Farrey's Wholesale Hardware Co., Inc. v. Zurich American Insurance Company

Filing 29

ORDER denying 11 Plaintiff's Motion to Remand. Signed by Magistrate Judge Jonathan Goodman on 12/27/2016. (jf00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 16-23956-CIV-GOODMAN
[CONSENT]
FARREY’S WHOLESALE HARDWARE
CO., INC.,
Plaintiff,
v.
ZURICH AMERICAN INSURANCE
COMPANY,
Defendant.
_____________________________________/
ORDER 1 DENYING PLAINTIFF’S MOTION TO REMAND TO STATE COURT
Singer/songwriter Billy Joel musically lamented that “honesty is such a lonely
word, everyone is so untrue.” 2 (emphasis added). In the same song, he complained that
“honesty is hardly ever heard” and “[]if you look for truthfulness, you might as well be
blind.” (emphasis added). But as reflected in the removal/remand issues raised in this
1

The Undersigned initially issued a Report and Recommendations [ECF No. 25]
on the motion to remand. After that Report was uploaded, the parties consented to my
full jurisdiction in this case [ECF No. 26] and United States District Judge Jose E.
Martinez then referred [ECF No. 27] the case to me for all purposes. Following that, I
vacated [ECF No. 28] the earlier Report, and this Order is simply a conversion of the
earlier-issued Report and Recommendations into an order. Other than the title, this
footnote, the term “ordered” (instead of “recommended”) and the date, this Order is
identical to the earlier-issued Report.
2

BILLY JOEL, Honesty, on 52ND STREET (Columbia 1978).
1

case, Billy Joel appears to be somewhat of a pessimist. Not everyone is dishonest, and
truthfulness is in fact sometimes heard.
The case background that triggered my brief stroll down the Piano Man’s
musical memory lane is straightforward:
Plaintiff Farrey’s Wholesale Hardware Co., Inc. (“Farrey’s”) filed a Motion to
Remand to State Court (“Motion”) [ECF No. 11] and Defendant Zurich American
Insurance Company (“Zurich”) filed an opposition response [ECF No. 19]. Plaintiff filed
a reply [ECF No. 20] and then filed an Amendment [ECF No. 21] to its reply. For the
reasons explained below, the Undersigned denies the motion to remand.
Farrey’s remand motion is based on the theory that Zurich’s removal was
untimely. Specifically, Farrey’s motion argues that Zurich did not remove this case
within 30 days of April 12, 2016, which, pursuant to 28 U.S.C. § 1446(b)(3), would make
it untimely. Farrey’s motion uses the April 12, 2016 date because it is when Farrey’s
filed a Civil Remedy Notice of Insurer Violations (“CRN”) against Zurich, asserting
various alleged acts of bad faith and statutory violations. Farrey’s claims that the CRN
contained enough information to put Zurich on notice that the amount in controversy
exceeded $75,000. Farrey’s motion further argues that this CRN notice is the type of
“other paper” from which a defendant may learn that a state court action is removable. 3
3

Section 1446(b)(3) provides that “if the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended pleading, motion,
2

In its response, Zurich notes that the CRN was received before it was served
with the Complaint, thus eliminating any possible argument that the CRN constituted
an “other paper” which started the 30-day clock for removal. 4 Zurich contends that the
operative “paper” which started the 30-day clock is actually a demand letter it received
on August 17, 2016. Zurich filed its removal on September 15, 2016, within 30 days of its
receipt of Farrey’s demand letter.
In its Reply, Farrey’s argues that Zurich was served with the Amended
Complaint on April 11, 2016, two days before it received the CRN on April 13, 2016. It
points to its service of process exhibit demonstrating that the Amended Complaint was
order or other paper from which it may first be ascertained that the case is one which is
or has become removable." 28 U.S.C. § 1446(b)(3) (emphasis added).
For an “other paper” to start the thirty-day time period under Section 1446(b)(3),
a defendant must receive the “other paper” after receiving the initial pleading. See
Goldstein v. GFS Market Realty Four, LLC, No. 16-cv-60956, 2016 WL 5215024, at * 5 (S.D.
Fla. Sept. 21, 2016) (internal citation omitted); MIR Convenience Store, Inc. v. Century Sur.
Co., No. 0:14-cv-60425, 2014 WL 2118878, at *2 (S.D. Fla. May 21, 2014) (“[b]y its plain
terms the statute requires that if an ‘other paper’ is to trigger the thirty-day time period
of the second paragraph of § 1446(b), the defendant must receive the ‘other paper’ only
after it receives the initial pleading.”) (internal marks and citation omitted).
4

See also Thompson v. Columbia Sussex Corp., No: 2:16-cv-435-FtM-29CM, 2016 WL
6134868, at *2 n. 4 (M.D. Fla. Oct. 21, 2016) (“It is immaterial that, prior to being served
with the Complaint, Defendant may have had dozens of papers and documents . . .
demonstrating that Plaintiffs were domiciled in Arizona . . . . [P]re-suit documents do
not constitute ‘other papers’ that trigger the thirty-day limitation on removal.”) (internal
citations and marks omitted); Village Square Condo. of Orlando, Inc. v. Nationwide Mut.
Fire Ins. Co., No. 6:09-cv-01711, 2009 WL 4855700, at *3 (M.D. Fla. Dec. 10, 2009) (“By its
plain terms the statute requires that if an ‘other paper’ is to trigger the thirty-day time
period of the second paragraph of § 1446(b), the defendant must receive the ‘other
paper’ only after it receives the initial pleading.”) (internal citation omitted).
3

accepted by the Chief Financial Officer of the State of Florida on April 11, 2016.
Therefore, as Farrey’s posited in its Reply, the CRN does qualify as an “other paper”
(because it was received after the operative pleading).
However, in its Amendment, Farrey’s candidly explained that subsequent legal
research revealed the following:
in cases involving removal/remand issues where service was made
through the CFO, other District Courts in Florida have held the operative
30-day time period runs from either the date of mailing/forwarding of
process by the CFO to the insurance company or the date of actual receipt
of service by the insurance company. See, e.g. Clena Investments. Inc. v. XL
Specialty Ins. Co., 2011 WL 1467216 (S.D. Fla. 2011); Masters v. Nationwide
Mut. Fire. Ins. Co., 858 F. Supp. 1184 (M.D. Fla. 1994); Sands Point[] Ocean
Beach Resort and Condominium Association, Inc. v. QBE Ins. Co., 2007 WL
1805795 (S.D. Fla. 2007).
[ECF No. 21, p. 2]. 5
Therefore, based on recent decisions by other judges in this district, the CRN
which Farrey’s initially argued had been received after the pleading was served was
actually received before the pleading was served on Zurich. Thus, it cannot be an “other
paper” triggering the 30-day clock. And as a result of this development, the “other
paper” is actually the later-dated demand letter -- which means that the removal was
timely. And that, in turn, means that the remand motion should be denied.
5

In Sands Point Ocean Beach Resort and Condominium Association, Inc., United States
District Judge Cecilia M. Altonaga noted the “[t]he shift toward interpreting the thirtyday removal period as beginning when a defendant receives a complaint and summons
appears to be the majority position” and further concluded that this shift is
“persuasive.” 2007 WL 1805795, at *1 (emphasis supplied).
4

At a December 2, 2016 discovery hearing, Farrey’s counsel candidly discussed
the disclosure mentioned in the Amendment, conceded that the remand motion should
probably be denied (because of the decisions cited in its Amendment). 6 [ECF No. 23].
Given this procedural posture, the Undersigned denies the remand motion.
DONE AND ORDERED in Chambers, in Miami, Florida, on December 27, 2016.

Copies furnished to:
All counsel of record

6

The Undersigned appreciates the candor of Farrey’s counsel and further
appreciates the professionalism of counsel for both sides in discussing this issue, and
others, at the December 2, 2016 hearing. That Friday afternoon discovery hearing
(which also involved a frank discussion about the remand motion) was an excellent
way to end the official work week.
5