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Tucci v. Hartford Financial Services Group

February 25, 2009


The opinion of the court was delivered by: Simandle, District Judge



This matter is before the Court on Plaintiff Peter A. Tucci, Sr.'s motion to remand this action to state court [Docket Item 9]. The sole issue before the Court is whether the thirty-day statutory period to seek removal under 28 U.S.C. § 1446(b) commences, when the summons and complaint are served only on a defendant's statutory agent, here, the Commissioner of Banking and Insurance. For the reasons outlined below, the Court will adopt the reasoning of the majority of courts to have considered this question and hold that where service is made on a statutory agent the thirty-day period under Section 1446(b) does not begin until defendants actually receive the summons and complaint. Consequently, the Court will deny Plaintiff's motion to remand because Defendants' notice of removal was timely.


This action, which involves a dispute over insurance coverage, began in the Superior Court of Burlington County, New Jersey in July, 2008. There is no dispute as to the material facts at issue here. On August 29, 2008, Plaintiff served a copy of a summons and complaint in this action on the New Jersey Commissioner of Banking and Insurance ("the Commissioner"), as permitted by Section 17:32-2(c), N.J. Stat. Ann. (Decl. of Pl.'s Counsel; Pl. Ex. 1.) On September 4, 2008, the Commissioner mailed the summons and complaint to Defendant Twin City Fire Insurance Company.*fn1 (Def. Ex. 1.) On October 3, 2008, thirty-five days after the Commissioner was served, but twenty-nine days after the Commissioner mailed the initial pleadings to Defendants, Defendants filed a notice of removal with this Court [Docket Item 1]. Plaintiff's motion to remand followed. On February 23, 2009, the Court heard oral argument and reserved decision.


Plaintiff contends that Defendants did not file their notice of removal within thirty days of service of process as required by 28 U.S.C. § 1446(b). This presents the Court with the narrow question of when the thirty-day period commences under Section 1446(b) if process is served only on a statutory agent. The Court begins with the legislative history of that provision, keeping in mind that "the statute governing removal . . . must be strictly construed against removal." Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir. 2005).

Section 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b). Though this provision has evolved since originally enacted in 1948, Congress has consistently sought to ensure that a defendant has "adequate time" to consider removal after learning not only that it was the subject of a lawsuit, but also the basis for removal.*fn2 Murphy Bros. Inc. v. Michetti Pip Stringing, Inc., 526 U.S. 344, 351-52 (1999). With the most recent relevant amendment in 1965, Congress increased the removal period from twenty to the current thirty days. Act of Sept. 29, 1965, Pub. L. No. 89-215, 79 Stat. 887 (1965) (prior to 1977 amendment). "The purpose of [that] amendment was to insure that defendants would have an adequate period of time to evaluate the need for removal." Burton v. Continental Casualty Co., 431 F. Supp. 2d 651, 656 (S.D. Miss. 2006) (citing S. Rep. No. 712, at 2 (1965)).

With this history in mind, the Court returns to the present question. Though there is no published circuit court opinion on the subject, the vast majority of courts to consider this question have held that the thirty-day period for removal does not commence with service on a statutory agent, but instead when the defendant receives the summons and complaint.*fn3 See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3732 (3d ed. 1998 & Supp. 2008) ("[I]t now appears to be settled law that the time for seeking removal begins to run only when the defendant or someone who is serving as the defendant's agent in fact receives the process."). The Court will adopt the majority rule, the product of collective wisdom.

Statutory agents, unlike agents in fact, have both limited purpose and limited power. In fact, they "are not true agents but are merely a medium for transmitting the relevant papers." Wright & Miller, supra, at 5; Taphouse v. Home Ins. Co., 885 F. Supp. 158, 160 (E.D. Mich. 1995); see Skidaway Associates, Ltd. v. Glen Falls Ins. Co., 738 F. Supp. 980, 982 (D.S.C. 1990). This is equally true in New Jersey, where a foreign company will not be admitted until it [c]onstitutes, by a duly executed instrument filed in the department, the commissioner and his successor in office its true and lawful attorney, upon whom all original process in any action or legal proceeding against it may be served, and therein agrees that any original process against it which may be served upon the commissioner shall be of the same force and validity as if served on the company, and that the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this State. . .

N.J. Stat. Ann. § 17:32-2(c). The Eastern District of Michigan, interpreting a similar statute, had this to say:

The Michigan statute requires foreign insurers to stipulate that any service of process upon the Insurance Commissioner "shall have the same effect as if personally served on the company." This does not, however, effectuate the appointment of the Insurance Commissioner as a general agent of the company. Certainly, the statute provides an effective means of facilitating suit against a foreign insurer, making location of such companies and enforcement of insurance contracts against them more likely. Nevertheless, ...

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