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David M. Bell, State Bar No. 006818

CHRISTIAN DICHTER & SLUGA, P.C.

Biltmore Office

2198 E. Camelback Road, Suite 320

Phoenix, AZ 85016

Phone: (602) 354-0050

info@cdslawfirm.com

dbell@cdslawfirm.com

Attorneys for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Kasper Smoke Kastle, LLC, an Arizona

limited liability company,

Plaintiff,

vs.

Atlantic Casualty Insurance Company, A

North Carolina company,

Defendant.

No.

NOTICE OF REMOVAL BY

DEFENDANT OF ACTION UNDER 28

U.S.C. §§ 1332, 1441, and 1446

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendant Atlantic Casualty

Insurance Company (“ACIC”), files this Notice of Removal to remove Maricopa County

Superior Court Action No. CV2018-001834, captioned Kasper Smoke Kastle, LLC v.

Atlantic Casualty Insurance Company to this Federal Court. The basis for removal is

diversity jurisdiction pursuant to 28 U.S.C. § 1332. This Notice is supported by the

following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

1. Removal Is Proper Because Defendant Has Complied With 28 U.S.C. § 1446

For removal to be proper, the removing party must file a notice of removal that

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plainly identifies the basis for removal and comply with certain procedural requirements.1

Because Defendant has satisfied both of these criteria, removal of the Arizona Superior

Court action to this Court is proper.

A. This Court Has Diversity Jurisdiction Pursuant To 28 U.S.C. § 1332

One of the bases for removal is diversity of citizenship between the parties. In order

for diversity to form a basis for removal, there must be complete diversity between the

parties, and the amount in controversy must exceed $75,000.2 Both requirements are met in

this case.

Regarding citizenship, Plaintiff has stated Kasper Smoke Kastle, LLC is an Arizona

limited liability company authorized to do business in the State of Arizona, County of

Maricopa, and has been conducting business at 1718 North 16th Street, Phoenix, AZ 85006

at all pertinent times.3 Defendant ACIC is a North Carolina company with its principal place

of business in Goldsboro, North Carolina. Accordingly, complete diversity of citizenship

exists between Plaintiff and Defendant ACIC.

With respect to the amount in controversy, Plaintiff’s Complaint does not itemize a

specific amount of damages.4 Plaintiff’s complaint alleges that its claim arises from ACIC’s

failure to provide full payment to Plaintiff for loss in light of fire damage to the property,

including business personal property.5 Plaintiff submitted a sworn proof of loss for the

building damage which reflects a total of $74,326.43.6 Plaintiff’s sworn proof of loss for

code upgrades reflects a total of $10,000.7 The total claim for the structure and code

upgrades is $84,326.43. Brown O’Haver also submitted estimates reflecting replacement

1 See 28 U.S.C. § 1446.

2 See 28 U.S.C. § 1332.

3 See Exhibit 2 at ¶¶1, 5.

4 See Exhibit 2.

5 See Exhibit 2 at ¶¶6, 16.

6 See Exhibit 6 at 1.

7 See Exhibit 6 at 2.

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cost values for the structure of $106,063.608and for the business personal property of

$254,646.919 which together total $360,710.51. Considering Plaintiff’s additional claims for

extra-contractual and punitive damages, as well as attorneys’ fees and costs, the amount in

controversy clearly exceeds $75,000.

Both requirements for diversity jurisdiction have been met here and removal is

proper under 28 U.S.C. §§ 1332 and 1441(a).

B. Defendants Have Met All Procedural Requirements Set Forth In 28 U.S.C. § 1446

To Remove This Action

Plaintiff’s Complaint was filed on February 21, 2018. Plaintiff served the

Complaint through the Arizona Department of Insurance. The document was delivered to

the Department of Insurance on February 26, 2018.10 Under Federal Law, the deadline for

removal is thirty days from an insurer’s actual receipt of the initial pleading; the time for

removal does not begin to run on the date when a state agency responsible for regulating

insurers receives the complaint.11 This Notice of Removal is filed within thirty days of

delivery of the complaint to the Department of Insurance on February 26, 2018 and is

therefore timely.

8 See Exhibit 7 at 14.

9 See Exhibit 7 at 25.

10 See Exhibit 1.

11 See Morse, LLC v. United Wisconsin Life Ins. Co., 356 F. Supp. 2d 1296, 1298 (S.D.

Fla. 2005) (Finding the thirty-day period for filing a notice of removal did not begin to

run until the defendant insurer was mailed and received a copy of the complaint that

had been served by substituted service on state insurance commissioner); Taphouse v.

Home Ins. Co., Inc., 885 F. Supp. 158 (E.D. Mich. 1995) (same); see also Nucor Corp.

v. Employers Ins. Co. of Wausau, 2012 WL 3242279 *5 (D. Ariz. Aug. 7, 2012)

(noting that “the overwhelming weight of the authority is that ‘where service of process

is effected on a statutory agent, the time for removal does not begin to run until the

defendant has actually received a copy of the process.’”) (citing Lilly v. CSX Transp.,

Inc., 186 F.Supp.2d 672, 675 (S.D.W.Va.2002)).

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In addition, Defendant has complied with all further procedural requirements, see 28

U.S.C. § 1446(a) and (d), including:

1. Attaching copies of the original Summons, Complaint, Certificate of Compulsory

Arbitration, Jury Demand and Civil Cover Sheet in their possession. See

Exhibits 1-5.

2. Serving a copy of this notice upon Plaintiff.

3. Filing a copy of this notice with the state court clerk pursuant to Rule 3.7 of the

Local Rules of the United States District Court for the District of Arizona.

4. This notice is signed pursuant to Fed. Civ. Proc. Rule 11, as required by Local

Rule 3.7.

DATED this 27th day of March 2018.

CHRISTIAN, DICHTER & SLUGA, P.C.

By: /s/ David M. Bell

David M. Bell

Attorneys for Defendant

CERTIFICATE OF SERVICE

I certify that on the 27th day of March 2018, I electronically transmitted the

foregoing document to the Clerk’s Office for filing and provided a copy to the following

parties via First Class Mail:

Michael N. Poli

Lawrence R. Moon

Merlin Law Group, P.A.

2999 North 44th Street, Suite 520

Phoenix, AZ 85018

Tel: 480-315-9980

Fax: 480-315-9984

Attorneys for Plaintiff

By: /s/ Harleigh Scott

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