United States District Court, D. Rhode Island
JULIO H. ARCHILA, Plaintiff,
INTEGON NATIONAL INSURANCE COMPANY and/or Doe Corporation, Defendant.
MEMORANDUM AND ORDER
William E. Smith Chief Judge.
the Court is Plaintiff Julio H. Archila's Objection To
Removal, Motion To Remand, and Motion for Attorney Fees
(“Motion To Remand”). (ECF No. 6.) This case
arises from Plaintiff's claim for benefits coverage under
an Uninsured Motorist Policy with Defendant Integon National
Insurance Company (“Integon”), following a car
accident on or about March 13, 2015, in which Plaintiff was
injured. (Compl. ¶¶ 7-15, ECF No. 1-2.) On June 27,
2017, Plaintiff filed his Complaint in Kent County Superior
Court, asserting claims for breach of contract and bad faith.
(Id., Counts I-III.) Defendant removed the case to
this Court on August 8, 2017. (Notice of Removal, ECF No. 1.)
asserts that removal was improper because Defendant's
filing of a notice of removal exceeded the requisite
thirty-day clock for removal under 28 U.S.C. § 1446(b).
Alternatively, as a further basis to contest removal and
endorse remand, Plaintiff avers that the
amount-in-controversy requirement for diversity jurisdiction
is not met. Finally, based on his remand request, Plaintiff
seeks attorney's fees and costs. These arguments fail.
After careful consideration of the parties' submissions,
Plaintiff's Motion To Remand is DENIED for the reasons
first issue before the Court is one of timing: the parties
contest the point at which the clock begins to run for
removal purposes under § 1446(b). This case
presents a slightly more convoluted timing question because
Defendant is a foreign insurance company; this means an
intermediary agent, the Rhode Island Department of Business
Regulation, Business Division (“RIDBR”), received
service of process on Defendant's behalf pursuant to
Rhode Island General Laws § 27-2-13. These facts raise
the more specific inquiry of whether the clock begins to run
upon receipt of service by RIDBR, or alternatively, as
Defendant suggests, when Defendant actually receives notice,
forwarded from RIDBR.
this case poses an interesting question, it is not a novel
one; indeed, this court considered this precise scenario
including the interplay between the federal removal statute
and Rhode Island General Laws § 27-2-13 in Wilbert
v. UNUM Life Insurance Company, 981 F.Supp. 61 (D.R.I.
1997). There, the plaintiffs served process on the Rhode
Island State Insurance Commissioner, the in-state agent
designated for service of process by Rhode Island statute.
Id. at 62. In turn, the Commissioner forwarded the
service-of-process materials to defendant UNUM Life Insurance
Company. Id. After considering nearly identical
arguments to those volleyed here, the court held: “When
a statutory agent is served, the clock for removal does not
begin ticking as it would if defendant itself had been served
but rather starts when defendant receives actual notice of
the service from the statutory agent.” Id. at
63; see also Gordon v. Hartford Fire Ins.
Co., 105 F. App'x 476, 480 (4th Cir. 2004) (joining
conclusion reached by “overwhelming majority of
district courts” that in the context of service upon
statutory agents, the time-for-removal clock does not begin
to run until the defendant actually receives a copy of the
complaint); Renaissance Mktg., Inc. v. Monitronics
Int'l, Inc., 606 F.Supp.2d 201, 206 (D.P.R. 2009)
(joining consistent holding of district courts that “in
cases in which service is made on a statutory agent . . . the
thirty-day statutory period for removal runs from the day the
defendant receives notice of summons and the
complaint”); 14C Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Fed. Prac. and Proc. Juris. §
3731 (4th ed.) (“[S]tatutory agents are not true agents
but merely a medium for transmitting the relevant papers.
Accordingly, it now appears to be settled law that the time
for removal begins to run only when the defendant or someone
who is the defendant's agent-in-fact receives the notice
via service . . . .”). This consistent holding
“makes abundant sense, as the defendant's right to
a federal forum ought not to depend upon the rapidity and
accuracy with which statutory agents inform their principals
of the commencement of litigation against them.”
Cygielman v. Cunard Line Ltd., 890 F.Supp. 305, 307
Defendants filed a Notice of Removal on August 8, 2017, which
was within thirty days of when Defendant Integon received
notice and copies of the summons and complaint from RIDBR on
July 11, 2017. Thus, removal was timely.
the Court considers Plaintiff's argument that removal was
improper for failure to meet the requisite $75, 000
amount-in-controversy threshold. Defendants removed this
action based on diversity of citizenship pursuant to 28
U.S.C. 1332(a). To be satisfied that the amount in
controversy suffices here, the Court need look no further
than the statute that outlines the procedure for the removal
of civil actions, 28 U.S.C. § 1446. Section 1446(c)(2)
specifies: “If removal of a civil action is sought on
the basis of the jurisdiction conferred by section 1332(a),
the sum demanded in good faith in the initial pleading shall
be deemed to be the amount in controversy . . . .”
See also Dart Cherokee Basin Operating Co. v. Owens,
135 S.Ct. 547, 551 (2014) (“If the plaintiff's
complaint, filed in state court, demands monetary relief of a
stated sum, that sum, if asserted in good faith, is
‘deemed to be the amount in controversy.'”
(quoting 28 U.S.C. § 1446(c)(2))); St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938)
(“[T]he status of the case as disclosed by the
plaintiff's complaint is controlling in the case of a
removal . . .”); CE Design Ltd. v. Am. Economy Ins.
Co., 755 F.3d 39, 43 (1st Cir. 2014) (“A
plaintiff's good faith allegation of damages meeting the
required amount in controversy is usually enough.”).
case lands in federal court after a unique syntax: Plaintiff
filed a complaint in state court but expressly alleged an
amount in controversy in excess of $75, 000. In such a
setting, where a plaintiff brings his case in state court but
alleges damages in excess of the federal jurisdictional
amount, the court applies the “legal certainty test,
” i.e., the court accepts plaintiff's damages
pronouncement in the complaint unless it is demonstrated to a
legal certainty that the jurisdictional amount cannot be
recovered. See, e.g., Freeman v. Blue Ridge
Paper Products, Inc., 551 F.3d 405, 409 (6th Cir. 2008)
(“In ‘a suit instituted in a state court and
thence removed, ' plaintiffs' claim of damages
exceeding the federal amount in controversy is presumed
correct unless shown to a legal certainty that the amount is
actually less than the federal standard.” (quoting
St. Paul Mercury, 303 U.S. at 290-92)); Sanchez
v. Monumental Life Ins. Co., 102 F.3d 398, 402 (9th Cir.
1996) (extending “legal certainty” test to cases
“brought in the state court in which the plaintiff has
filed any complaint alleging damages in excess of the
required federal jurisdictional minimum”); De
Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir.
1995) (“[T]he legal certainty test ‘is explicitly
premised on the assumption that the amount in controversy is
met by the express allegations of the plaintiff's
complaint and is limited in utility to cases in which the
plaintiff himself has placed the requisite jurisdictional
amount in controversy by requesting damages in excess of the
jurisdictional amount.'” (quoting Garza v.
Bettcher Indus., Inc., 752 F.Supp. 753, 755 (E.D. Mich.
in this context, “it is proper to presume that the
plaintiff's prayer is an appropriate presentation of
potential damages because the damages sought are against the
plaintiff's forum-selection interests.” Gafford
v. Gen. Elec. Co., 997 F.2d 150, 160 (6th Cir. 1993),
abrogated on other grounds, Hertz Corp. v.
Friend, 559 U.S. 77 (2010). “After all, the
plaintiff is both the author and the master of its
complaint.” Connectu LLC v. Zuckerberg, 522
F.3d 82, 93 (1st Cir. 2008); see also Standard Fire Ins.
Co. v. Knowles, 568 U.S. 588, 595 (2013)
(“[F]ederal courts permit individual plaintiffs, who
are the masters of their complaints, to avoid removal to
federal court, and to obtain a remand to state court, by
stipulating to amounts at issue that fall below the federal
jurisdictional requirement.”); St. Paul
Mercury, 303 U.S. at 294 (“If [a plaintiff] does
not desire to try his case in the federal court he may resort
to the expedient of suing for less than the jurisdictional
amount, and though he would be justly entitled to more, the
defendant cannot remove.”).
in its complaint filed in state court, Plaintiff set forth,
“[t]he amount of Plaintiff's damages will be
established at the time of trial, but are estimated to be
over $100, 000.00 Dollars.” (ECF No. 1-2.) Although
now, for purposes of this motion, Plaintiff backtracks and
suggests the amount in controversy is not satisfied,
has failed to demonstrate “to a legal
certainty that the claim is really for less than the
jurisdictional amount.” St. Paul Mercury, 303
U.S. at 289 (emphasis added). Thus, Plaintiff's express
declaration in his Complaint that the amount in controversy
exceeds $100, 000 is presumed correct. Accordingly, remand is
not appropriate in this instance.
necessary consequence, attorney's fees are not warranted
at this juncture. See Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005) (“[T]he standard
for awarding fees should turn on the reasonableness of the
removal. . . . [W]hen an objectively reasonable basis [for
removal] exists, fees should be denied.”). Therefore,
Plaintiff's Motion To Remand is hereby DENIED.