Case 3:14-cv-00062-G Document 1 Filed 01/09/14

Page 1 of 4 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RYAN, LLC, Plaintiff, V. WESTCHESTER FIRE INSURANCE COMPANY, Defendant.

Civil Action No. 3:14-cv-00062 Jury Demanded

NOTICE OF REMOVAL Defendant, Westchester Fire Insurance Company (WFIC), removes this civil action originally filed in the 192nd District Court of Dallas County, Texas to the United States District Court for the Northern District of Texas, Dallas Division, pursuant to 28 U.S.C. 1332, 1441 and 1446, and respectfully shows the Court as follows: 1. On or about October 2, 2013, plaintiff Ryan, LLC (Ryan) filed its original

petition in the 192nd District Court of Dallas County, Texas, under Cause No. DC-13-11912 against WFIC. Ryan alleges causes of action against WFIC for declaratory relief, breach of contract, and violations of the Texas Insurance Code.1 2. Ryans counsel e-mailed a courtesy copy of the original petition to WFICs

counsel on October 8, 2013 and asked WFICs counsel to accept service. WFICs counsel informally agreed to do so in the event settlement negotiations did not succeed and Ryan decided to maintain its suit. Settlement negotiations still ongoing as of this writing were not immediately successful, so the parties attorneys informally agreed that WFIC would file its answer by a date certain, ultimately stipulated to be January 10, 2014.

See Exhibit 1, Plaintiffs Original Petition.

_____________________________________________________________________________________________________________________ NOTICE OF REMOVAL PAGE 1

Case 3:14-cv-00062-G Document 1 Filed 01/09/14

Page 2 of 4 PageID 2

3.

Because (1) no summons has been served upon WFIC or WFICs counsel;

(2) there has been no waiver of service under Texas Rule of Civil Procedure 119; and (3) WFIC will not have waived service under Texas Rules of Civil Procedure 120 and 121 until it actually files its answer in Court in fulfillment of the above-described informal agreement, the 30-day deadline for removal under 28 U.S.C. 1446(b) has not yet begun to run, and this notice of removal is timely.2 4. The amount in controversy, exclusive of interest and costs, exceeds $75,000.

Ryan states in the Civil Cover Sheet accompanying its original petition it seeks damages over $200,000 and less than $1,000,000.3 5. Ryan is a Delaware limited liability company with its principal place of business

See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999) (holding that if the initial pleading is filed before the summons is served, the 30-day removal period begins on the date the summons is served); George-Baunchand v. Wells Fargo Home Mortgage, Inc., No. H103828, 2010 WL 5173004, at *3-4 (S.D. Tex., Dec. 14, 2010) (Rosenthal, J.) (holding under facts similar to those in this case that the 30-day removal period did not begin to run until the defendant voluntarily answered and thereby waived service under Texas Rules of Civil Procedure 120 and 121); see also Lerma v. Arends, No. 1:11CV00533LJOMJS, 2011 WL 2516173, at *5 (E.D. Cal., Jun. 22, 2011) (Counsel for URS FSS agreed to accept service on behalf of the client, however it did not waive the right to receive formal service of the Amended Complaint. Accordingly, the Magistrate Judge's finding that the Notice of Removal was timely was not clearly erroneous or contrary to law.); Romero v. Randle Eastern Ambulance Service, Inc., No. 0823179CIV, 2009 WL 347412, at *3 (S.D. Fla., Feb. 11, 2009) (defendants counsels informal acceptance of service of complaint without compliance with state laws requirements for formal waiver of service did not start the 30-day clock for removal); Collins v. Pontikes, 447 F. Supp. 2d 895, 898 (N.D. Ill. 2006) (thirty-day period for filing notice of removal began to run when first defendant entitled to remove received the summons and complaint, even though defendant's counsel had earlier agreed to accept service on behalf of defendant after receiving the complaint: [I]t appears that plaintiffs consider an agreement to accept service, which they focused on in their motion, as tantamount to a waiver of service. Plaintiffs fail to present any argument or case law that explains how an attorney's agreement to accept service on behalf of a client amounts to a waiver of service.).
3

See Exhibit 2, Civil Cover Sheet.

_____________________________________________________________________________________________________________________ NOTICE OF REMOVAL PAGE 2

Case 3:14-cv-00062-G Document 1 Filed 01/09/14

Page 3 of 4 PageID 3

in Texas.4 Each of its members is a Texas citizen.5 For purposes of diversity jurisdiction, Ryan is a citizen of the states of Delaware and Texas. 6. WFIC is a Pennsylvania corporation with its principal place of business in

Pennsylvania.6 For purposes of diversity jurisdiction, WFIC is a citizen of Pennsylvania. 7. Therefore, complete diversity exists between the parties, and because the amount

in controversy exceeds $75,000, this Court has subject matter jurisdiction based on diversity of citizenship. 8. WFIC, pursuant to 28 U.S.C. 1446(a), 1447(b), and 1449, attaches copies of the

docket sheet dated January 8, 20147 and the state court pleadings filed as of todays date, to this Notice of Removal. The documents filed in state court include the original petition and the civil cover sheet, which are Exhibits 1 and 2 hereto. 9. WFIC demands a trial by jury on all issues of fact, if any.

WHEREFORE, WFIC respectfully requests the Court to sustain this removal and retain jurisdiction over the suit, and to grant all other and further relief to which WFIC may be entitled.

See Exhibit 1 at 1; see also Exhibit 3, Franchise Tax Account Status and Officers and Directors information downloaded from the Texas Comptrollers website (ourcpa.cpa.state.tx.us) on January 9, 2014, of which WFIC asks the Court to take judicial notice as a public record. See Exhibit 3. See Exhibit 1 at 1-2. See Exhibit 4.

5 6 7

_____________________________________________________________________________________________________________________ NOTICE OF REMOVAL PAGE 3

Case 3:14-cv-00062-G Document 1 Filed 01/09/14

Page 4 of 4 PageID 4

Respectfully submitted, /s/ Joseph A. Ziemianski Joseph A. Ziemianski Texas State Bar No. 00797732 E-mail: jziemianski@cozen.com Bryan P. Vezey Texas State Bar No. 00788583 E-mail: bvezey@cozen.com COZEN OCONNOR One Houston Center 1221 McKinney St., Suite 2900 Houston, Texas 77010 Telephone: (832) 214-3900 Telecopier: (832) 214-3905 Kendall K. Hayden Texas State Bar No. 24046197 COZEN OCONNOR 1717 Main Street, Suite 3400 Dallas, Texas 75201 Telephone: (214) 462-3000 Telecopier (214) 462-3299 E-mail: khayden@cozen.com ATTORNEYS FOR DEFENDANT, WESTCHESTER FIRE INSURANCE COMPANY CERTIFICATE OF SERVICE I certify that a true copy of this document was served on Beth D. Bradley Roshanak Khosravighasemabadi Tollefson Bradley Mitchell & Melendi, LLP 2811 McKinney Ave., Ste. 250 Dallas, Texas 75204 via electronic mail and certified mail, return receipt requested on January 9, 2014.

/s/ Joseph A. Ziemianski Joseph A. Ziemianski

_____________________________________________________________________________________________________________________ NOTICE OF REMOVAL PAGE 4