Opinion
Case No. 6:18-cv-01068-JR
09-27-2018
MID-VALLEY ORAL, MAXILLOFACIAL & IMPLANT SURGERY, P.C., an Oregon domestic professional corporation, Plaintiff, v. SENTINEL INSURANCE COMPANY, LTD, aka SENTINEL INSURANCE COMPANY, LIMITED, a foreign corporation; THE HARTFORD FINANCIAL SERVICES GROUP, INC., a foreign corporation, aka THE HARTFORD; and HARTFORD FIRE INSURANCE COMPANY, a foreign corporation, Defendants.
FINDINGS AND RECOMMENDATION :
Plaintiff Mid-Valley Oral, Maxillofacial and Implant Surgery, P.C. moves to remand this case to state court pursuant to 28 U.S.C. § 1447. For the reasons set forth below, plaintiff's motion should be denied.
BACKGROUND
On May 10, 2018, plaintiff initiated a lawsuit in Marion County Circuit Court against Sentinel Insurance Company, Ltd. ("Sentinel"), Hartford Financial Services Group, Inc. ("Hartford Financial"), and Hartford Fire Insurance Company ("Hartford Fire") for breach of contract. Notice of Removal Ex. 2 (doc. 1-2). On June 19, 2018, Sentinel removed plaintiff's complaint to this Court under 28 U.S.C. § 1441 and 28 U.S.C. § 1446 based on diversity jurisdiction. Notice of Removal 2 (doc. 1). On July 19, 2018, plaintiff filed the present motion to remand based on an allegedly untimely and improperly joined removal.
STANDARDS
A defendant may remove an action filed in state court to federal court if there is diversity or federal question jurisdiction. 28 U.S.C. § 1441. Upon a motion by the plaintiff, a federal court may remand the action to state court for lack of subject matter jurisdiction. 28 U.S.C. § 1447(c); Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010). The party opposing the motion for remand bears the burden of establishing jurisdiction exists. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921).
DISCUSSION
Plaintiff argues that remand is warranted because Sentinel's removal "was not made within 30 days of service [and] none of the other defendants joined in or consented to the removal." Pl.'s Mot. Remand 3 (doc. 5). Specifically, plaintiff contends that service was effectuated on Sentinel on May 18, 2018, rendering the June 19, 2018, Notice of Removal untimely. Id. at 2; see also Winkler Decl. Ex. A (doc. 5-1) (Affidavits of Service provided by plaintiff's process server).
Under 28 U.S.C. § 1446(b)(1) a defendant "has thirty days to remove the case to federal court." Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citation omitted). The thirty day time period for removal starts to run from the "defendant's receipt of the initial pleading" where, as here, "that pleading affirmatively reveals on its face the facts necessary for federal court jurisdiction." Id. (citation and internal quotations omitted). In addition, 28 U.S.C. § 1446(b)(2) specifies that "all defendants who have been properly joined and served must join in or consent to the removal of the action."
Here, Sentinel has satisfied its burden in establishing that the exercise of federal jurisdiction is proper. Notably, the record reveals that plaintiff's record of service is incorrect and that service was actually "perfected on defendants Sentinel and Hartford Fire at their registered agent in Salem, CT Corporation, on May 21, 2018." Defs.' Resp. to Mot. Remand 2 (doc. 6). CT Corporation - "the largest registered agent corporation in the country" - has internal processes through which it documents each filing therewith. Id. at 3; Hickman Decl. ¶¶ 1-3 (doc. 8). Relevant to this case, CT Corporation has no record of service of summons and complaint on any defendant in this case for May 18, 2018. Id. at ¶ 7. Rather, CT Corporation's records evince that service was effectuated on Sentinel on May 21, 2018. Id.; Hickman Decl. Ex. 1 (doc. 8-1); Maloney Decl. ¶¶ 1-2 (doc. 7); Maloney Decl. Ex. 1 (doc. 7-1).
Plaintiff neglected to file a reply brief, such that nothing in the record contradicts defendants' assertion that "[p]laintiff's process server made a mistake in his affidavit." Defs.' Resp. to Mot. Remand 2 (doc. 6); see also Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) ("if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded") (citation and internal quotations and brackets omitted).
The parties agree Hartford Financial was served on May 25, 2018, and Hartford Fire was served the same day as Sentinel. Pl.'s Mot. Remand 1 (doc. 5); Defs.' Resp. to Mot. Remand 2-3 (doc. 6). --------
Concerning the unanimity of Sentinel's removal, all three defendants are represented by the same counsel. Further, "Sentinel, only, issued the Policy in this lawsuit [and] Hartford Financial is not an insurance company." Defs.' Resp. to Mot. Remand 4-5 (doc. 6); Maloney Decl. Ex. 2 (doc. 7-2). Indeed, the complaint confirms that the underlying contract was issued exclusively by Sentinel, and contains no specific allegations as to either Hartford Fire or Hartford Financial. Notice of Removal Ex. 2 (doc. 1-2). In other words, there is no indication that Hartford Fire and Hartford Financial are parties to the policy on which this breach of contract action is based, such that their role in this lawsuit is nominal. See Hewitt v. Stanton, 798 F.2d 1230, 1232-33 (9th Cir. 1986) ("[a] defendant is a nominal party where his role is limited to that of a stakeholder or depositary") (citations omitted); see also Defs.' Resp. to Mot. Remand 5 (doc. 6) (collecting cases reflecting that nominal parties are not required to consent to or join in removal petitions). Thus, Hartford Financial and Hartford Fire's formal joinder in Sentinel's removal was not procedurally necessary.
RECOMMENDATION
Plaintiff's Motion for Remand (doc. 5) should be denied. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 27th day of August 2018.
s/Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge