Opinion
3:22-cv-602 (SRU)
03-16-2023
VHS OF ARROWHEAD, INC. d/b/a ABRAZO ARIZONA HEART HOSPITAL and ABRAZO ARROWHEAD CAMPUS, et al., Plaintiffs, v. CIGNA HEALTH AND LIFE INSURANCE COMPANY, Defendant.
MEMORANDUM OF DECISION REGARDING PLAINTFFS' MOTION TO REMAND
STEFAN R. UNDERHILL United States District Judge.
Twenty-one hospitals in six states (collectively, the “Tenet Hospitals” or “Plaintiffs”) filed the instant lawsuit against Cigna Health and Life Insurance Company (“Cigna”) in Hartford Superior Court, alleging that Cigna unlawfully reimburses medical claims arising from out-ofnetwork emergency services provided to Cigna's insureds at rates less than the fair market value of the services rendered or not at all. The Tenet Hospitals bring state law causes of action for violations of the Connecticut Unfair Insurance Practices Act, Conn. Gen. Stat. §§ 42-110a et seq., and in equity for unjust enrichment and quantum meruit. Cigna removed the lawsuit to this court, contending that the Tenet Hospitals' legal claims are completely preempted by the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). The Tenet Hospitals have moved to remand, arguing that Cigna failed to timely remove this action and, in the alternative, that that their legal claims are not preempted by ERISA. I agree with Plaintiffs that Cigna's notice of removal was not timely, and I grant their motion to remand.
I. Relevant Procedural and Factual History
Connecticut courts “look to the facts described in the sheriff's return to demonstrate compliance with the requirements for service of process. ‘The return is prima facie evidence of the facts stated therein.'” Bove v. Bove, 93 Conn.App. 76, 82 (2006) (quoting Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 390 (1957)).
On March 25, 2022, Connecticut State Marshal Elizabeth Ostrowski (“the Marshal”) left two verified true and attested copies of the writ, summons, complaint, and a statement of amount in demand (“the Process”) with the Insurance Commissioner of the State of Connecticut. Return of Summons, Doc. No. 1-2, at 1. In addition, after confirming that Cigna's corporate filing with the Connecticut Secretary of State “list[ed] ‘no agent,'” the Marshal mailed the Process to the Secretary of the Corporation, Cigna Health and Life Insurance Company at its Bloomfield, Connecticut headquarters, via certified mail, return receipt requested, on that same day. Id.
On March 28, 2022, a clerk at the office of the Insurance Commissioner contacted the Marshal and stated that Donna Gaudet, Legal Coordinator, was Cigna's agent for service. Id. The Insurance Department clerk provided the Marshal with Gaudet's contact information. Id.; Gaudet Dec., Doc. No. 52-1.
On March 30, 2022, the Marshal gave the Process, by hand, to Gaudet at Cigna's Bloomfield address. Doc. No. 1-2 at 1. Later that day, the Marshal, as advised by Gaudet, left the Process with Gary Scappini of the CT Corporation System. Id.
On March 31, 2022, the Marshal obtained the signed return receipt card that had been annexed to the certified mail. Id. at 3. The receipt card stated that it had been signed by “Leo Viruet” and that its delivery date was “03282022.” Id.
Also on March 31, 2022, the Tenet Hospitals filed the complaint in Connecticut Superior Court, Hartford. Compl., Doc. No. 1-1; see also VHS of Arrowhead, Inc. d/b/a Abrazo Arizona Heart et al. v. Cigna Health and Life Ins. Co., Dkt. No. HHD-CV22-6153882-S (Conn. Super. Ct. March 31, 2022).
On April 28, 2022, Cigna removed this action to this Court under 28 U.S.C. § 1441(b), asserting that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 because section 502 of ERISA, 29 U.S.C. § 1132(a)(1)(B), completely preempts some of Plaintiffs' state law claims. Notice of Removal, Doc. No. 1, at ¶¶ 12-14.
On May 20, 2022, Tenet Hospitals moved to remand. Mot. to Remand, Doc. No. 43. Cigna opposed the motion. Opp'n, Doc. No. 52. The Tenet Hospitals replied. Reply, Doc. No. 56.
On October 5, 2022, this case was transferred to my docket. Doc. No. 58.
On November 21, 2022, I held a hearing on Plaintiffs' motion to remand. Doc. No. 62.
II. Standard of Review
“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441. “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....” 28 U.S.C. § 1446(b).
A plaintiff may challenge the propriety of removal based on procedural defects and move to remand a case to state court within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c). “[S]tatutory procedures for removal are to be strictly construed,” and any doubts about removal should be “resolve[d] . . . against removability.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prod. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (cleaned up).
III. Discussion
The Tenet Hospitals argue that Cigna's removal of this action was procedurally defective: that Plaintiffs' service upon Cigna by certified mail, return receipt requested, was effected on March 28, 2022, and that Cigna's April 28, 2022 notice of removal- thirty-one days after the earliest service of process- was untimely. Mot. to Remand, Doc. No. 43, at 1. Cigna counters that there was no live action to remove until this action was filed in state court on March 31, 2022. Opp'n, Doc. No. 52, at 8, 10. In the alternative, Cigna argues that Plaintiffs' service by mail was unauthorized and that it properly removed this action within thirty days of the earliest effective service of process, when its agent designated with the Connecticut Insurance Commissioner was served on March 30, 2022. Id. at 8-9, 11-13.
I agree that Plaintiffs' service by mail was proper in the circumstances and properly effected, and that the properly effected service by mail triggered the statutory removal period beginning March 28, 2022. As a result, I agree that Cigna's notice of removal was untimely and that I must remand this action.
A. Cigna's notice of removal was untimely.
1. This action was “brought in State court” before it was removed.
Cigna, challenging that Plaintiffs could properly serve this lawsuit prior to filing the action in state court, reasons that its notice of removal was timely because the Tenet Hospitals filed the Complaint in Superior Court on March 31, 2022; thirty days from the date of filing the Complaint was Saturday, April 30, 2022; and Cigna removed this action on April 28, 2022, before a purported Monday, May 2, 2022 deadline to remove the action. Opp'n, Doc. No. 52, at 8. Cigna's argument is incorrect as a matter of Connecticut law.
A case originally “brought in a State court,” 28 U.S.C. § 1441, generally may only be removed within thirty days of the defendant's receipt “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....” 28 U.S.C. § 1446(b). Applying that rule, the United States Supreme Court has 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,” like a courtesy copy of a pleading. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). In the Second Circuit, “the commencement of the removal period [can] only be triggered by formal service of process” of an initial pleading. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 202 (2d Cir. 2001).
Federal rules do not mandate the filing of an action in state court as a condition precedent to the removal of that action to federal court. Dustin v. Meridian Fin. Servs., Inc., 2017 WL 3773714, at *2 (W.D. Wash. Aug. 31, 2017). For purposes of determining whether there is a “civil action brought in a State court” capable of being removed, state rules of procedure dictate when a lawsuit is commenced in state court. See Herb v. Pitcairn, 324 U.S. 117, 120 (1945) (“Whether any case is pending in the Illinois courts is a question to be determined by Illinois law, as interpreted by the Illinois Supreme Court.”); cf. Whitaker, 261 F.3d at 204 (holding that service of summons and notice of action (but no complaint), which constitutes valid service under New York law, triggered the thirty-day removal period). Under Connecticut rules of procedure, a civil action is “commenced” in state court upon the service of the summons and complaint. Conn. Gen. Stat. § 52-45a (providing that “[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment,” which “shall be accompanied by the plaintiff's complaint”); see also Conn. Practice Book Sec. 8-1(a). Connecticut courts have therefore “long, frequently and consistently . . . held that an action is brought . . . when the writ is served upon the defendant.” Chestnut Point Realty, LLC v. Town of E. Windsor, 324 Conn. 528, 540 (2017) (collecting cases).
Connecticut law requires the “opposite” of the federal rule providing that a plaintiff must file the complaint before serving the defendants in federal court. Shanshan Shao v. Beta Pharma, Inc., 2017 WL 1138124, at *1 (D. Conn. Mar. 27, 2017). In Connecticut courts, a plaintiff must serve the defendant before filing an action in state court, and the plaintiff will later complete the procedure required by state law by “returning” to the state court to file the completed writ of return, the original summons, and the complaint. Chappetta v. Soto, 581 F.Supp.2d 292, 296 (D. Conn. 2008).
Applying the removal statutes and Connecticut law, this Court has concluded that the removal period begins upon the date of the simultaneous service of the summons and a true copy of the complaint. See, e.g., Shanshan Shao, 2017 WL 1138124, at *1 (“Removal by Defendants to this federal court . . . was timely under 28 U.S.C. § 1446(b) in that it was filed within 30 days after Defendants were served....”) (emphasis added); Biondo v. KTM, NA, Inc., 2007 WL 1455839 (D. Conn. May 17, 2007). Indeed, this Court has determined that simultaneous service of the summons and a true copy of the complaint triggers the removal period even when an action has not yet been filed in state court. Shanshan Shao, 2017 WL 1138124, at *1; Biondo, 2007 WL 1455839, at *1-2.
In Homer v. GMAC Mortgage, LLC, a case on which Cigna relies, my colleague District Judge Janet Bond Arterton held that a notice of removal is timely under section 1446(b) if it is “filed more than thirty days after a plaintiff serves the defendant with a complaint, but within thirty days of when the plaintiff actually files the complaint in state court.” 2011 WL 3859719, at *2 (D. Conn. Aug. 31, 2011). For the reasons set forth at length in this memorandum of decision, I respectfully disagree with this aspect of the Homer decision.
Consider the squarely analogous matter of Biondo v. KTM, North America, Inc., in which I previously rejected the argument Cigna asserts here. 2007 WL 1455839, at *1-2. There, when the defendant removed the action more than thirty days after being served the summons and a true copy of the complaint, I ordered the defendant to show cause why the action should not be remanded for untimely removal. Order to Show Cause, Biondo v. KTM, NA, Inc., Dkt. No. 3:07-cv-659, Doc. No. 8. Like Cigna, the defendant argued that there was “nothing to remove to federal court” at the time of service because the plaintiff had not yet filed the complaint in state court. Response, Biondo v. KTM, NA, Inc., Dkt. No. 3:07-cv-659, Doc. No. 9, at 1. I disagreed, reasoning that the plaintiff's simultaneous service of the summons and complaint caused the thirty-day period for removal to run “‘at once.'” Biondo, 2007 WL 1455839, at *2 (quoting Murphy Bros., 526 U.S. at 354). Because more than thirty days had passed from service of the complaint and summons, the defendant's untimely removal merited remand. Id.
Here, assuming Plaintiffs' service by mail was proper, the Tenet Hospitals formally served Cigna with the summons and complaint on March 28, 2022 by mail. Upon formal service of the summons, Plaintiffs “brought” this civil action under Connecticut law. Because Plaintiffs simultaneously served the summons and a true copy of the complaint, the thirty-day removal period began to run at once.
Cigna relies on Leverton v. Alliedsignal, Inc., 991 F.Supp. 481, 484 (E.D. Va. 1997), for its proposition that “for a document to be regarded as a pleading [under § 1446(b)] it must, at the very least, be filed with a court,” but Leverton does not rebut my conclusion. See Opp'n, Doc. No. 52, at 11. Under Virginia rules of procedure, “[a]n action in a Virginia court commences upon the filing of a motion for judgment with the court clerk;” therefore, the Eastern District of Virginia reasoned, “there is pending in the state court no civil action which is susceptible of being removed to the federal forum” unless and “until a motion for judgment is filed in the proper Virginia court.” 991 F.Supp. at 484 (citing Va. Sup. Ct. Rule 3:3(a)). Here, as explained, Connecticut law provides that an action is brought in state court upon service of the summons rather than the filing of the complaint. By contrast, the Tenet Hospitals more appropriately analogize the instant case to federal decisions applying Washington law. See Reply, Doc. No. 56, at 9-10. Washington, like Connecticut, provides that an action can be commenced either by service of a summons or by filing a complaint. Wash. Rev. Code § 4.28.020. Therefore, federal courts in Washington have held that when a plaintiff initiates a state court action by service of a summons, the removal period commences on the date of service. See, e.g., Alderson v. Delta Air Lines, Inc., 2018 WL 5240811, at *2-3 (W.D. Wash. Oct. 22, 2018) (collecting cases).
Nor am I dissuaded by Cigna's reliance on Schneehagen v. Spangle, 975 F.Supp. 973, 973-74 (S.D. Texas 1997), and Arnold v. Fed. Land Bank of Jackson, 747 F.Supp. 342, 343-44 (M.D. La. 1990), for the similar proposition that there is no proceeding until a state court action is filed. See Opp'n, Doc. No. 52, at 11 n.3. After Murphy Brothers, there is no doubt that a named defendant's time to remove is not triggered by “mere receipt” of a courtesy copy of the complaint “unattended by formal service.” 526 U.S. at 347-48. Consistent with the Supreme Court's ruling in Murphy Brothers, the Schneehagen and Arnold courts rejected the idea that the plaintiffs' informal delivery of courtesy copies of unfiled pleadings had triggered the removal clock. See Schneehagen, 975 F.Supp. at 973-74 (concluding, where the plaintiffs “courteous[ly]” provided a copy of their unfiled petition to the defendant's insurance adjuster, that “[u]ntil the state court action is filed, no action or proceeding yet exists”); Arnold, 747 F.Supp. at 343 (concluding, where the plaintiff informally mailed a courtesy copy of his complaint to the defendant, that “the period for removal does not begin running upon the receipt of a mere courtesy copy of the state court petition that is not even filed with the state court”). Here, however, an informal courtesy copy of the complaint is not at issue, because Plaintiffs formally served by certified mail, return receipt requested, a true and attested copy of the complaint that was thereafter filed in Superior Court, consistent with Connecticut rules of procedure. See Doc. No. 1-2, at 1.
Accordingly, assuming that Plaintiffs' service by mail was proper and properly executed, the service by mail triggered the statutory removal period beginning March 28, 2022. Therefore, I must next address whether Plaintiffs' service by mail was proper and properly executed.
2. Plaintiffs' service by mail was proper and properly executed.
Cigna next argues that service was not effected until March 30, 2022, when Plaintiffs personally served Gaudet, Cigna's purported registered agent for service. Opp'n, Doc. No. 52, at 11. To determine Cigna's deadline to timely remove this action, I must determine the earliest date triggering the removal clock. To do so, I must resolve whether the Tenet Hospitals' service by certified mail conformed with Connecticut law.
a. Plaintiffs were authorized to serve Cigna by mail.
Section 33-663(b) of the Connecticut Business Corporation Act (“the Act”) provides that a domestic corporation like Cigna may be served by leaving a copy of the process with the corporation's “registered agent” or by leaving the process at the registered agent's place of abode. Conn. Gen. Stat. § 33-663(a). If the corporation “has no registered agent,” or its registered agent “cannot with reasonable diligence be served,” then the corporation may be served by sending a true and attested copy of the process to the corporate secretary at the coporation's principal office via certified mail, return receipt requested. Id. § 33-663(b). Under the Act, when a corporation has no registered agent or none that can with reasonable diligence be served, service by mail is effective at the earliest of: “(1) [t]he date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United States mail....” Id.
Connecticut General Statutes section 33-663 provides in full:
(a) A corporation's registered agent is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation. Service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state.
(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by any proper officer or other person lawfully empowered to make service by sending a true and attested copy of the process, notice or demand by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is effective under this subsection at the earliest of: (1) The date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postage prepaid and correctly addressed.
(c) This section does not prescribe the only means, or necessarily the required means, of serving a corporation.Conn. Gen. Stat. § 33-663.
The parties' dispute turns on the meaning of the phrase “registered agent” as used in section 33-663. The Tenet Hospitals argue that “registered agent” is a term of art referring to an agent registered with the Connecticut Secretary of State (“the Secretary”), and they provide uncontroverted evidence that Cigna had no agent designated with the Secretary. Pls.' Mem. of Law, Doc. No. 44, at 11-12; Pls.' Reply, Doc. No. 56, at 10-13; Pls.' Ex. 1, Doc. No. 43, at 8. Cigna counters that it had a “registered agent,” one designated with the Connecticut Insurance Commissioner (Donna Gaudet). Def.'s Mem. of Law, Doc. No. 52, at 12; Gaudet Dec., Doc. No. 52-1, at ¶¶ 2-3. After careful analysis, I determine that Plaintiffs' construction of “registered agent” is more consistent with the Act as a whole and judicial decisions applying the Act. I therefore conclude that Cigna did not have a “registered agent” within the meaning of section 33663 and that Plaintiffs could serve Cigna by mail.
First, Plaintiffs persuasively argue that the Act supports their construction of the term “registered agent.” I begin with the statutory text. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Conn. Gen. Stat. § 1-2z. The Act defines “registered agent” as “the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation.” Conn. Gen. Stat. § 33-663(a). But the plain text of section 33-663 does not state with whom a corporation must register its agent- whether it must designate the agent with the Secretary of State, or whether any regulator is sufficient. The Act's definition section likewise omits with whom the agent must register. See Conn. Gen. Stat. § 33-602.
Finding the text of the statute inconclusive, I turn to the “the language and design of the statute as a whole.” K Mart Corp., 486 U.S. at 291. The broader Connecticut Business Corporation Act suggests that the Act contemplates that a “registered agent” is an agent registered with the Connecticut Secretary of State. See Pls.' Reply, Doc. No. 56, at 10-12. The Act provides that an individual may incorporate a corporation by “delivering a certificate of incorporation to the Secretary of State for filing,” which must include the name of the newly-incorporated corporation's “initial registered agent” and address of its “initial registered office.” Conn. Gen. Stat. § 33-635; id. § 33-636(a)(3). To change its “registered agent,” a corporation must file with the Secretary the names of its current registered agent and new registered agent. Id. § 33-661. To register its initial agent or any subsequent “registered agent,” the corporation must pay a fee to the Secretary. Id. § 33-617(a)(3); id. § 33-617(a)(4). If any “registered agent” seeks to resign its agency appointment, it must file a signed statement of resignation with the Secretary. Id. § 33-662(a).
Cigna's efforts to suggest that it falls outside of this statutory scheme fall short. For example, Cigna sought at oral argument to distinguish itself by citing to the fact that it is exempt from the section 33-660 duties to file an annual report with the Secretary of State and, as a result, to “continuously maintain in [Connecticut]” a “registered agent” at its “registered office.” Id. at § 33-660; id. § 33-953. Fair enough, but that observation is hardly dispositive. The insurance company exemption does not relieve Cigna of its duty to register an “initial agent” nor any subsequent agent with the Secretary. Nor, of note, does the Insurance Code appear to set forth an alternative requirement that Cigna designate an agent for service in its annual report to the Insurance Department or at any other time. Cf. Conn. Gen. Stat. § 38a-53 (requiring a domestic insurer to file annual report stating its financial condition). Cigna also pointed to section 38a-25 of the Insurance Code, which designates the Insurance Commissioner as the statutory agent for service of process for fifteen specified insurance entities, including foreign insurance corporations. Id. § 38a-25. By its plain terms, however, section 38a-25 does not apply to a domestic insurer like Cigna. For that reason, the Insurance Commissioner had no duty to send the Process to Cigna, see Conn. Gen. Stat. § 38a-26, and the Commissioner's representative instead directed the Marshal elsewhere, to Gaudet. Doc. No. 1-2.
Second, the Tenet Hospitals' construction of the Act appears to better align with that of Connecticut courts. No binding authority has squarely resolved whether a “registered agent” must be registered with the Connecticut Secretary of State, but state courts have repeatedly identified a nexus between the Secretary of State and a “registered agent.” See, e.g., Ayala v. Meadows Real Est. Mgmt. & Dev., 2016 WL 6079093, at *1 (Conn. Super. Ct. Sept. 15, 2016) (identifying a registered agent in a Secretary of State report); Nardella v. Norwich Inn & Spa, 1999 WL 773574, at *4 (Conn. Super. Ct. Sept. 17, 1999) (same). Moreover, Connecticut courts have repeatedly affirmed the use of service by mail where a corporation did not have an agent registered with the Secretary of State or that agent's contact information was no longer valid.
For example, the Superior Court has held that service by mail complied with section 33-663 where a corporation's officers were unable to be personally served and the corporation had failed to designate an agent for service of process when it filed its incorporation papers with the Secretary. See, e.g., Harris Memorial Church v. Bridgeport Redevelopment Agency, 2000 WL 33115390, at *1 (Conn. Super. Ct. Dec. 22, 2000); see also Priv. Cap. Grp., LLC v. Walpuck, 2006 WL 3290481, at *3 (Conn. Super. Ct. Oct. 25, 2006) (affirming service by mail where the defendant's annual report filed with the Secretary of State listed an outdated address for the registered agent, on which the marshal was “entitled to rely”). Cigna offers no countervailing judicial authority.
Cigna's argument that Plaintiffs failed to exercise reasonable diligence because Plaintiffs did not identify Cigna's agent registered with the Insurance Commissioner likewise misses the mark. Opp'n, Doc. No. 52, at 12-13. Section 33-663 provides that “[i]f a corporation has no registered agent, or the agent cannot with reasonable diligence be served,” then the serving party may serve the corporation by certified mail. Conn. Gen. Stat. § 33-663 (emphasis added). The statute is written disjunctively, suggesting that an agent must first be designated with the Secretary of State for the duty of diligence to apply. Accord Auto Body Ass'n of Connecticut, Inc. v. Sw. Appraisal Grp., 2002 WL 467767, at *3 (Conn. Super. Ct. Mar. 6, 2002) (“[W]hen an agent for service is designated, if the marshal has used reasonable diligence to serve the agent in hand or by abode service, but has been unable to do so, the corporation may be served under § 33-663 by certified letter, return receipt requested.”). The threshold registration requirement is evident in the case on which Cigna relies for its diligence argument, Ayala v. Meadows Real Estate Management and Development, 2016 WL 6079093, at *4 (Conn. Super. Ct. Sept. 15, 2016). There, after a slip and fall, the plaintiff served a representative of her employer, who was neither an employee of the defendant landlord nor the landlord's agent. Id. The plaintiff could have found the landlord's agent's alternate address in Secretary of State filings, with reasonable diligence, and could have served him at the alternate address; therefore, the Superior Court concluded, the plaintiff had failed to exercise sufficient diligence to properly serve the defendant. Id. That the plaintiff's lack of reasonable diligence arose from a failure to properly an agent who was in fact registered with the Secretary of State suggests that the plaintiff's duty to exercise reasonable diligence was trigged by the registration of the agent. Here, however, Cigna does not dispute that it had no agent registered with the Secretary of State.
Taken together, Cigna fails to rebut Plaintiffs' statutory interpretation argument and the judicial authority supporting Plaintiffs' proposition that a “registered agent” is a term of art for an agent registered with the Connecticut Secretary of State. Accordingly, I conclude that Cigna had no registered agent within the meaning of section 33-663(b), and Plaintiffs could serve Cigna by mail.
I now turn to Cigna's challenges to the execution of Plaintiffs' service by mail.
b. Plaintiffs' service by mail procedure was proper.
Cigna does not appear to dispute that it received the Process on March 28, 2022, but it disputes that the clerk who signed the return receipt (loading dock employee Leo Viruet) was authorized to accept service. Def.'s Mem. of Law, Doc. No. 52, at 13; Gaudet Dec., Doc. No. 52-1, at ¶ 4. I am not persuaded.
First, pursuant section 33-663, service by mail is effective at the earliest of: “(1) [t]he date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United States mail....” Conn. Gen. Stat. § 33-663(b). The service by mail was delivered on March 28, 2022, as evinced by Plaintiffs' return receipt. Certified Mail Receipt, Pls.' Ex. 2, Doc. No. 43, at 14.
Second, Cigna's argument is predicated on unsupported theory that section 33-663 requires that a specified individual sign for certified mail, a theory that is inconsistent with the text of section 33-663 and that has been rejected by Connecticut courts. See Gaudet Dec., Doc. No. 52-1, at ¶ 4 (“Viruet was not and has never been Cigna's Agent for Service of Process, and to my knowledge, he is not authorized to accept service on Cigna's behalf.”).
For one, section 33-663 does not require that a specified individual sign for the mailed service. Rather, service is “effective,” in the case of service by mail, the earliest of “[t]he date the corporation receives the mail” or “the date shown on the return receipt, if signed on behalf of the corporation.” Conn. Gen. Stat. § 33-663(b) . Cigna does not appear to dispute that Viruet signed the return receipt for Cigna, only whether he was authorized to do so. For that proposition, Cigna cites to Nelson v. Stop & Shop Companies, Inc., which holds that “[w]hen a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate.” 25 Conn.App. 637, 641 (1991). Nelson, however, concerns Connecticut General Statutes section 52-57, a statute that enumerates specific individuals on whom personal service may be made in an action against a private corporation. Id. at 639 (citing Conn. Gen. Stat. § 52-57(c)); see also Priv. Cap. Grp., LLC, 2006 WL 3290481, at *2 (stating that Conn. Gen. Stat. § 52-57(c) “contemplates service in-hand or abode service” and that, “[b]ecause Conn. Gen. Stat. § 52-57 contemplates service in-hand or abode service, neither of which was accomplished by the Marshal in this case. . ., the court will limit its consideration to whether or not valid service has been made under Conn. Gen. Stat. § 33663.”).
Section 52-57(c) provides in relevant part that:
In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located.Conn. Gen. Stat. § 52-57(c).
Moreover, judicial authority undermines Cigna's suggestion that only a designated agent may accept service by mail. Consider Reiner, Reiner & Bendett, P.C. v. The Cadle Co., 278 Conn. 92, 111 (2006). There, the Connecticut Supreme Court determined that the defendant had actual notice of the suit, for purposes of personal jurisdiction, due to “the marshal's initial return of service showing service by certified mail properly addressed to the secretary of the corporation” and the plaintiff's supplemental return of service, containing a “signed receipt card indicating that process had been delivered by the United States Postal Service to the defendant's proper address, and that an individual at that address acknowledged having received service by signing the return receipt card.” Id. The Connecticut Supreme Court rejected the defendant's claim that the plaintiff had “failed to present evidence that the person who signed the return receipt acted on behalf of the defendant,” because “common sense is not to be left at the courthouse door” and “an individual ordinarily would not sign a return receipt for an envelope if the individual had no connection to the addressee.” Id. at 112 (cleaned up). Because the trial court had evidence of the delivery of the properly-addressed certified mail and “receipt of the papers by an individual [at that address] who evidenced that receipt by signing the return receipt card,” the Connecticut Supreme Court affirmed the trial court's finding that there was actual notice of the suit for purposes of personal jurisdiction. Id. Presented with circumstances analogous to the circumstances here, the Connecticut Supreme Court merely required that the certified mail was properly addressed and that “an individual” at that address connected to the defendant- not an individual specified in section 52-57 or otherwise- had signed for the service by mail. Accord RCN Cap., LLC v. 217 Thames, Inc., 2017 WL 6997256, at *3-4 (Conn. Super. Ct. Dec. 13, 2017) (holding that an undated certified mail receipt signed by the defendant's part-time bookkeeper was a sufficient basis from which to establish personal jurisdiction and rejecting the defendants' claim that one of the individuals enumerated in section 52-57 or its corporate secretary was required to have signed the return receipt).
Applying Reiner, Reiner & Bendett, I conclude as follows. Plaintiffs properly addressed the certified mail. Viruet, an individual at the correct address affiliated with Cigna, acknowledged receipt by signing the return receipt card. Common sense commands that Viruet did so on behalf of Cigna. Accordingly, I conclude that Plaintiffs' service by mail was proper and effected on March 28, 2022.
3. Cigna missed the April 27, 2022 deadline to remove this action.
Cigna had no agent registered with the Secretary of State and thus the Tenet Hospitals were authorized to serve process on Cigna via mail, which they did. The Tenet Hospitals served a summons, a true and attested copy of the complaint, and statement of amount in demand via certified mail, return receipt requested, addressed to Cigna's corporate secretary at its headquarters on March 25, 2022. Cert. of Service, Pls.' Ex. 2, Doc. No. 43, at 11. That mail was delivered and received on March 28, 2022, as shown by Viruet's signed return receipt, initiating this proceeding under Connecticut law. Certified Mail Receipt, Pls.' Ex. 2, Doc. No. 43, at 14. Thus, I agree with Tenet Hospitals that the earliest effective date of service was when the summons and complaint were served by mail on Cigna on March 28, 2022.
Plaintiffs' simultaneous service of the summons and complaint triggered the removal period under 28 U.S.C. § 1446(b). At that point, Cigna had thirty days to remove this action. Thirty days from the date of Plaintiffs' service of the complaint and summons was April 27, 2022. Cigna removed this action thirty-one days after the start of the removal period, on April 28, 2022. Because Cigna removed this action one day after the deadline, the removal was untimely.
Of note, that Cigna's notice of removal was only one day late is of no legal consequence. The statutory time limit is “mandatory” and, absent waiver or estoppel, “rigorously enforce[d].” Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir. 1991), abrogated on other grounds by Contino v. United States, 535 F.3d 124, 126-27 (2d Cir. 2008). See, e.g., Thomas v. Baldwin, 189 F.Supp.2d 1 (E.D.N.Y. 2002) (holding that notice of removal filed thirty-two days after receipt of the summons and complaint was untimely).
Accordingly, I must remand this action to Superior Court.
IV. Conclusion
Plaintiffs' motion to remand, doc. no. 43, is GRANTED.
I direct the Clerk to remand this case to the Connecticut Superior Court, Hartford for further proceedings and to close this case.
So ordered.