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Pacific Hide & Fur Depot v. Navigators Specialty Insurance Co.

United States District Court, D. Montana, Great Falls Division

January 7, 2019

PACIFIC HIDE & FUR DEPOT, a Montana corporation, n/k/a Pacific Steel & Recycling, Plaintiff,
v.
NAVIGATORS SPECIALTY INSURANCE COMPANY, Defendant.

          ORDER

          Brian Morris, United States District Court Judge.

         The 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.

         BACKGROUND

         Plaintiff 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.

         The 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.)

         Pacific 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.

         Pacific 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.)

         The 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.

         Navigators 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.

         Navigators 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.

         DISCUSSION

         I. Removal Deadline.

         Federal 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 quotations omitted).

         The 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. ยง ...


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