Oakdale Mall Associates v. Cincinnati Insurance Company

Filing 15

ORDER - plaintiff's motion to remand 8 is DENIED; plaintiff's motion for leave to file sur-reply 12 is DENIED; defendant's motion to dismiss or alternatively to transfer 2 is DENIED IN PART as it relates to dismissal and GRANTED IN PART as it relates to transfer of this matter to the District of Minnesota; case is TRANSFERRED to the United States District Court for theDistrict of Minnesota for all further proceedings. Signed on 7/13/11 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) [Transferred from Missouri Western on 7/14/2011.]

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
OAKDALE MALL ASSOCIATES,
Plaintiff,
vs.
CINCINNATI INSURANCE CO.,
Defendant.

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No. 11-0562-CV-W-FJG

ORDER
Pending before the Court are (1) Plaintiff’s Motion to Remand and Suggestions in
Support (Doc. No. 8); (2) Defendant’s Motion to Dismiss or Alternatively to Transfer Venue
(Doc. No. 2); and (3) Plaintiff’s Motion for Leave to File Sur-Reply (Doc. No. 12). These
motions will be considered, below.
I.

Background
Plaintiff Oakdale Mall Associates is a limited partnership organized under the laws

of Minnesota, with its principal place of business in Minnesota. At the time period relevant
to this lawsuit, plaintiff owned and operated a shopping center in the City of Oakdale,
Minnesota. Defendant Cincinnati Insurance Co. is an Ohio corporation with its principal
place of business in Ohio. Defendant was the insurer for plaintiff. Plaintiff asserts that the
insurance policy at issue in this case was delivered to it in California, and was approved in
California.
On August 4, 2009, plaintiff discovered that HVAC units in its shopping center had
been damaged, and made an insurance claim for that damage. Defendant denied the
claim based on a policy exclusion which excludes coverage if the property is “vacant” as
defined in the policy.
On March 22, 2011, defendant Cincinnati filed a declaratory judgment action in the
United States District Court, District of Minnesota. Cincinnati Insurance Company v.

Oakdale Mall Associates, Case No. 11-CV-708 PAM/JSM. In that action, Cincinnati
requests an order declaring that it owes no insurance coverage to Oakdale Mall Associates
for the damages sustained to its rooftop HVAC units. On April 14, 2011, plaintiff filed the
current case in the Circuit Court of Jackson County, Missouri, seeking a determination as
to whether the policy provided coverage for the HVAC units and whether plaintiff is entitled
to its costs and attorneys’ fees pursuant to Minn. Stat. § 604.18.
Plaintiff moved to dismiss the declaratory judgment action pending in the District of
Minnesota. However, on June 14, 2011, plaintiff’s motion to dismiss the declaratory
judgment action was denied, and the District of Minnesota has retained jurisdiction over
that matter. See Doc. No. 10, Ex. A (finding, in particular, that “Missouri has no connection
whatever with the parties or the facts underlying this lawsuit,” id. at 4).
II.

Motion to Remand (Doc. No. 8)
As discussed above, plaintiff filed this lawsuit in the Circuit Court of Jackson County,

Missouri, on April 14, 2011. Defendant was served with plaintiff’s petition for damages on
May 23, 2011, and defendant removed this case on June 1, 2011. See Doc. No. 1.
Plaintiff’s only challenge to the removal is an assertion that defendant’s removal was
untimely. Under 28 U.S.C. § 1446, the notice of removal must be filed within thirty 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,
. . . .” Plaintiff alleges that a copy of the petition was “served” on defendant on April 15,
2011, when the petition was provided to defendant’s attorney as an exhibit to a motion to
dismiss filed by plaintiff in the lawsuit pending in the District of Minnesota, Cincinnati
Insurance Company v. Oakdale Mall Associates, Case No. 11-CV-708 PAM/JSM. Plaintiff
asserts that defendant ought to have filed its notice of removal within 30 days of April 15,

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2011.1
Defendant, in response, correctly notes that attaching a state court petition as an
exhibit to a motion in another court is insufficient to trigger the 30-day time limit for removal.
Instead, as the Supreme Court found twelve years ago, formal service of process is a
necessary prerequisite to trigger the 30-day time period for removal. See Murphy Bros. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999). In the current matter, defendant
was formally served on May 23, 2011, and filed its notice of removal on June 1, 2011, wellwithin the 30-day time period for removal.
In plaintiff’s reply, plaintiff continues to mis-construe the law, and further suggests
that prior Western District of Missouri authority has not been overruled by Murphy Bros.
(See Doc. No. 13, p. 3, asserting that Brown v. Mayflower Transit, Inc., 960 F.Supp. 212
(W.D. Mo. 1997), in which Judge Bartlett found that the 30-day period for filing a notice of
removal began to run when defense counsel received a fax copy of a petition, remains
good law.) Although Westlaw and Lexis do not flag Brown v. Mayflower Transit as being
overruled by Murphy Bros., this Court recognizes that Brown has been overruled. Brown
stands for the proposition that mere receipt (without formal service) triggers the 30-day
removal period, whereas Murphy Bros. establishes that there must be formal service before
the 30-day removal period can be triggered. Obviously, this Court cannot follow prior
1

In plaintiff’s reply suggestions to the pending motion to remand (Doc. No. 13),
plaintiff further suggests that defendant “accepted service” when the petition was filed
on ECF as an exhibit to plaintiff’s motion to dismiss the parallel action pending in the
District of Minnesota (see Doc. No. 8, Ex. 1), and that as defendant has not raised an
issue as to improper service of process with respect to that purported ECF service, April
15, 2011 should be considered the date defendant was served. The Court finds this
premise to be seriously flawed. Presumably, defendant did not raise an issue as to
improper service of process because defendant was formally served with process on
May 23, 2011. The Court will not construe plaintiff’s ECF filing in the District of
Minnesota as formal service of process on defendant in the current matter, nor will it
consider defendant to have “accepted service” for failing to guess that plaintiff would
assert that such a filing would constitute formal service of process.
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rulings that reach the opposite result of the Supreme Court.2
Defendant’s notice of removal was timely-filed. Plaintiff’s motion to remand (Doc.
No. 8) is unsupported by existing law, and, therefore, will be DENIED.
III.

Motion to Dismiss or Alternatively to Transfer Venue (Doc. No. 2) and
Plaintiff’s Motion to File Sur-Reply in Opposition (Doc. No. 12)
As an initial matter, plaintiff’s motion for leave to file sur-reply (Doc. No. 12) will be

DENIED, as the Court already possesses sufficient information to reach its decision.
Defendant moves to dismiss the current action as the lawsuit it filed in the District
of Minnesota was filed first and therefore has priority over the current action. Plaintiff
argues that the lawsuit pending in the District of Minnesota was filed shortly after plaintiff
informed Cincinnati that it would file suit if Cincinnati did not pay the claim, in an effort to
deprive Oakdale of its choice of forum. After considering the parties’ arguments, the Court
finds that this action should not be dismissed at this time based on the first-filed doctrine.
In the alternative, defendant moves for a transfer of this case to the United States
District Court, District of Minnesota, pursuant to 28 U.S.C. § 1404(a), which provides “For
the convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought.”
There is no dispute that the action could have been brought in the District of Minnesota, as
a parallel action is already pending there. The Court, therefore, will turn to consideration
of these factors: “the convenience of the parties, the convenience of the witnesses, the
availability of judicial process to compel the attendance of unwilling witnesses, the
governing law, the relative ease of access to sources of proof, the possibility of delay and
2

Although Brown v. Mayflower Transit, Inc. was not flagged on Westlaw and
Lexis as overruled, any lawyer reading the Supreme Court’s opinion in Murphy Bros.
ought to have recognized that Brown had been overruled. Plaintiff’s attorneys are
cautioned that their citation to law that they should have realized was overruled borders
perilously close to sanctionable behavior under Rule 11.
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prejudice if a transfer is granted, and practical considerations indicating where the case can
be tried more expeditiously and inexpensively.” Houk v. Kimberly-Clark Corp., 613 F.Supp.
923, 927 (W.D. Mo. 1985).
A consideration of these factors leads to the firm conclusion that the case must be
transferred to the District of Minnesota. None of the parties are citizens of the state of
Missouri. Instead, the Oakdale Mall is a Minnesota partnership with its principal place of
business in Minnesota, and its partners are citizens and residents of the states of California
and possibly New York and New Jersey.3 Defendant is an Ohio corporation with its
principal place of business in Ohio. Further, the loss at issue in this case occurred in
Minnesota. Therefore, it appears that none of the parties and potential witnesses have any
connection to Missouri that relates to this case whatsoever.4 Accordingly, convenience of
the parties and witnesses favor transfer to the District of Minnesota. The governing law
appears to be Minnesota law; the only other arguably applicable law is California law, as
asserted by plaintiff in its response to the pending motion to transfer. See Doc. No. 9, p.
7. In any event, Missouri law is inapplicable to this matter. There is no indication that there
would be a possibility of delay or prejudice if the transfer is granted, as the District of

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Plaintiff has filed an affidavit in this action claiming that it no longer has a
connection to Minnesota in that Oakdale Mall no longer owns property in the State of
Minnesota or actively conducts business there. See Doc. No. 9, Ex. 1, p. 1. As
discussed by defendant (see Doc. No. 3, p. 8), this statement contradicts the petition, in
which plaintiff alleges its principal place of business is in Minnesota. See Doc. No. 1,
Ex. 1, ¶ 1. The only connection to Missouri identified by plaintiff in this affidavit is that
plaintiff claims that defendant “provides coverage to members of Oakdale Mall
Associates in several location throughout the country, including the Kansas City
metropolitan area.” See Doc. No. 9, Ex. 1, p. 1. The Court agrees with defendant,
however, that this assertion is not specific enough to provide a connection with the
claims made in the current lawsuit.
4

The only apparent connection to the Kansas City, Missouri metropolitan area, in
fact, is that plaintiff’s counsel practices out of Overland Park, Kansas.
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Minnesota is already handling a declaratory judgment action involving the same underlying
facts. Further, there is no indication that the case could be tried more expeditiously and
inexpensively in Missouri.
The Court finds that all relevant factors weigh in favor of transfer, and therefore this
case will be transferred to the District of Minnesota pursuant to 28 U.S.C. § 1404.
IV.

Conclusion
Therefore, for the foregoing reasons:
(1)

Plaintiff’s motion to remand (Doc. No. 8) will be DENIED;

(2)

Plaintiff’s motion for leave to file sur-reply (Doc. No. 12) will be DENIED;

(3)

Defendant’s motion to dismiss or alternatively to transfer (Doc. No. 2) will be
DENIED IN PART as it relates to dismissal, and GRANTED IN PART as it
relates to transfer of this matter to the District of Minnesota; and

(4)

This case is TRANSFERRED to the United States District Court for the
District of Minnesota for all further proceedings.

IT IS SO ORDERED.

/S/ FERNANDO J. GAITAN JR.
Fernando J. Gaitan Jr.
Chief United States District Judge

Dated: 07/13/11
Kansas City, Missouri

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