Therefore, she argues that because CT Corporation signed
the receipt of service on January 7, 2013, it cannot “attempt unilaterally to ‘un-do’ service
by ‘returning’ the summons and complaint.” (Id.) Finally, in support of her arguments,
plaintiff also cites to several cases which she claims have similar facts. See Aranda v.
Foamex Int’l, 884 F. Supp. 2d 1186 (D.N.M. 2012); Lowengart v. Cephus Capital Mgmt.,
LLC, 677 F. Supp. 2d 1280 (N.D. Ala. 2009); Mastec Latin Am. v. Inepar S/A Industrias E
Construcoes, 03 CIV 9892 (GBD), 2004 WL 1574732 (S.D.N.Y. July 13, 2004); Recyclers
Consulting Grp., Inc. v. IBM-Japan, Ltd., 96 CIV. 2137 (JFK), 1997 WL 615014 (S.D.N.Y.
Oct. 3, 1997).7
In contrast, defendant argues that February 20, 2013, when plaintiff resent process
with the correct name listed to CT Corporation, is the date that the 30-day time period for
removal should be measured from.8 (Doc. 6 at 2-3.) It argues that it was not until this date

7

Defendant observes, and the court agrees, that each of these cases is distinguishable
from the situation here.
8

At the first telephone hearing on June 10, 2013, the court questioned counsel for the
parties about whether actual service of process was sent on February 20, 2013, or whether CT
Corporation was simply sent a copy of the Summons and Complaint from the first attempted
7

that CT Corporation could “ascertain with certainty” that defendant was the client that had
been served. (Id.) In addition, it distinguishes the cases cited by plaintiff, noting that
Lowengart v. Cephus Capital Management., LLC, 677 F. Supp. 2d 1280 (N.D. Ala. 2009),
only addressed a minor spelling error in the defendant’s name, (doc. 6 at 3), while the
others—Mastec Latin America v. Inepar S/A Industrias E Construcoes, 03 CIV 9892 (GBD),
2004 WL 1574732 (S.D.N.Y. July 13, 2004), and Recyclers Consulting Group., Inc. v. IBMJapan, Ltd., 96 CIV. 2137 (JFK), 1997 WL 615014 (S.D.N.Y. Oct. 3, 1997)—addressed
situations where the defendant had contracted with the plaintiff to designate a particular
registered agent, but neglected to actually retain or inform the agent, (doc. 6 at 1-2).
Accordingly, when the agent received process, it was returned to the plaintiff in each case.
(Id. at 2.) Defendant notes that though these courts found service to have been proper, the
difference between these cases and its own is that here, CT Corporation was actually
designated as its registered agent; it did not fail to appoint an agent.9 Id.
service. Counsel stated that they believed it had just been a copy, and this appears to be correct,
(see, e.g., doc. 13-2 at 4 (Summons with date of December 19, 2012)), though plaintiff did
resend the copy by certified mail, (see doc. 13-2 at 3; id. at 11). Accordingly, the court notes that
it is possible defendant never received formal service at all, assuming that the January 7, 2013
attempt at service was not proper. However, because counsel for defendant stated that it
considered service effected as of February 20, 2013, the issue is not one that the court will
address.
9

The inference in defendant’s argument is that in each of those cases, the court’s
conclusion primarily rested upon the fact that the defendant’s failure to receive notice of the
lawsuit against it was due to its own error. Conversely, here, it was not defendant’s own mistake
that caused CT Corporation to return process to plaintiff; rather, it was due to an error on
plaintiff’s part. In addition, while defendant does not distinguish Aranda v. Foamex
International, 884 F. Supp. 2d 1186 (D.N.M. 2012), a case cited by plaintiff to support the
proposition that “the erroneous naming of a party in the caption [is] a technical defect,” (doc. 4 at
8

After thoroughly reviewing the parties’ arguments, the court agrees with defendant
that the case is not due to be remanded. Despite the presumption in favor of remand and the
burden on the defendant to show that removal is proper, see Leonard, 279 F.3d at 972, there
is also a burden on the plaintiff to show that service is proper, see Hyundai Merch. Marine
Co. v. Grand China Shipping (Hong Kong) Co., 878 F. Supp. 2d 1252, 1263 (S.D. Ala. 2012)
(“Once the sufficiency of service is brought into question, the plaintiff has the burden to
prove proper service of process.” (quoting Cornwall v. Miami-Dade County Corr. & Rehab.
Dept., No. 10–23561–CIV, 2011 WL 3878352, at *2 (S.D. Fla. Aug. 31, 2011))); Truss v.
Chappell, 4 So. 3d 1110, 1112 (Ala. 2008) (“When service of process is contested, the
plaintiff bears the burden of establishing proper service of process.”). Here, because the
issue is really not one of removal, but rather is one of service, the burden is on plaintiff to
show that service was proper on January 7, 2013.
State law governs service of process that occurs before removal. See Rentz v. Swift
Transp. Co., 185 F.R.D. 693, 696 (M.D. Ga. 1998) (“The Court may consider the sufficiency
of service of process after removal by first determining whether the plaintiff had complied
with the state law provisions governing service of process during the period in which the
action was pending in state court.” (citing Usatorres v. Marina Mercante Nicaraguenses,

5), it is also distinguishable. The most obvious difference is that in that case, the court found that
the defendant was probably given a “heads up” by the registered agent that it was being sued.
(Id. at 1197.) In addition, the company that was named on the summons and the company that
was the correct defendant were essentially one and the same entity, and both were named in the
complaint so that the registered agent at least had reason to know which company was meant to
be the recipient of the summons and complaint. (Id. at 1194, 1196.)
9

S.A., 768 F.2d 1285, 1286 n. 1 (11th Cir. 1985))). Accordingly, here the court looks to
whether service was sufficient under Alabama law in order to determine whether defendant’s
subsequent removal was timely. The Alabama Rule of Civil Procedure addressing service
of process for corporations or other entities states that service may be perfected
[u]pon a domestic or foreign corporation or upon a partnership, limited
partnership, limited liability partnership, limited liability company, or
unincorporated organization or association, by serving an officer, a
partner (other than a limited partner), a managing or general agent, or
any agent authorized by appointment or by law to receive service of
process.
Ala. R. Civ. P. 4(c)(6). Further, Alabama Rule of Civil Procedure 4(i)(2)(C) states that
[s]ervice by certified mail shall be deemed complete and the time for
answering shall run from the date of delivery to the named addressee
or the addressee’s agent as evidenced by signature on the return
receipt. Within the meaning of this subdivision, “agent” means a person
or entity specifically authorized by the addressee to receive the
addressee’s mail and to deliver that mail to the addressee. Such agent’s
authority shall be conclusively established when the addressee
acknowledges actual receipt of the summons and complaint or the court
determines that the evidence proves the addressee did actually receive
the summons and complaint in time to avoid a default. An action shall
not be dismissed for improper service of process unless the service
failed to inform the defendant of the action within time to avoid a
default. In the case of an entity included in one of the provisions of
Rule 4(c), “defendant,” within the meaning of this subdivision, shall be
such a person described in the applicable subdivision of 4(c).
Ala. R. Civ. P. 4(i)(2)(C) (emphasis added).
Though it might seem that under the literal terms of the statute, plaintiff properly
served defendant by sending the process to its undisputed and “specifically authorized”
agent, the analysis does not end there. It is a well-known principle of agency law that an
10

agent may be appointed to a specific task for a particular purpose and may hold a role as the
principal’s agent for some limited purposes, but not for others. See Farm Credit of Nw. Fla.,
ACA v. R & B Const. of S. Ala., Inc., CIVA 08-0439-WS-C, 2009 WL 3245818, *1 n.3 (S.D.
Ala. Oct. 5, 2009) (“[T]he mere fact that a person acts as the defendant’s agent for some
purposes does not necessarily mean that the person has authority [for all purposes].” (citation
omitted)). In accordance with that principle, here, CT Corporation was not in fact acting as
Cotton States Mutual Insurance Company’s agent when it signed the certified mail receipt
on January 7, 2013: it was only appointed as the registered agent for Cotton States Mutual
(meaning, it only had authority) in cases where service of process was sent to Cotton States
Mutual.
The statute above clearly states that service should be deemed complete “from the date
of delivery to the named addressee or the addressee’s agent.” Ala. R. Civ. P. 4(i)(2)(C).
Here, however, the “named addressee,” was the incorrect defendant (albeit a nonexistent
one); accordingly, CT Corporation could not have been acting as the agent for Cotton States
Mutual, who was not the addressee, when it signed the certified mail receipt. Implicit in the
terms of the statute is the requirement that the “addressee” be correctly identified so that the
agent knows on whose behalf it is acting. It is even more important to correctly identify the
addressee in a situation such as the one in this case, where the agent (here, CT Corporation)
operates as the authorized agent for more than one entity. A plaintiff should not be allowed
to misname the defendant and still assume that the registered agent acts for him or her when

11

accepting service. Said differently, if the plaintiff misnames the defendant so that the agent
cannot ascertain its identity, the agent is not operating as the intended defendant’s agent at
all for purposes of service; the agent must be aware—or at least have reason to know—of on
whose behalf it is accepting service.10 Moreover, the rationale behind the requirement in
both the Federal Rules and the Alabama Rules that an authorized or general agent is required
to receive process, as opposed to just any employee, is to ensure that the defendant receives
notice of a lawsuit against him. See Green v. Pike Manor, Inc., 431 So. 2d 1316, 1317 (Ala.
Civ. App. 1983) (“The rationale of all rules for service of process on corporations is that
service must be made on a representative . . . as to make it a priori supposable that he will
realize his responsibilities and know what he should do with any legal papers served on
him.”). This basic rationale is not met where a plaintiff sends a summons and complaint to
the registered agent, but the agent cannot discern who the plaintiff is bringing the suit
against. Therefore, because the court finds that CT Corporation was not defendant’s agent
for purposes of accepting a Complaint and Summons that it could not determine was
addressed to defendant, service was not proper. See, e.g., Bank of Am. Corp. v. Edwards, 881

10

This requirement makes sense because, for example, had plaintiff misnamed Cotton
States Mutual in the Summons and Complaint by referring to it as “Cotton States Life Insurance
Company,” no one—whether a party or a court—would claim that plaintiff had properly served
process upon defendant, Cotton States Mutual. Rather, a court would say that service was
improper because plaintiff served the wrong defendant. See, e.g., Allied Products Corp. v.
Thomas, 954 So. 2d 588, 589 (Ala. Civ. App. 2006) (briefly discussing motion to dismiss that
was granted when wrong defendant was served). The result is no different where plaintiff named
a company that does not exist, and from which CT Corporation could not identify the intended
recipient. This, too, was serving the “wrong” defendant.

12

So. 2d 403, 406-08 (Ala. 2003) (no proper service over bank where plaintiff had served its
subsidiary rather than bank’s agent); LVNV Funding, LLC v. Boyles, 70 So. 3d 1221, 1232
(Ala. Civ. App. 2009) (default judgment against defendant void where plaintiff failed to
properly serve agent of defendant).
The fact that plaintiff has not satisfied the service requirements of Rule 4 of the
Alabama Rules of Civil Procedure would alone make service defective (and therefore
removal proper) in this case. See M.M. v. B.L., 926 So. 2d 1038, 1042 (Ala. Civ. App. 2005)
(“Strict compliance regarding service of process is required.” (citing Aaron v. Aaron, 571 So.
2d 1150, 1151 (Ala. Civ. App. 1990); Wright v. Rogers, 435 So. 2d 90 (Ala. Civ. App.
1983))). However, in addition, the court also notes that holding service to be proper here
would cause substantial prejudice to defendant. Though prejudice is primarily a factor that
federal courts look to when determining whether to grant relief from a default judgment
because of some alleged defect in service of process under Federal Rule of Civil Procedure
4, see, e.g., Drill S., Inc. v. Int’l Fid. Ins. Co., 234 F.3d 1232, 1238 (11th Cir. 2000)
(weighing prejudice to defendant), it is also appears to be relevant in the same context when
analyzing whether service was proper under Alabama Rule of Civil Procedure 4, see, e.g.,
LVNV Funding, LLC v. Boyles, 70 So. 3d 1221, 1230 (Ala. Civ. App. 2009) (“[S]ervice of
process ‘was in substantial compliance with the Federal and Alabama Rules of Civil
Procedure and . . . any defects in service of process have not prejudiced [defendant] and are
therefore harmless error.”).

13

Here, prejudice based on the defect in service seems particularly likely because
in a case, such as this one, where the insurance company is not notified by the
designated agent for service of process . . . of a complaint filed against [it], the
insurance company’s rights to removal would begin to run before it is aware
that suit has been brought against it. The United States Supreme Court has
cautioned against such an approach, stating that it would be a strange result ‘to
set removal apart from all other responsive acts, to render removal the sole
instance in which one’s procedural rights slip away before [proper] service of
a summons, i.e., before one is subject to any court’s authority.
Satterfield v. Fortis Benefits Ins. Co., 225 F. Supp. 2d 1319, 1323 (M.D. Ala. 2002)
(emphasis added). Thus, prejudice is an incredibly important consideration in cases with
facts similar to this one because a defendant’s 30-day time window for removal could
potentially run without it ever having been aware of a pending lawsuit. Moreover, here, if
the court were to find in favor of plaintiff, that is exactly what would occur: the evidence
shows that defendant had no knowledge of the pending lawsuit until February 20, 2013.11
(See doc. 13-1 ¶ 5.) Accordingly, the prejudice that defendant would suffer if the court were
to grant plaintiff’s Motion to Remand provides additional support for why plaintiff’s Motion
should be denied.
Lastly, as a broader concern, if service of process addressed to a nonexistent entity,
as it was here, were found to be adequate, future plaintiffs could purposefully run the time
for removal by intentionally sending service to a defendant’s registered agent, but addressing

11

February 20, 2013, is 14 days after the time for removal would have run if service had
been proper on January 7, 2013.

14

it to the wrong name.12 Once service were returned to the plaintiff, he or she could then
resend a copy containing the correct name after the 30-day removal window had closed to
put the defendant on actual notice of the pending lawsuit. Circumventing the right to
removal in such a way is not within the contemplation of § 1446, and both the Eleventh
Circuit and the United States Supreme Court have expressed concern about situations that
could deprive defendants of their right to remove:
[allowing evidence from only plaintiffs to show that a case is removable]
would provide plaintiffs with a trick by which they could make federal
jurisdiction disappear. A diverse plaintiff could defeat federal jurisdiction
simply by drafting his pleadings in a [certain] way . . . . That would subject the
defendant’s right to remove to the caprice of the plaintiff, which the Supreme
Court has said . . . that we should not do. See St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 593, 82 L.Ed. 845 (1938) (“If
[after removal] the plaintiff could . . . reduce the amount of his demand to
defeat federal jurisdiction the defendant’s supposed statutory right of removal
would be subject to the plaintiff’s caprice.”); see also 14B Wright et al.,
Federal Practice and Procedure § 3721, at 60 (“[R]emoval will be upheld
when, by fraud, mistake, inadvertence, or artful pleading the plaintiff has
concealed a legitimate ground of removal.”); S.Rep. No. 109–14, at 9 (2005),
reprinted in 2005 U.S.C.C.A.N. 3, 10 (“The Committee notes that the purpose
of [§ 1446(b) ] is to prevent plaintiffs from evading federal jurisdiction by
hiding the true nature of their case.”).
Pretka v. Kolter City Plaza II, Inc, 608 F.3d 744, 766 (11th Cir. 2010); see also Legg v.
Wyeth, 428 F.3d 1317, 1325 (11th Cir. 2005) (“The removal process was created by Congress
to protect defendants. Congress did not extend such protection with one hand, and with the
other give plaintiffs a bag of tricks to overcome it.” (quoting McKinney v. Bd. of Trustees of
12

The court is not suggesting and does not find that plaintiff in this case intentionally ran
defendant’s time for removal.

15

Mayland Cmty. Coll., 955 F.2d 924, 928 (4th Cir. 1992)) (internal quotation marks omitted)).
These cases and the reasoning behind them also help to solidify the court’s decision that
plaintiff’s Motion is due to be denied.
At its most basic, “the modern conception of service of process is primarily as a notice
giving device,” LVNV Funding, LLC, 70 So. 3d at 1231 (citation omitted), and where notice
is not given due to a mistake on the part of the plaintiff under facts such as those in this case,
the court cannot say that service is proper and require the defendant to suffer the resulting
consequences. See Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d
916, 928 n.14 (11th Cir. 2003) (“[R]eceipt of actual notice is an important factor in
considering whether service of process is adequate.” (citing cases)). Accordingly, because
service was not proper as of January 7, 2013, defendant has properly removed the case to
federal court.
III. CONCLUSION
For the foregoing reasons, the court finds that it has diversity jurisdiction over this
action, and that defendant has timely removed the case to federal court. Plaintiff’s Motion
to Remand, (doc. 3), is therefore due to be denied. Plaintiff’s Motion to Strike, (doc. 9), is
also due to be denied.

An Order denying plaintiff’s motions will be entered

contemporaneously with this Opinion.

16

DONE, this 24th day of July, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

17