United States District Court, D. Montana, Great Falls Division
PACIFIC HIDE & FUR DEPOT, a Montana corporation, n/k/a Pacific Steel & Recycling, Plaintiff,
NAVIGATORS SPECIALTY INSURANCE COMPANY, Defendant.
Morris, United States District Court Judge.
Court originally set this matter for hearing on January 15,
2019. (Doc. 8.) For the reasons stated below, the Court deems
it appropriate to decide this matter without a hearing.
Pacific Hide & Fur Depot n/k/a Pacific Steel &
Recycling (“Pacific”) filed its Original
Complaint against Defendant Navigators Specialty Insurance
Company (“Navigators”) in the Montana Eighth
Judicial District Court, Cascade County, on September 9,
2015. (Doc. 1-1.) Pacific plead the following causes of
actions in its Original Complaint: Breach of Contract,
Declaratory Judgment, and Violation of the Unfair Trade
Practices Act. Id. at 4-6.
Original Complaint alleges facts that would support the
exercise of diversity jurisdiction by this Court pursuant to
28 U.S.C. § 1332(a). The Original Complaint alleges that
Pacific exists as a “corporation organized under the
laws of the State of Montana.” Id.at 1. The
Original Complaint alleges that Navigators is not
incorporated in Montana. Id. at 2. The Original
Complaint further alleges that the insurance policy in
dispute exceeds $75, 000 as the policy limits operation and
site coverage to $1, 000, 000 per incident. (Docs. 1-1 at
1-3, 7 at 8.)
timely served the Montana Insurance Commissioner
(“Commissioner”) with the summons and Original
Complaint on September 5, 2018. (Doc. 1-2 at 2.)
Pacific's service of the Original Complaint on the
Commissioner satisfied the requirements of Montana Code
Annotated § 33-1-603. The Commissioner mailed Navigators
the summons and Original Complaint on September 6, 2018.
(Doc. 1-2.) Navigators received the summons and Original
Complaint on September 11, 2018. Id.
timely filed an Amended Complaint on September 25, 2018.
(Doc. 1-3 at 3.) Pacific served the Amended Complaint on
Navigators via UPS Next Day Air on September 25, 2018.
Id. at 1. Navigators received the Amended Complaint
on September 27, 2018. (Doc. 1-3.)
Amended Complaint incorporates the denial letter that
Navigators sent to Pacific between the filing of
Pacific's Original Complaint on September 9, 2015, and
the service of Pacific's Original Complaint on Navigators
on September 5, 2018. (Docs. 1-3 at 3, 7 at 3.) The Amended
Complaint, similar to the Original Complaint, maintains that
Pacific exists as a Montana corporation. (Doc. 1-3 at 3-5.)
The Amended Complaint likewise continues to allege that
Navigators fails to exist as a Montana corporation.
Id. And finally, the Amended Complaint alleges that
the disputed insurance policy limits coverage to $1, 000, 000
per incident. Id.
filed its Notice of Removal to this Court on October 25,
2018. (Doc. 1.) Pacific filed the instant Motion to Remand on
November 21, 2018. (Doc. 6.) Pacific asserts that the
Original Complaint, rather than the Amended Complaint, serves
as the initial pleading for purposes of setting
Navigators' thirty-day removal deadline. Id.at
7. Pacific points out that all elements necessary to
establish diversity jurisdiction pursuant to 28 U.S.C.
§1332(a) could be ascertained directly from the
allegations on the face of the Original Complaint.
Id. Pacific contends that Navigators removal
deadline expired on September 11, 2018-thirty days after
Navigators received the Original Complaint. Id. at
3. Pacific argues that Navigators' removal of the case
from the Montana Eighth Judicial District Court to this Court
on October 25, 2018, proves untimely. Id.
requests that this Court deny Pacific's Motion to Remand.
(Doc. 9.) Navigators argues that the Amended Complaint, as
opposed to the Original Complaint, triggered the thirty-day
removal deadline. Id.at 2. Navigators further
contends that equitable considerations support denial of
Pacific's Motion to Remand. Id. at 5. Navigators
claims that curbing its “duty to file a notice of
removal” from thirty days to sixteen days-the amount of
time between its receipt of the Original Complaint and its
receipt of the Amended Complaint-would be inequitable.
Id. at 6.
law provides a defendant with thirty days after its receipt
of the initial pleading, through service or otherwise, to
remove a civil action to federal court. 28 U.S.C. §
1446(b)(1). The thirty-day removal deadline commences when
the initial pleading “affirmatively reveals on its face
the facts necessary for federal court jurisdiction.”
Harris v. Bankers Life & Casualty Co., 425 F.3d
689, 691 (9th Cir. 2005) (citing Chapman v. Powermatic,
Inc., 969 F.2d 160, 163 (5th Cir. 1992)) (internal
filing of an amended pleading commences the thirty-day
removal deadline only when it is not ascertainable from the
face of the initial pleading that the case would be
removable. Durham v. Lockheed Martin Corp., 445 F.3d
1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)).
A defendant's untimely filing of its notice of removal
constitutes a procedural defect that necessitates remanding
the case to the state court if the plaintiff timely files its
motion to remand. See 28 U.S.C. § ...