Preview
Filing # 122688924 E-Filed 03/08/2021 03:07:38 PM
IN THE CIRCUIT COURT OF THE 17™
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
JOSE RODRIGUEZ, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO.: CACE-20-017538 (03)
Vv.
CELTIC INSURANCE COMPANY
d/b/a AMBETTER FROM SUNSHINE
HEALTH,
Defendant.
DEFENDANT’S NOTICE OF SUPPLEMENTAL AUTHORITY
Defendant Celtic Insurance Company (“Celtic”) hereby gives notice of the following
Court Orders as supplemental authority in support of Celtic’s Motion to Set Aside Clerk’s
Default:
1. Order Deferring Ruling on Motion for Default Judgment and Motion to Set Aside
Default dated December 29, 2021, in Melnik v. Celtic Insurance Co., Case No. COCE-20-
022679, attached as Exhibit 1.
2. Order Vacating December 10, 2020 Default and Denying Plaintiff's Verified
Motion to Strike Defendant’s Pleading for Fraud on the Court and for Attorneys’ Fees and Costs
dated January 6, 2021, in Melnik v. Celtic Insurance Co., Case No. COCE-20-022679, attached
as Exhibit 2.
3. Order Denying Motion to Remand dated February 10, 2021, in Orthopaedic Care
Specialists, PL. v. Celtic Insurance Co., Case No. 20-82358-CIV-Cannon, attached as Exhibit 3.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/08/2021 03:07:38 PM.****Respectfully submitted,
Hogan Lovells US, LLP
600 Brickell Avenue
Suite 2700
Miami, FL 33131
Telephone: (305) 459-6500
Facsimile: (305) 459-6550
Craig H. Smith, Esq.
Florida Bar Number: 96598
Florida Bar Board Certified — Health Law
craig.smith@hoganlovells.com
James L. VanLandingham, Esq.
Florida Bar Number: 106761
James. vanlandingham@hoganlovells.com
Gladys.cata@hoganlovells.com (secondary)
By:__/s/Craig H. Smith
Craig H. Smith, Esq.
Counsel for Celtic Insurance Company
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 8, 2021, a true and correct copy of the foregoing
was served on all counsel of record via Florida’s e-Filing portal electronic filing system.
/s/ Craig H. SmithEXHIBIT 1Filing #11
8825223 E-Filed 12/29/2020 12:59:12 PM
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. COCE20022679 DIVISION 49 JUDGE Nina W. Di Pietro
Yevgeny Melink
Plaintiff(s) / Petitioner(s)
v.
Celtic Insurance Company
Defendant(s) / Respondent(s)
/
ORDER DEFERRING RULING ON MOTION FOR DEFAULT JUDGMENT AND
MOTION TO SET ASIDE DEFAULT
THIS CAUSE having come on to be considered on December 29, 2020, regarding Plaintiff's
Motion for Default Judgment and Defendant's Motion to Set Aside Default, the Court having reviewed
said Motions and the court file, having heard from both parties remotely via Zoom/teleconference, and
being otherwise advised in the Premises, it is hereupon,
5.
6.
ORDERED AND ADJUDGED that the Court finds as follows:
. The Court defers ruling on Plaintiff's Motion for Default Judgment and Defendant's Motion to Set
Aside Default.
. The Court finds that Defendant has met the elements of acting with diligence and asserting
meritorious defenses.
. The Court defers ruling on the element of excusable neglect.
. Plaintiff shall have until January 5, 2021 to provide case law via email to the Court (with
Defendant's counsel cc'ed) as to whether Plaintiff is entitled to a full evidentiary hearing to rebut
the assertions made in Defendant's Declaration of Aurora Loaiza as it relates to excusable neglect.
If the Court finds that the case law supports Plaintiff's entitlement to a full evidentiary hearing, the
Court will coordinate with the parties to schedule that hearing.
If the Court finds that the case law does not support Plaintiff's entitlement to a full evidentiary
hearing, the Court will issue a ruling on the evidence of record as of today's hearing.CaseNo: COCE20022679
Page 2 of 2
DONE and ORDERED in Chambers, at Broward County, Florida on 12-29-2020.
cocued\:$o7o 1g -2F = MA
COCE20022679 12-29-2020 12:59 PM
Hon. Nina W. Di Pietro
COUNTY JUDGE
Electronically Signed by Nina W. Di Pietro
Copies Furnished To:
Craig H Smith , E-mail : gladys.cata@hoganlovells.com
Craig H Smith , E-mail : craig.smith@hoganlovells.com
James L Vanlandingham , E-mail : James. Vanlandingham@hoganlovells.com
Maria T. Santi , E-mail : health@mellawyers.com
Maria T. Santi , E-mail : msanti@mellawyers.comEXHIBIT 2Filing # 119185947 E-Filed 01/06/2021 06:15:06 PM
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. COCE20022679 DIVISION 49 JUDGE Nina W. Di Pietro
Yevgeny Melink
Plaintiff(s) / Petitioner(s)
v.
Celtic Insurance Company
Defendant(s) / Respondent(s)
/
ORDER VACATING DECEMBER 10, 2020 DEFAULT AND DENYING
PLAINTIFF’S VERIFIED MOTION TO STRIKE DEFENDANT’S PLEADING FOR
FRAUD ON THE COURT AND FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come on to be considered on December 29, 2020, regarding
Defendant’s Motion to Set Aside Clerk’s Default and Plaintiff's Verified Motion to Strike
Defendant’s Pleading for Fraud on the Court and for Attorney's Fees and Costs, the Court
having reviewed said Motions and the court file, having heard from both parties remotely via
Zoom/teleconference, and being otherwise advised in the Premises, it is hereupon,
=
ORDERED AND ADJUDGED as follows:
. The Court previously ruled on December 29, 2020 that Defendant had successfully met
the elements of acting with diligence and asserting meritorious defenses.
. The Court deferred ruling on the issue of excusable neglect, specifically to provide
Plaintiff with an opportunity to provide case law establishing that Plaintiff (the non-moving
party) had a right to a full evidentiary hearing to rebut the assertions made in Defendant's
Declaration of Aurora Loaiza.
. The Court reviewed Plaintiff's counsel’s January 5, 2021 email containing a cover letter
with case law summary and 11 attached cases.
. The Court additionally reviewed Defendant’s counsel’s January 5, 2021 email with its
case law summary and five attached cases.
. Based upon a review of all of the above, the Court finds that Plaintiff has not provided
case law that supports entitlement for the non-moving party to an evidentiary hearing.
. Rather, the Court finds instruction from one of the cases Plaintiff provided, Trupid v.
Wallquist, 605 So.2d 1295 (Fla. 4 DCA 1992). Trupid involved, “...various affidavits of
the parties and witnesses which present[ed] conflicting facts.” /d. at 1296. There, the
appellate court upheld the trial court’s ruling, which was made solely on consideration ofCaseNo: COCE20022679
Page 2 of 2
competing affidavits. Notably, the Fourth District Court of Appeals affirmed the trial court's
order, rather than remanding the matter back for an evidentiary hearing. /d.
7. After consideration of the Declaration of Aurora Loaiza and Plaintiff's Verified Motion to
Strike Defendant's Pleading for Fraud on the Court and for Attorney’s Fees and Costs,
the Court finds that Defendant has met the element of excusable neglect.
8. Therefore, the Court hereby Grants Defendant’s Motion to Set Aside Clerk’s Default,
Denies Plaintiff's Verified Motion to Strike Defendant's Pleading for Fraud on the Court
and for Attorney’s Fees and Costs, vacates the Order Granting Judicial Default entered
on December 10, 2020, and provides Plaintiff with 10 days to file a Reply to Defendant's
Answer and Affirmative Defenses.
DONE and ORDERED in Chambers, at Broward County, Florida on 01-06-2021.
COCE20022679 01-06-2021 2:51 PM
Hon. Nina W. Di Pietro
COUNTY JUDGE
Electronically Signed by Nina W. Di Pietro
Copies Furnished To:
Craig H Smith , E-mail : gladys.cata@hoganlovells.com
Craig H Smith , E-mail : craig.smith@hoganlovells.com
James L Vanlandingham , E-mail : James. Vanlandingham@hoganlovells.com
Maria T. Santi , E-mail : health@mellawyers.com
Maria T. Santi , E-mail : msanti@mellawyers.comEXHIBIT 3Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 1 of5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
‘WEST PALM BEACH DIVISION
CASE NO. 20-82358-CIV-CANNON/Brannon
ORTHOPAEDIC
CARE SPECIALISTS, P.L.,
Plaintiff,
v.
CELTIC INSURANCE COMPANY,
d/b/a Ambetter from Sunshine Health,
Defendant.
/
ORDER DENYING PLAINTIFF’S MOTION TO REMAND
THIS MATTER comes before the Court on Plaintiff's Motion to Remand [ECF No. 9],
Defendant’s Response in Opposition [ECF No. 11], and Plaintiff's Reply in Support of Remand
[ECF No. 15]. For the reasons set forth below, Plaintiff's Motion to Remand [ECF No. 9] is
DENIED.
Background
On September 25, 2020, Plaintiff filed this case in the Circuit Court of the Fifteenth Judicial
Circuit in and for Palm Beach County, Florida, seeking reimbursement for the emergency medicine
services its professionals were alleged to have rendered to a member of the Celtic Insurance
Company [ECF No. 1-2]. On October 1, 2020, Plaintiff served the complaint and summons upon
the Chief Financial Officer (CFO) of the State of Florida pursuant to Fla. Stat. §§ 624.422 and
624.423, which authorize the Florida CFO to accept service of process on behalf of all insurers
licensed to do business within the state [ECF No. 9, pp. 2-3]. On October 5, 2020, the CFO
prepared its “Notice of Service of Process” indicating that a copy of the complaint was emailed toCase 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 2 of 5
CASE NO. 20-82358-CIV-CANNON/Brannon
Defendant’s registered agent [ECF No. 9-1]. And on December 18, 2020, Defendant removed this
case to federal court pursuant to 28 U.S.C. §§ 1332(a), 1441, 1446, and 1447 [ECF No. 1].
The parties do not dispute that diversity of citizenship exists or that the amount in
controversy exceeds $75,000.00. 28 U.S.C. § 1332. Rather, Plaintiff argues that Defendant’s
removal to this Court was untimely under 28 U.S.C. § 1446(b), because the 30-day time limit for
removal began to run when the CFO of the State of Florida emailed the summons and complaint
to Defendant (October 1, 2020) [ECF No. 9, pp. 2-3]. Defendant responds that the 30-day period
did not commence until it actually received a copy of the summons and complaint, which it states
took place on November 23, 2020—the date Defendant’s designee first learned that a lawsuit had
been filed against Defendant [ECF No. 1 5-8]. According to Defendant, a faulty email address
on file with the Florida CFO prevented it from discovering the complaint until November 23, 2020,
making its removal on December 18, 2020, timely [ECF No. 11, pp. 3-4].
Discussion
Plaintiff's motion to remand presents the following question: when service is effected on a
statutory agent (here, Florida’s CFO) rather than on an agent appointed by Defendant, does the
time to remove the action under 28 U.S.C. § 1446(b) commence when the Defendant actually
receives a copy of the complaint (as Defendant says happened on November 23, 2020), or does it
start when the Plaintiff provides the statutory agent with a copy of the complaint and summons (as
Plaintiff says happened on October 1, 2020)? Based on the statutory text of 28 U.S.C. § 1446(b)
and supporting authority, the Court agrees with Defendant that actual receipt by a defendant is
required to start the 30-day removal clock.
Section 1446(b) provides as follows:
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
2Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 3 of 5
CASE NO. 20-82358-CIV-CANNON/Brannon
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.
28 U.S.C. § 1446(b).
As indicated, the language of § 1446(b) hinges on “receipt by the defendant”—not on
service of process—and “receipt” denotes actual possession or acquisition. See, ¢.g., Receive,
Webster’s New Int’l Dictionary of the English Language, 2076 (2d ed. 1958) (defining “receive”
as “[t]o take, as something that is offered, given, committed, sent, paid or the like; to accept, as to
receive payment,” including “[t]o come into possession of, get acquire, or the like, from any source
outside of oneself”); Receipt, Black’s Law Dictionary, 1501 (3d ed. 1944) (defining “receipt” as
“Tt]he written acknowledgment of the receipt of money or a thing of value,” including an “act or
transaction of accepting or taking anything delivered”).
In line with this statutory language, the majority of district courts to have encountered this
question have adhered to the date a defendant actually receives the complaint—not the date on
which a statutory agent receives a copy of the complaint and summons. As these courts have
observed, ‘statutory agents are not true agents but are merely a medium for transmitting the
relevant papers.’ Meadows Springlake Condominium Association, Inc., v. Allstate Insurance
Company, No. 8:06-cv-1282, 2006 WL 2864313, at *3 (M.D. Fla. 2006) (quoting Hibernia Cmty.
Dev. Corp. v. U.S.E. Cmty. Servs. Grp., Inc., 166 F. Supp. 2d 511, 513 (E.D. La. 2001)); Id. (“A
clear majority of district courts addressing this issue have ruled that the time for removal is initiated
upon receipt by the defendant, or the defendant’s designated agent.” (internal quotation marks
omitted)); see also Sands Point Ocean Beach Resort & Condo. Assoc. v. QBE Ins. Corp., No. 07-
21329, 2007 WL 1805795, at *1 (S.D. Fla. 2007) (“The thirty-day period for removal here began
to run when QBE received the complaint and summons from the Florida Department of Financial
Services ....”); Hibernia Cmty. Dev. Corp. 166 F. Supp. 2d at 513 (E.D. La. 2001) (“[I]t now
appears to be settled law that the time for seeking removal begins to run only when the defendant
3Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 4 of 5
CASE NO. 20-82358-CIV-CANNON/Brannon
or someone who is serving as the defendant’s agent in fact receives the process.”). The Court
shares the same view expressed in these persuasive authorities and applies it here.
In this case, the preponderance of the evidence indicates that Defendant did not actually
receive a copy of the complaint until November 23, 2020 [ECF No. | {J 5-8]. This is supported
by the Declaration of Aurora Loaiza, Senior Compliance Administrator for Defendant’s parent
corporation (Centene Corporation) and Defendant’s designee to receive complaints and
summonses from the Florida CFO [ECF No. 11-1 §2]. Loaiza avers that, on November 23, 2020,
a colleague in Centene’s legal department notified her that he was contacted by outside counsel in
reference to service of process in an unrelated action [ECF NO. 11-1 §4]. That communication
prompted Loaiza to check the online portal for Florida’s Office of Insurance Regulation, and when
she did so, she discovered multiple complaints and summonses against Defendant, including those
for this case, despite never having received an email alert from the Florida CFO about the instant
complaint [ECF No. 11-1 §§5-6]. Defendant’s counsel also attaches screenshots of test emails
indicating that the email on file with the Florida CFO returned a message that the “server was
unavailable” despite 30 attempts to deliver [ECF No. 11, pp. 3-4; ECF No. 11-3].
Although Plaintiff suggests that more corroboration is required to verify Defendant’s
explanation [ECF No. 15, p. 2], Defendant has supplied sufficient evidence to establish that it did
not receive the complaint until November 23, 2020. Defendant therefore had until December 23,
2020, to file its notice of removal, and it complied with that obligation by filing its notice on
December 18, 2020. The removal of the case was timely.Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 5 of 5
CASE NO. 20-82358-CIV-CANNON/Brannon
Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Remand
[ECF No. 9] is DENIED.
DONE AND ORDERED in Fort Pierce, Florida this 10th day of February 2021.
AILEENM. CANNON
UNITED STATES DISTRICT JUDGE
ce: counsel of record
Preview
Filing # 122688924 E-Filed 03/08/2021 03:07:38 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JOSE RODRIGUEZ, CIRCUIT CIVIL DIVISION Plaintiff, CASE NO.: CACE-20-017538 (03) Vv. CELTIC INSURANCE COMPANY d/b/a AMBETTER FROM SUNSHINE HEALTH, Defendant. DEFENDANT’S NOTICE OF SUPPLEMENTAL AUTHORITY Defendant Celtic Insurance Company (“Celtic”) hereby gives notice of the following Court Orders as supplemental authority in support of Celtic’s Motion to Set Aside Clerk’s Default: 1. Order Deferring Ruling on Motion for Default Judgment and Motion to Set Aside Default dated December 29, 2021, in Melnik v. Celtic Insurance Co., Case No. COCE-20- 022679, attached as Exhibit 1. 2. Order Vacating December 10, 2020 Default and Denying Plaintiff's Verified Motion to Strike Defendant’s Pleading for Fraud on the Court and for Attorneys’ Fees and Costs dated January 6, 2021, in Melnik v. Celtic Insurance Co., Case No. COCE-20-022679, attached as Exhibit 2. 3. Order Denying Motion to Remand dated February 10, 2021, in Orthopaedic Care Specialists, PL. v. Celtic Insurance Co., Case No. 20-82358-CIV-Cannon, attached as Exhibit 3. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/08/2021 03:07:38 PM.****Respectfully submitted, Hogan Lovells US, LLP 600 Brickell Avenue Suite 2700 Miami, FL 33131 Telephone: (305) 459-6500 Facsimile: (305) 459-6550 Craig H. Smith, Esq. Florida Bar Number: 96598 Florida Bar Board Certified — Health Law craig.smith@hoganlovells.com James L. VanLandingham, Esq. Florida Bar Number: 106761 James. vanlandingham@hoganlovells.com Gladys.cata@hoganlovells.com (secondary) By:__/s/Craig H. Smith Craig H. Smith, Esq. Counsel for Celtic Insurance Company CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 8, 2021, a true and correct copy of the foregoing was served on all counsel of record via Florida’s e-Filing portal electronic filing system. /s/ Craig H. SmithEXHIBIT 1Filing #11 8825223 E-Filed 12/29/2020 12:59:12 PM IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. COCE20022679 DIVISION 49 JUDGE Nina W. Di Pietro Yevgeny Melink Plaintiff(s) / Petitioner(s) v. Celtic Insurance Company Defendant(s) / Respondent(s) / ORDER DEFERRING RULING ON MOTION FOR DEFAULT JUDGMENT AND MOTION TO SET ASIDE DEFAULT THIS CAUSE having come on to be considered on December 29, 2020, regarding Plaintiff's Motion for Default Judgment and Defendant's Motion to Set Aside Default, the Court having reviewed said Motions and the court file, having heard from both parties remotely via Zoom/teleconference, and being otherwise advised in the Premises, it is hereupon, 5. 6. ORDERED AND ADJUDGED that the Court finds as follows: . The Court defers ruling on Plaintiff's Motion for Default Judgment and Defendant's Motion to Set Aside Default. . The Court finds that Defendant has met the elements of acting with diligence and asserting meritorious defenses. . The Court defers ruling on the element of excusable neglect. . Plaintiff shall have until January 5, 2021 to provide case law via email to the Court (with Defendant's counsel cc'ed) as to whether Plaintiff is entitled to a full evidentiary hearing to rebut the assertions made in Defendant's Declaration of Aurora Loaiza as it relates to excusable neglect. If the Court finds that the case law supports Plaintiff's entitlement to a full evidentiary hearing, the Court will coordinate with the parties to schedule that hearing. If the Court finds that the case law does not support Plaintiff's entitlement to a full evidentiary hearing, the Court will issue a ruling on the evidence of record as of today's hearing.CaseNo: COCE20022679 Page 2 of 2 DONE and ORDERED in Chambers, at Broward County, Florida on 12-29-2020. cocued\:$o7o 1g -2F = MA COCE20022679 12-29-2020 12:59 PM Hon. Nina W. Di Pietro COUNTY JUDGE Electronically Signed by Nina W. Di Pietro Copies Furnished To: Craig H Smith , E-mail : gladys.cata@hoganlovells.com Craig H Smith , E-mail : craig.smith@hoganlovells.com James L Vanlandingham , E-mail : James. Vanlandingham@hoganlovells.com Maria T. Santi , E-mail : health@mellawyers.com Maria T. Santi , E-mail : msanti@mellawyers.comEXHIBIT 2Filing # 119185947 E-Filed 01/06/2021 06:15:06 PM IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. COCE20022679 DIVISION 49 JUDGE Nina W. Di Pietro Yevgeny Melink Plaintiff(s) / Petitioner(s) v. Celtic Insurance Company Defendant(s) / Respondent(s) / ORDER VACATING DECEMBER 10, 2020 DEFAULT AND DENYING PLAINTIFF’S VERIFIED MOTION TO STRIKE DEFENDANT’S PLEADING FOR FRAUD ON THE COURT AND FOR ATTORNEY’S FEES AND COSTS THIS CAUSE having come on to be considered on December 29, 2020, regarding Defendant’s Motion to Set Aside Clerk’s Default and Plaintiff's Verified Motion to Strike Defendant’s Pleading for Fraud on the Court and for Attorney's Fees and Costs, the Court having reviewed said Motions and the court file, having heard from both parties remotely via Zoom/teleconference, and being otherwise advised in the Premises, it is hereupon, = ORDERED AND ADJUDGED as follows: . The Court previously ruled on December 29, 2020 that Defendant had successfully met the elements of acting with diligence and asserting meritorious defenses. . The Court deferred ruling on the issue of excusable neglect, specifically to provide Plaintiff with an opportunity to provide case law establishing that Plaintiff (the non-moving party) had a right to a full evidentiary hearing to rebut the assertions made in Defendant's Declaration of Aurora Loaiza. . The Court reviewed Plaintiff's counsel’s January 5, 2021 email containing a cover letter with case law summary and 11 attached cases. . The Court additionally reviewed Defendant’s counsel’s January 5, 2021 email with its case law summary and five attached cases. . Based upon a review of all of the above, the Court finds that Plaintiff has not provided case law that supports entitlement for the non-moving party to an evidentiary hearing. . Rather, the Court finds instruction from one of the cases Plaintiff provided, Trupid v. Wallquist, 605 So.2d 1295 (Fla. 4 DCA 1992). Trupid involved, “...various affidavits of the parties and witnesses which present[ed] conflicting facts.” /d. at 1296. There, the appellate court upheld the trial court’s ruling, which was made solely on consideration ofCaseNo: COCE20022679 Page 2 of 2 competing affidavits. Notably, the Fourth District Court of Appeals affirmed the trial court's order, rather than remanding the matter back for an evidentiary hearing. /d. 7. After consideration of the Declaration of Aurora Loaiza and Plaintiff's Verified Motion to Strike Defendant's Pleading for Fraud on the Court and for Attorney’s Fees and Costs, the Court finds that Defendant has met the element of excusable neglect. 8. Therefore, the Court hereby Grants Defendant’s Motion to Set Aside Clerk’s Default, Denies Plaintiff's Verified Motion to Strike Defendant's Pleading for Fraud on the Court and for Attorney’s Fees and Costs, vacates the Order Granting Judicial Default entered on December 10, 2020, and provides Plaintiff with 10 days to file a Reply to Defendant's Answer and Affirmative Defenses. DONE and ORDERED in Chambers, at Broward County, Florida on 01-06-2021. COCE20022679 01-06-2021 2:51 PM Hon. Nina W. Di Pietro COUNTY JUDGE Electronically Signed by Nina W. Di Pietro Copies Furnished To: Craig H Smith , E-mail : gladys.cata@hoganlovells.com Craig H Smith , E-mail : craig.smith@hoganlovells.com James L Vanlandingham , E-mail : James. Vanlandingham@hoganlovells.com Maria T. Santi , E-mail : health@mellawyers.com Maria T. Santi , E-mail : msanti@mellawyers.comEXHIBIT 3Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 1 of5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA ‘WEST PALM BEACH DIVISION CASE NO. 20-82358-CIV-CANNON/Brannon ORTHOPAEDIC CARE SPECIALISTS, P.L., Plaintiff, v. CELTIC INSURANCE COMPANY, d/b/a Ambetter from Sunshine Health, Defendant. / ORDER DENYING PLAINTIFF’S MOTION TO REMAND THIS MATTER comes before the Court on Plaintiff's Motion to Remand [ECF No. 9], Defendant’s Response in Opposition [ECF No. 11], and Plaintiff's Reply in Support of Remand [ECF No. 15]. For the reasons set forth below, Plaintiff's Motion to Remand [ECF No. 9] is DENIED. Background On September 25, 2020, Plaintiff filed this case in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, seeking reimbursement for the emergency medicine services its professionals were alleged to have rendered to a member of the Celtic Insurance Company [ECF No. 1-2]. On October 1, 2020, Plaintiff served the complaint and summons upon the Chief Financial Officer (CFO) of the State of Florida pursuant to Fla. Stat. §§ 624.422 and 624.423, which authorize the Florida CFO to accept service of process on behalf of all insurers licensed to do business within the state [ECF No. 9, pp. 2-3]. On October 5, 2020, the CFO prepared its “Notice of Service of Process” indicating that a copy of the complaint was emailed toCase 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 2 of 5 CASE NO. 20-82358-CIV-CANNON/Brannon Defendant’s registered agent [ECF No. 9-1]. And on December 18, 2020, Defendant removed this case to federal court pursuant to 28 U.S.C. §§ 1332(a), 1441, 1446, and 1447 [ECF No. 1]. The parties do not dispute that diversity of citizenship exists or that the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332. Rather, Plaintiff argues that Defendant’s removal to this Court was untimely under 28 U.S.C. § 1446(b), because the 30-day time limit for removal began to run when the CFO of the State of Florida emailed the summons and complaint to Defendant (October 1, 2020) [ECF No. 9, pp. 2-3]. Defendant responds that the 30-day period did not commence until it actually received a copy of the summons and complaint, which it states took place on November 23, 2020—the date Defendant’s designee first learned that a lawsuit had been filed against Defendant [ECF No. 1 5-8]. According to Defendant, a faulty email address on file with the Florida CFO prevented it from discovering the complaint until November 23, 2020, making its removal on December 18, 2020, timely [ECF No. 11, pp. 3-4]. Discussion Plaintiff's motion to remand presents the following question: when service is effected on a statutory agent (here, Florida’s CFO) rather than on an agent appointed by Defendant, does the time to remove the action under 28 U.S.C. § 1446(b) commence when the Defendant actually receives a copy of the complaint (as Defendant says happened on November 23, 2020), or does it start when the Plaintiff provides the statutory agent with a copy of the complaint and summons (as Plaintiff says happened on October 1, 2020)? Based on the statutory text of 28 U.S.C. § 1446(b) and supporting authority, the Court agrees with Defendant that actual receipt by a defendant is required to start the 30-day removal clock. Section 1446(b) provides as follows: 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 2Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 3 of 5 CASE NO. 20-82358-CIV-CANNON/Brannon 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. 28 U.S.C. § 1446(b). As indicated, the language of § 1446(b) hinges on “receipt by the defendant”—not on service of process—and “receipt” denotes actual possession or acquisition. See, ¢.g., Receive, Webster’s New Int’l Dictionary of the English Language, 2076 (2d ed. 1958) (defining “receive” as “[t]o take, as something that is offered, given, committed, sent, paid or the like; to accept, as to receive payment,” including “[t]o come into possession of, get acquire, or the like, from any source outside of oneself”); Receipt, Black’s Law Dictionary, 1501 (3d ed. 1944) (defining “receipt” as “Tt]he written acknowledgment of the receipt of money or a thing of value,” including an “act or transaction of accepting or taking anything delivered”). In line with this statutory language, the majority of district courts to have encountered this question have adhered to the date a defendant actually receives the complaint—not the date on which a statutory agent receives a copy of the complaint and summons. As these courts have observed, ‘statutory agents are not true agents but are merely a medium for transmitting the relevant papers.’ Meadows Springlake Condominium Association, Inc., v. Allstate Insurance Company, No. 8:06-cv-1282, 2006 WL 2864313, at *3 (M.D. Fla. 2006) (quoting Hibernia Cmty. Dev. Corp. v. U.S.E. Cmty. Servs. Grp., Inc., 166 F. Supp. 2d 511, 513 (E.D. La. 2001)); Id. (“A clear majority of district courts addressing this issue have ruled that the time for removal is initiated upon receipt by the defendant, or the defendant’s designated agent.” (internal quotation marks omitted)); see also Sands Point Ocean Beach Resort & Condo. Assoc. v. QBE Ins. Corp., No. 07- 21329, 2007 WL 1805795, at *1 (S.D. Fla. 2007) (“The thirty-day period for removal here began to run when QBE received the complaint and summons from the Florida Department of Financial Services ....”); Hibernia Cmty. Dev. Corp. 166 F. Supp. 2d at 513 (E.D. La. 2001) (“[I]t now appears to be settled law that the time for seeking removal begins to run only when the defendant 3Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 4 of 5 CASE NO. 20-82358-CIV-CANNON/Brannon or someone who is serving as the defendant’s agent in fact receives the process.”). The Court shares the same view expressed in these persuasive authorities and applies it here. In this case, the preponderance of the evidence indicates that Defendant did not actually receive a copy of the complaint until November 23, 2020 [ECF No. | {J 5-8]. This is supported by the Declaration of Aurora Loaiza, Senior Compliance Administrator for Defendant’s parent corporation (Centene Corporation) and Defendant’s designee to receive complaints and summonses from the Florida CFO [ECF No. 11-1 §2]. Loaiza avers that, on November 23, 2020, a colleague in Centene’s legal department notified her that he was contacted by outside counsel in reference to service of process in an unrelated action [ECF NO. 11-1 §4]. That communication prompted Loaiza to check the online portal for Florida’s Office of Insurance Regulation, and when she did so, she discovered multiple complaints and summonses against Defendant, including those for this case, despite never having received an email alert from the Florida CFO about the instant complaint [ECF No. 11-1 §§5-6]. Defendant’s counsel also attaches screenshots of test emails indicating that the email on file with the Florida CFO returned a message that the “server was unavailable” despite 30 attempts to deliver [ECF No. 11, pp. 3-4; ECF No. 11-3]. Although Plaintiff suggests that more corroboration is required to verify Defendant’s explanation [ECF No. 15, p. 2], Defendant has supplied sufficient evidence to establish that it did not receive the complaint until November 23, 2020. Defendant therefore had until December 23, 2020, to file its notice of removal, and it complied with that obligation by filing its notice on December 18, 2020. The removal of the case was timely.Case 9:20-cv-82358-AMC Document 16 Entered on FLSD Docket 02/10/2021 Page 5 of 5 CASE NO. 20-82358-CIV-CANNON/Brannon Conclusion Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Remand [ECF No. 9] is DENIED. DONE AND ORDERED in Fort Pierce, Florida this 10th day of February 2021. AILEENM. CANNON UNITED STATES DISTRICT JUDGE ce: counsel of record