Opinion
Case No. 6:10-cv-846-Orl-31GJK.
August 23, 2010
ORDER
This matter comes before the Court on the Motion to Remand (Doc. 30) filed by the Plaintiff, Taco International Foods of Georgia, Inc. ("Taco International"), and the response (Doc. 33) filed by the Defendant, The Taco Maker, Inc. ("Taco Maker").
I. Background
The following facts are undisputed. Taco International filed the instant suit in state court on January 14, 2010, seeking to recover a $250,000 deposit from Taco Maker. Taco International has its principal place of business in Florida. Taco Maker is a foreign corporation, but on January 2009 it filed a corporate reinstatement form with the Florida Secretary of State in which it identified a location in Orlando as the address of its "Principal Office". (Doc. 30-1 at 11).
On February 1, Taco International served a summons and a copy of the complaint on Taco Maker's registered agent for service of process, CT Corporation System ("CT System"). (Doc. 30 at 19). Taco Maker did not respond to the complaint. On March 17, Taco International moved for a clerk's default, which was granted on March 25.
On April 16, Taco International moved for entry of final judgment. On May 12, Taco International served Taco Maker with a copy of the notice of hearing on that motion, again through CT System. Taco Maker did not respond, and did not attend the hearing, which was conducted on May 21. On May 26, Taco Maker removed the case to this Court on the grounds of diversity jurisdiction.
II. Legal Standards
III. Analysis
Williams v. Best Buy Co.,269 F.3d 13161319See28 U.S.C. § 133228 U.S.C. § 1446Goodyear Tire Rubber Co. v. Fuji Photo Film Co.,645 F. Supp. 3738Burns v. Windsor Ins. Co.,31 F.3d 10921095
Taco International's second argument, that Taco Maker missed the deadline for filing its notice of removal, is meritorious. The statute provides that the notice must be filed within 30 days after receipt of the complaint "by service or otherwise." 28 U.S.C. 1446(b). Taco Maker does not dispute the contention that service was accomplished on its designated agent — CT System — on February 1, nearly four months before the May 26 filing of the notice of removal. Despite this, Taco Maker argues that it did not receive notice of the state court action until April 27, 2010. Taco Maker asserts that either CT System failed to pass the complaint and summons along, or a receptionist at Taco Maker lost it. This argument is unavailing. Federal Rule 4(h) provides that service of process may be accomplished on a corporation by, inter alia, "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process" (emphasis added). Once CT System received the summons and complaint, service was complete, and the Section 1446(b) clock started ticking. For purposes of Section 1446(b), it is immaterial what CT System or the receptionist or anyone else did with those documents afterward. Because the notice of removal was filed more than 30 days after service was accomplished on CT System, the notice was untimely.
In consideration of the foregoing, it is hereby
ORDERED that the Motion to Remand (Doc. 30) is GRANTED, and this case is REMANDED to the Circuit Court in and for the Ninth Judicial Circuit. The Clerk is directed to close the file.
DONE and ORDERED.