Colo. Bankers Life Ins. Co. v. AT Denmark Investments, APS, 5:20-CV-409-D

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Citation: 526 F.Supp.3d 118
• Docket Number: No. 5:20-CV-409-D,5:20-CV-409-D
• Parties: COLORADO BANKERS LIFE INSURANCE COMPANY, Plaintiff, v. AT DENMARK INVESTMENTS, APS, Defendant.
• Decision Date: 18 March 2021

526 F.Supp.3d 118

COLORADO BANKERS LIFE INSURANCE COMPANY, Plaintiff,
v.
AT DENMARK INVESTMENTS, APS, Defendant.

No. 5:20-CV-409-D

United States District Court, E.D. North Carolina, Western Division.

Signed March 18, 2021

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Caitlin McLaughlin Poe, Camden R. Webb, John W. Holton, Lauren E. Fussell, Williams Mullen, 301 Fayetteville Street, Suite 1700, Post Office Box 1000 (Zip 27602), Raleigh, NC 27601, for Plaintiff.

Aaron Zachary Tobin, Condin Tobin Sladek Thornton, PLLC, 8080 Park Lane, Suite 700, Dallas, TX 75231, Matthew W. Krueger-Andes, Fox Rothschild LLP, 101 North Tryon Street, Suite 1300, Charlotte, NC 28246, Matthew Nis Leerberg, Fox Rothschild LLP, 434 Fayetteville Street, Suite 2800, Raleigh, NC 27601, for Defendant.

ORDER

JAMES C. DEVER III, United States District Judge

On July 24, 2020, AT Denmark Investments, ApS ("AT Denmark" or "defendant") removed this case from Wake County Superior Court [D.E. 1] and filed exhibits in support [D.E. 1-1, 1-2, 1-3, 1-4]. On August 20, 2020, Colorado Bankers Life Insurance Company ("CBL" or "plaintiff") moved to remand and for attorneys’ fees [D.E. 20], and filed exhibits [D.E. 20-1, 20-2] and a memorandum in support [D.E. 21]. On September 10, 2020, AT Denmark responded in opposition [D.E. 23], and filed exhibits in support [D.E. 23-1, 23-2]. On September 24, 2020, CBL replied [D.E. 24]. On October 29, 2020, AT Denmark filed a sur-reply [D.E. 30]. As explained below, the court grants

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CBL's motion to remand and for attorneys’ fees, denies AT Denmark's motion to dismiss under Rules 12(b)(2), (4), and (5), and dismisses as moot CBL's motion to consolidate.

I.

CBL is a North Carolina domestic insurer. See [D.E. 21] 1. AT Denmark is a foreign corporation headquartered in Denmark. See [D.E. 23] 1. On October 31, 2017, AT Denmark and the original lender entered into a loan agreement whereby the original lender extended to AT Denmark as borrower a credit facility in the amount of $8,642,583.66. See [D.E. 19-1]; [D.E. 21] 1–2; [D.E. 23] 2. Through a series of assignments, CBL became both lender and agent on the loan agreement. See [D.E. 21] 2.

Section 10.12 of the loan agreement is titled " GOVERNING LAW ; JURISDICTION ; ETC ." [D.E. 19-1] 5. Section 10.12(d) provides: " EACHPARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.11. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW ." Id.; see [D.E. 21] 2. Section 10.11, titled " NOTICES ," states in relevant part that all notices "shall be deemed to have been validly served, given, or delivered ... one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid ... which shall be addressed to the party to be notified and sent to the address ... set forth below[.]" [D.E. 19-1] 4; see [D.E. 21] 2. Section 10.11 listed AT Denmark's address as

AT Denmark Investments, ApS2222 Sedwick Rd., Durham, NC 27713Attn: ChairmanEmail: gel@eliequity.com

D.E. 19-1] 4; see [D.E. 21] 2.

On June 5, 2020, following a payment dispute, CBL filed a complaint against AT Denmark in Wake County Superior Court. See [D.E. 1-1]; [D.E. 21] 2; [D.E. 23] 2. On June 24, 2020, CBL filed an affidavit of service attesting that CBL deposited "the Summons and Complaint ... with Federal Express Corporation (FedEx), a reputable overnight courier with all charges prepaid, in Raleigh, North Carolina, for overnight delivery, proof of signature required, to Defendant AT Denmark Investments, ApS, Attn: Chairman." [D.E. 1-2] 2. CBL's affidavit of service also stated that "[t]he Summons and Complaint was received by Defendant on June 12, 2020, at 2222 Sedwick Road, Durham, North Carolina 27713." Id. CBL attached as an exhibit to its affidavit of service the FedEx receipt confirming delivery.

The receipt states that FedEx delivered the summons and complaint to AT Denmark on June 12, 2020, at 8:46 a.m., that the package was "[s]igned for by: R. Wicker," and the receipt displays an image of the signature that reads "C. 19." Id. at 5.

Rene Wicker ("Wicker"), the "R. Wicker" to whom the FedEx receipt refers, is an administrative assistant with Global Growth, Inc., located at 2222 Sedwick Rd., Durham, North Carolina 27713. See [D.E. 23-1] 2. Wicker is not an employee, agent, officer, or director of AT Denmark. See id.; [D.E. 23-2] 2. Wicker has "no recollection of the FedEx package." [D.E. 23-1] 3. Wicker also claims that she did not provide the package containing the complaint and summons to Greg Lindberg ("Lindberg"), the "ultimate owner of AT Denmark." [D.E. 23-2] 2; see [D.E. 23-1] 3. The signature "C. 19" may belong to the FedEx employee who delivered the package because some FedEx delivery personnel have adopted the practice of signing the names of persons who receive packages to decrease in-person contact during the COVID-19 pandemic. See [D.E. 23-1] 2–3; [D.E. 23] 3, 5.

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On July 16, 2020, CBL moved for entry of default. See [D.E. 7-3] 2. That same day, the Assistant Clerk of Superior Court for Wake County entered default because AT Denmark "failed to answer or otherwise move in response" to CBL's complaint. Id. On July 22, 2020, AT Denmark moved to set aside entry of default. See [D.E. 7-2]. Two days later, AT Denmark removed the action to this court. See [D.E. 1].

II.

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the [federal] district courts ... have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). To remove a civil action from state to federal court, a defendant must file a notice of removal "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 ...." 28 U.S.C. § 1446(b). "The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) ; see Flores v. Ethicon, Inc., 563 F. App'x 266, 268 (4th Cir. 2014) (unpublished).

"Removal statutes ... must be strictly construed, inasmuch as the removal of cases from state to federal court raises significant federalism concerns." Barbour v. Int'l Union, 640 F.3d 599, 605 (4th Cir. 2011) (en banc), abrogated on other grounds by 28 U.S.C. 1446(b)(2)(B) ; see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ; Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934). "Doubts about the propriety of removal should be resolved in favor of remanding the case to state court." Elliott v. Am. States Ins. Co., 883 F.3d 384, 390 (4th Cir. 2018) ; see Common Cause v. Lewis, 956 F.3d 246, 252 (4th Cir. 2020) ; Palisades Collections LLC v. Shorts, 552 F.3d 327, 333–34 (4th Cir. 2008) ; Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005) ; Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815–16 (4th Cir. 2004) (en banc); Mason v. Int'l Bus. Machs., Inc., 543 F. Supp. 444, 446 n.3 (M.D.N.C. 1982). Where notice is untimely under section 1446, a defendant forfeits its right to remove a state court civil action to federal court, and the case should be remanded to state court See Barbour, 640 F.3d at 611 ("If you do not seek removal within the thirty-day window, you have forfeited your right to remove."); Northrop Grumman Tech. Servs., Inc. v. Dyncorp Int'l LLC, No. 1:16cv534(JCC/IDD), 2016 WL 3144330, at *4 (E.D. Va. June 6, 2016) (unpublished), aff'd, 865 F.3d 181 (4th Cir. 2017) ; Parker v. Johnny Tart Enters., Inc., 104 F. Supp. 2d 581, 585 (M.D.N.C. 1999).

CBL contends that the court should remand this case to Wake County Superior Court because CBL validly served AT Denmark on June 12, 2020, and AT Denmark waited 42 days to remove the action to this court. See [D.E. 21] 4–8. In support, CBL asserts that its service of process was valid under both Rule 4 of the North Carolina Rules of Civil Procedure and under the terms of the parties’ loan agreement. See id. Thus, because AT Denmark failed to remove the action "within the thirty-day window, [AT Denmark] forfeited [its] right to remove." Barbour, 640 F.3d at 611.

AT Denmark responds that remand is inappropriate because its notice of removal was timely. See [D.E. 23] 3–7. In support, AT Denmark argues that CBL never validly served process under North Carolina

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law or under the Hague Convention. See id.; [D.E. 30]. Accordingly, AT Denmark contends that it timely removed the action.

A.

CBL contends that service of process is valid and complete under Rule 4 of the North Carolina Rules of Civil Procedure. See [D.E. 21] 7. The parties’ arguments require this court to apply North Carolina law. Accordingly, this court must predict how the Supreme Court of North Carolina would rule on any disputed state law issues. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage...