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Bodin v. HCC Life Ins. Co.

United States District Court, W.D. Louisiana, Lafayette Division

February 2, 2018

Tonya Bodin
v.
HCC Life Ins. Co.

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.

         Pending before the undersigned on referral from the district judge is a Motion to Remand Pursuant to 28 U.S.C. §1447 filed by plaintiff, Tonya Bodin, (“plaintiff”) [Doc. 10]. Defendant HCC Life Insurance Co. (“HCC”) filed an opposition brief [Doc. 12]. For the following reasons, the undersigned will recommend that the motion be denied.

         Background and Positions of Parties

         Plaintiff filed suit for breach of contract and declaratory judgment against HCC on April 7, 2017 in the 15th Judicial District Court for the Parish of Vermilion. In her motion to remand, the plaintiff argues she served HCC by delivering citation and a copy of the petition to the Louisiana Secretary of State. The record shows the Secretary of State received the citation and petition on May 30, 2017, but on the same date, sent a letter to plaintiff's counsel, wherein the Secretary rejected the service for failure to pay the required service fee under La. Rev. Stat. §49:222. Nakia Davis, an attorney for HCC, filed an Affidavit wherein she attests HCC did not receive notice of the attempted service, and the plaintiff did not attempt service again.

         The record shows that on July 3, 2017 - without any valid service having been made on HCC - the plaintiff obtained a preliminary default judgment against HCC. Ms. Davis attests HCC also did not receive a copy of the preliminary default judgment. On September 6, 2017, the plaintiff confirmed the preliminary default and obtained a Judgment against HCC in excess of $400, 000.00. A Notice of Judgment was issued on September 7, 2017; that Judgment was forwarded to the Louisiana Secretary of State, which then forwarded the Judgment to HCC. HCC argues the receipt of the Judgment was its first notice of the lawsuit, and HCC then removed the lawsuit to this Court on September 26, 2017. Thus, HCC argues the removal was timely.

         In the instant motion to remand, the plaintiff seeks remand of the instant matter on grounds HCC did not timely remove the instant matter, and that any issue concerning service might well give rise to a claim by HCC against the Secretary of State, but that such issue does not affect the timing of the removal as between HCC and the plaintiff. For the following reasons, the undersigned finds the plaintiff's argument is without merit.

         Law & Analysis

         The plaintiff seeks remand on grounds HCC did not timely remove the matter; in response, HCC argues the plaintiff did not effect service of the citation and petition on HCC, and that HCC removed the matter within thirty days of its receipt of notice of the lawsuit, which did not occur until September 7, 2017.

         28 U.S.C. 1446(b) generally provides for removal of an action to federal court within thirty days after receipt by the defendant of a copy of the initial pleading, as follows:

(b) Requirements; generally.--(1) 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, 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 the instant case presents the question of what constitutes “receipt by the defendant.”

         HCC argues it did not “receive” the plaintiff's petition, and in fact, was not on notice of the lawsuit having been filed, until it received a Judgment issued in the case on or around September 7, 2017. HCC argues the plaintiff's service was non-compliant with state law because she failed to comply with the provisions of La. Rev. Stat. §49:22, which provides in relevant part:

§222 Fees charged by Secretary of State
A. The secretary of state shall determine and collect, in accordance with the Administrative Procedure Act, such fees, other than the fees provided in Subsection B of this Section and other than fees for elections, as are reasonably necessary to carry out the duties of the office. The secretary of state shall ...

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