United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
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.
and Positions of Parties
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.
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.
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.
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,
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
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 ...