United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
this Court is Plaintiffs' Motion to Remand [Doc. No. 9].
Defendant has filed its Response [Doc. No. 16]. The matter is
fully briefed and at issue.
filed their Petition in the District Court of Logan County,
Oklahoma, on September 1, 2017. Plaintiffs alleged claims for
breach of contract and bad faith. Defendant is a foreign
insurer. Plaintiffs served the summons and petition on the
Oklahoma Insurance Commissioner on September 15, 2017
pursuant to Okla. Stat. tit .36, § 621(B). Defendant
filed its Notice of Removal on October 17, 2017. Plaintiff
alleges the Notice of Removal was untimely as it was not
filed within thirty days of service on the Oklahoma Insurance
Commissioner. Plaintiffs do not challenge removal on any
other basis. In response, Defendant asserts that the
thirty-day period to file Notice of Removal does not begin to
run until the summons and petition are received by Defendant
rather than the date of service on the Oklahoma Insurance
U.S.C. § 1446(b)(1) states that “[t]he notice of
removal of a civil action or proceeding shall be filed within
30 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.” Removal statutes are strictly construed and all
doubts are to be resolved against removal. Fajen v.
Found. Reserve Inc. Co., Inc., 683 F.2d 331, 333
(10th Cir. 1982) (citing Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868,
872, 85 L.Ed. 1214 (1941) and Greenshields v. Warren
Petroleum Corp., 248 F.2d 61, 65 (10th Cir.), cert.
denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957)).
The burden of proof for removal jurisdiction is on the party
seeking removal. Martin v. Franklin Capital Corp.,
251 F.3d 1284, 1290 (10th Cir. 2001), abrogated on
other grounds by Dart Cherokee Basin Operating Co., LLC
v. Owens, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014).
law governing service of process is applied when determining
the time period within which a notice of removal must be
filed. Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 351, 119 S.Ct. 1322, 1327, 143
L.Ed.2d 448 (1999). Oklahoma law provides that service of
process “against a foreign or alien insurer shall be
made only by service of process upon the Insurance
Commissioner.” Okla. Stat. tit. 36, § 621(B).
Service of “legal process against an insurer for whom
the Insurance Commissioner is agent” is complete when
the Commissioner “promptly forward[s] a copy thereof by
mail with return receipt requested to the person last so
designated by the insurer to receive the same.” Okla.
Stat. 36 § 622(A) and (B).
of process, under longstanding tradition in our system of
justice, is fundamental to any procedural imposition on a
named defendant.” Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322,
1326, 143 L.Ed.2d 448 (1999). The legislative history of 28
U.S.C. § 1446 demonstrates Congress' repeated
attempts to account for variances across state laws
“[t]o ensure that the defendant would have access to
the complaint before commencement of the removal
period.” Id. at 351. Likewise, Okla. Stat.
tit. 36, § 622(B) specifically states that service upon
an insurer is not complete until the Insurance Commissioner
forwards a copy of legal process “by mail with return
receipt requested to the person last so designated by the
insurer to receive the same” as provided in Okla. Stat.
tit. 36, § 622(A).
incorrectly asserts that the thirty day period for removal is
calculated under Oklahoma law from the date of service on the
Insurance Commissioner. Plaintiffs' Motion to
Remand, 3. This is contrary to the governing Oklahoma
statutes and this Court's previous determination that the
date upon which service is complete for calculations of
deadlines is the date the Insurance Commissioner forwards the
summons and petition “with return receipt
requested.” See Robison v. Reliance Standard Life
Ins. Co., CIV-14-1262-D, 2015 WL 4647213, at *3 (W.D.
Okla. Aug. 4, 2015) (relying on Okla. Stat. tit. 36, §
622(B) in calculating the deadline for the defendant
insurance company's answer from the date the Insurance
Commissioner forwarded service by mail).
served the Insurance Commissioner on September 15, 2017, but
the Commissioner did not forward the summons and petition by
certified mail until September 19, 2017. Plaintiffs'
Motion to Remand, Exhibit 1 [Doc. No. 9-1], pg. 3;
Defendant's Response, Exhibit 1 [Doc. No. 16-1],
pg. 10. The earliest date from which the time period for
removal can be calculated is September 19, 2017, the
certified mail postage date. Defendant filed its Notice of
Removal on October 17, 2017. Notice of Removal [Doc.
No. 1]; Defendant's Response, pg. 2.
Defendant's Notice of Removal was filed twenty- eight
(28) days from the date service was complete pursuant to
Okla. Stat. tit. 36, § 622(A) and (B) and is, therefore,
timely under 28 U.S.C. § 1446(b)(1).
Motion to Remand is DENIED for the reasons
set forth herein.