Twaddell v. Standard Security Life Insurance Company of New York

Filing 11

MEMORANDUM ORDER re 6 MOTION to Remand filed by Willard G. Twaddell is GRANTED. Signed by Judge Leonard P. Stark on 3/21/16. (ntl)

IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLARD G. TWAD DELL,
Plaintiff,
Civil Action No. 15-564-LPS

v.

STANDARD SECURITY LIFE
INSURANCE COMPANY OF NEW
YORK,
Defendant.
MEMORANDUM ORDER
At Wilmington this 21st day of March, 2016:
Pending before the Court is Plaintiffs Motion to Remand. (D.I. 6) Having reviewed the
parties' submissions (D.I. 7, 8, 9, 10), IT IS HEREBY ORDERED THAT Plaintiffs' Motion to
Remand (D .I. 6) is GRANTED.
1.

On February 17, 2015, plaintiff Willard G. Twaddell ("Plaintiff''), a resident of

Delaware, filed a civil action (D.I. 1 Ex. 1 at 9) (hereinafter "Complaint") against Standard
Security Life Insurance Company of New York ("SSLI" or "Defendant"), in the Superior Court
of Delaware in and for New Castle County. (D.I. 1 at ifif 1, 4) On March 3, 2015, service of the
Summons and Complaint was made on the Delaware Insurance Commissioner, which was
SSLI' s statutory agent for service of process. (D.I. 7 at 1) On March 9, 2015, the Department of
Insurance mailed the Summons and Complaint to Corporation Trust Company ("CTC"), SSLI's
registered agent for service of process. (D.I. 7 Ex. C) On June 4, 2015, SSLI received a letter

from Plaintiffs attorney including the Summons and Complaint. (D.I. 8 Ex. A at if 5) SSLI

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represents that it "has no record of ever receiving the Summons and Complaint from CTC or
anyone else prior to receiving them when SSLI received the June 4 Letter." (Id. at if 8)
2.

Defendant filed a Notice of Removal in this Court on July 1, 2015 , contending

this Court has subject matter jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332(a).
(D.I. 1) On July 27, 2015 , Plaintiff filed the Motion to Remand (D.I. 6), arguing that, pursuant to
28 U.S .C. § 1446(b)(l), Defendant's Notice of Removal was not timely and, further, that it is not
clear from the face of the Complaint that the amount in controversy exceeds the $75,000
jurisdictional threshold of 28 U.S.C. § 1332(a). (See D.I. 7 at 2-3)
3.

Pursuant to 28 U.S.C. § 1441 , a defendant in a state court proceeding may have

the right to remove such a case to federal court if, based upon the face of the filed pleadings,
subject matter jurisdiction would have existed in federal court for the plaintiffs claims. Where
federal subject matter jurisdiction is based on diversity, there must be both complete diversity of
the parties and the requisite jurisdictional amount of at least $75,000. See 28 U.S.C. § 1332(a).
"The notice of removal of a civil action or proceeding shall 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 .. . ." 28 U.S.C.
§ 1446(b)(1 ). The removal statute is "strictly construed against removal and all doubts should be
resolved in favor ofremand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
4.

The Court agrees with Plaintiff that Defendant did not timely file its Notice of

Removal. As noted in the Affidavit of Alison Galante, submitted by Defendant, the record
includes evidence that the Summons and Complaint was mailed to CTC - Defendant' s registered

agent for service of process - on March 9, 2015 . (D.I. 8 Ex. A at if 8) Even Defendant

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acknowledges that "service on SSLI' s registered agent for service of process in Delaware may
potentially begin the running of the removal period." (D.I. 8 at 9) See also Edling v. !MI Sys.,
Inc., 2002 WL 240135 (N.D. Tex. Feb. 15, 2002) (" [A] defendant' s time for removal begins to

run from the date of plaintiffs service on the defendant's registered agent"); Barr v. Zurich Inc.
Co., 985 F. Supp. 701 , 702 (S.D. Tex. 1997) ("[A] s a general rule, a complaint is considered

received by a corporation when it is received by an agent authorized to accept service of
process."). Importantly, Defendant does not deny that CTC received the Complaint and
Summons, and " [t]he common law has long recognized a presumption that an item properly
mailed was received by the addressee." In re Cendant Corp. Prides Litig., 311 F .3d 298, 304 (3d
Cir. 2002). Instead, Defendant argues only that it did not receive the Summons and Complaint
until June 4, 2015. (D.I. 8 Ex. A at ii 8) Whether or not Defendant itselfreceived the Summons
and Complaint from its registered agent is not the relevant inquiry; in Delaware, service on a
foreign corporation' s registered agent constitutes service on the foreign corporation. See 8 Del.
C. § 376(a). Because the Summons and Complaint was mailed to Defendant' s registered agent
(CTC) on March 9, 2015, it is presumed to have been received by CTC, and Defendant does not
dispute that it was in fact received by CTC. Hence, the Court - resolving all doubts in favor of
remand, see Boyer, 913 F.2d at 111 - concludes that Defendant's Notice of Removal was not
timely filed within 30 days ofreceipt of the Summons and Complaint. '

'Defendant also points to evidence that the Department of Insurance sent the Summons
and Complaint to Corporation Service Company ("CSC") - as opposed to CTC - which was not
SSLI' s registered agent for service of process. (See D.I. 8 Ex. A at ii 6) Even if the Department
of Insurance mistakenly mailed the Summons and Complaint to CSC, on or around April 9, 2015
(see D.I. 1 Ex. 1 at 3), that does not detract from the evidence that the Department had earlier (on
or around March 9) mailed these materials to SSLI' s actual registered agent, CTC (see D.I. 7 Ex.
C).
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5.

Having found that Defendant' s Notice of Removal was untimely under 28 U.S.C.

§ 1446(b)(1 ), the Court need not resolve the parties ' further dispute regarding the amount in
controversy. Nor need the Court address whether service on the Department of Insurance, as the
statutory agent for SSLI, would be sufficient to start the clock on a Notice of Removal.

HONO
LE LEONARD P. STARK
UNITED STATES DISTRICT JUDGE

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