Dallas Fort Worth Insurance Lawyer Blog
Here is a 2021, opinion from the Northern District of Texas, Dallas Division, wherein the insurance company missed a deadline and tried to excuse the mistake. The styled of the opinion is, Aldo Cueller v. Safeco Insurance Company of Indiana.
Aldo sued Safeco in state court for breach of contract and various violations of the Texas Insurance Code after Safeco denied Also’s claim for water damage to is property. After the deadline for removal passed, Safeco filed a Notice of Removal and Aldo responded with a Motion to Remand arguing the removal was untimely.
Aldo filed the suit on May 25, 2021, and served Safeco’s registered agent in Texas on June 4, 2021.
Safeco answered the complaint in state court on June 28, 2021. On July 15,
2021, Safeco filed a notice of removal to this Court, 41 days after service of the
complaint.
Pursuant to 28 U.S.C., Section 1441(a), “[A]ny civil action brought in a State court of which the district courts of the United States 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.” However, Section 1446(b)(1) says:
The 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, or within 30 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.
The removal statutes are strictly construed, and any doubts are resolved in favor of remand. A defendant who does not timely assert the right to removal loses that
right.
In some extraordinary circumstances, equitable tolling may be applicable to extend the deadline for removal. The doctrine of equitable tolling allows the court to extend a deadline where the litigant shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The decision to invoke equitable tolling is left to the discretion of the district court.
It is undisputed that Safeco filed its notice of removal after the 30-day statutory deadline lapsed. But Safeco urges the Court to grant it leave to file its notice of removal because the motion is sought to do justice, not to delay. However,
equitable tolling requires the litigant to demonstrate its diligence under the
circumstances. Safeco does not allege that it was diligent. Instead, Safeco admits
that it inadvertently filed the removal late because Safeco’s counsel and his assistant were on vacation, and the deadline was miscalendared.
As such, the Court determines that Safeco has not established extraordinary
circumstances necessary to warrant equitable tolling. Thus, the Motion To Remand is Granted.