SAVITAMAGAN, LLC v. SENECA INSURANCE COMPANY, INC.
Filing
16
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 08/08/2016. For the reasons stated herein, Plaintiff's Motion to Remand(Doc. 7 ) is DENIED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SAVITAMAGAN, LLC,
d/b/a ECONOLODGE OF PILOT
MOUNTAIN,
Plaintiff,
v.
SENECA INSURANCE COMPANY,
INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
1:16CV328
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is a Motion to Remand filed by
Plaintiff Savitamagan, LLC (“Plaintiff”). (Doc. 7.)
Defendant
Seneca Insurance Company, Inc., (“Defendant”) has responded,
(Doc. 9), and Plaintiff has replied (Doc. 11).
This matter is
now ripe for resolution, and for the reasons stated herein,
Plaintiff’s Motion to Remand will be denied.
I.
BACKGROUND
This case arises out of an insurance dispute relating to
Defendant’s denial of an insurance claim filed by Plaintiff on
March 20, 2015. The facts of the case itself are not directly
relevant to this motion and will be discussed only briefly.
Plaintiff purchased the Econolodge of Pilot Mountain in January
of 2015. (Complaint (“Compl.”) (Doc. 4) ¶ 7.) Plaintiff contends
the hotel was in good condition at the time of purchase, as well
as at the time that Defendant issued a special forms insurance
policy to Plaintiff for the hotel. (Id. ¶¶ 28-33.) In February
and March of 2015, a snowstorm and heavy rain damaged the roof
of a section of the hotel, causing severe water damage. (Id.
¶¶ 37-38.) As a result, Plaintiff filed an insurance claim with
Defendant, and that claim was denied on September 16, 2015. (Id.
¶ 85.)
Plaintiff filed a Complaint in Surry County Superior Court
on February 16, 2016. (Compl. (Doc. 4).)
Defendant was served
on March 17, 2016, via the Commissioner of Insurance. (Def.’s
Resp. in Opp’n to Pl.’s Mot. to Remand to State Court (“Def.’s
Resp.”) (Doc. 9) at 1.) Counsel for Plaintiff apparently emailed
a copy of the Complaint to counsel for Defendant on March 2,
2016, along with an inquiry about whether counsel for Defendant
was authorized to accept service. (Pl.’s Mot. to Remand, Ex. A
(Doc. 7-1).) It does not appear that inquiry was ever answered,
although Defendant’s counsel acknowledged receipt of the
Complaint. (Id.)
However, in a later email chain, a paralegal
for Defendant’s counsel asserts that Defendant was served
through the Commissioner of Insurance on March 17, 2016. (See
Def.’s Resp., Ex. A (Doc. 9-1) at 1.)
- 2 -
II. ANALYSIS
Under 28 U.S.C. § 1441(b), a party may remove an action to
federal court if the requirements for diversity jurisdiction,
codified in 28 U.S.C. § 1332(a), are met. The removing party
must file a notice of removal within 30 days of:
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, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not
required to be served on the defendant, whichever
period is shorter.
28 U.S.C. § 1446(b).
The issue in this case revolves around the meaning of the
words “or otherwise” in the phrase “receipt by the defendant,
through service or otherwise,” and whether or not the 30-day
clock for removal began to run upon receipt of the Complaint by
Defendant’s counsel via email on March 2, 2016, or when
Defendant was formally served on March 17, 2016.1
This court notes that Defendant is correct that
Plaintiff’s motion, which lacked an accompanying brief, was
filed in violation of Local Rule 7.3. While it is true that this
court has the discretion under Local Rule 7.3(k) to summarily
deny the motion on that basis, because Plaintiff’s motion fails
on its own merits, this court will not strike this motion.
However, Plaintiff is cautioned that failure to follow the Local
Rules may result in action from this court.
- 3 1
Plaintiff contends that the case must be remanded back to
state court because Defendant’s notice of removal, which was
filed on April 14, 2016, (see Petition for Removal (Doc. 1)),
was filed more than 30 days after they sent Plaintiff a copy of
the Complaint. Plaintiff’s argument is without merit as it runs
counter to established Supreme Court precedent.
Plaintiff’s argument was foreclosed by the Supreme Court in
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344 (1999). In that case, the Court held that “a named
defendant's time to remove is triggered by simultaneous service
of the summons and complaint, or receipt of the complaint,
‘through service or otherwise,’ after and apart from service of
the summons, but not by mere receipt of the complaint unattended
by any formal service.” Id. at 347 (emphasis added). This
holding has been applied in this district in Hill v. Equifax,
No. 1:11CV107, 2011 WL 1675045 (M.D.N.C. May 3, 2011).
Plaintiff, in its reply brief (Doc. 11) offers no argument or
case suggesting Murphy Bros. is distinguishable or no longer
applicable.
Plaintiff did not formally serve Defendant until
March 17, 2016, and Defendant filed a notice of removal on
April 14, 2016. As such, this court finds Defendant’s notice of
removal was timely, and Plaintiff’s motion to remand should be
denied.
- 4 -
III. CONCLUSION
For the reasons stated herein, Plaintiff’s Motion to Remand
(Doc. 7) is DENIED.
This the 8th day of August, 2016.
______________________________________
United States District Judge
- 5 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?