Packard v. Temenos Advisory, Inc.

159 F. Supp. 3d 1344, 2016 U.S. Dist. LEXIS 10919, 2016 WL 397638
CourtDistrict Court, S.D. Georgia
DecidedJanuary 29, 2016
DocketCV 215-087
StatusPublished
Cited by5 cases

This text of 159 F. Supp. 3d 1344 (Packard v. Temenos Advisory, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Packard v. Temenos Advisory, Inc., 159 F. Supp. 3d 1344, 2016 U.S. Dist. LEXIS 10919, 2016 WL 397638 (S.D. Ga. 2016).

Opinion

ORDER

LISA GODBEY WOOD, CHIEF JUDGE, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF GEORGIA

This matter comes before the Court on two fully briefed motions: a Motion to Dismiss (dkt. no. 5) filed by Defendant George L. Taylor (“Taylor”) and a Motion to Remand (dkt. no. 25) by Plaintiff Charles Packard (“Plaintiff’). Upon due consideration, Taylor’s Motion to Dismiss (dkt. no. 5) is DISMISSED in part and DENIED in part: the Motion is DISMISSED as moot as it relates to the sufficiency of service of process, and it is DENIED as to its request for dismissal on personal-jurisdiction grounds. Additionally, Plaintiffs Motion to Remand (dkt. no. 25) is DENIED.

FACTUAL BACKGROUND

Plaintiff is a resident of Glynn County, Georgia. Dkt. No. 1, pp. 7-10 (“Compl.”), ¶ 1. Defendant Temenos Advisory, Inc. (“Temenos”) is a Connecticut corporation that is licensed to do business in the State of Georgia, with Taylor listed as its registered agent for service of process at an address in Glynn County, Georgia. See id. at ¶¶ 2, 4. Although Taylor resides in Connecticut, Temenos and Taylor (collectively, “Defendants”) have maintained a principal office at the Glynn County, Georgia, address since at least July 2.010. See id. at ¶¶ 3-5.

According to Plaintiff, Defendants entered into a verbal employment contract with him in July 2010. Id. at ¶ 5. Pursuant to the alleged contract, Plaintiff worked for Defendants as a financial advisor, and Defendants compensated him with allowances for his expenses, club memberships, health insurance, and a percentage of the revenue from clients that he obtained for them. Id. at ¶¶ 6-7. Specifically, Plaintiff states, that the contract obligated Defendants to pay him the following: “100% of Temenos’[s] finder’s fees for all amounts generated by Plaintiff related to the Mu-tualink Round B offering”; “40% of Defendants’ fees from all client accounts he generated for Defendants’ business”; and “50% of all commissions paid to Defendants for Life Insurance Policies and/or Annuities sourced by Plaintiff.” See id. at ¶¶ 8,11-12.

Plaintiff asserts that Defendants have nevertheless failed to pay him $18,175 in finder’s fees, $40,000 of the fees on client accounts, and the commissions for the sales of multiple life-insurance policies and two annuities. See id. at ¶¶ 8, 11, 13. According to Plaintiff, “Defendants have recognized their obligation to pay Plaintiff these monies but have refused to do so,” id. at ¶ 9, “instead unilaterally claiming to have changed the terms of the contract they entered into with Plaintiff,” id. at ¶ 15.

[1350]*1350PROCEDURAL BACKGROUND

On May 1, 2015, Plaintiff filed suit against Defendants in the State Court of Glynn County. See generally id. In the Complaint, Plaintiff claims that Defendants breached the alleged verbal employment contract, breached their duties of good faith and fair dealing, and acted willfully and maliciously and without justification in doing so. See id. at ¶¶ 15-17. Plaintiff seeks damages from Defendants in the amount of $108,175, plus commissions for the life-insurance policies and annuities, as well as punitive damages, attorney’s fees, costs, and expenses of this action. Id. at ¶¶ a-d.

Plaintiff attempted to effect service of the Complaint and Summons upon Teme-nos through its registered agent, Taylor, at the Temenos office in Georgia; however, a Return of Service dated May 14, 2015, shows that Temenos was not served, because Taylor could not be found within the State of Georgia after a diligent search. Dkt. No. 5, Ex. B. Plaintiff attempted to serve Taylor on June 11, 2015, by leaving copies of the Complaint and Summons at his residence in Connecticut. Id. at Ex. C. However, according to Taylor, he has both a home and an office on his property, and Plaintiff left the requisite materials in the crack of the office door. Id. at Ex. A (“Taylor AS.”), ¶¶ 5-6.

On July 13, 2015, Taylor filed a Notice of Removal of the state-court action to this Court, on the basis of diversity jurisdiction. Dkt. No. 1, pp. 1-4 (“Notice of Removal”), pt. B. Along with the Notice of Removal, Taylor filed the Motion to Dismiss that is now pending before the Court. Dkt. No. 5. As discussed more fully below, Taylor challenges Plaintiffs service of process and this Court’s jurisdiction over him. Id.

The next day- — July 14, 2015 — Plaintiff sought to serve Temenos through Georgia’s Secretary of State, and Temenos received such service on July 20, 2015. Dkt. No. 25, Ex. A. Temenos then filed an Answer in this Court on August 4, 2015. Dkt. No. 12. On August 8, 2015, Plaintiff re-served Taylor by delivering the Complaint and Summons to him personally at his home in Connecticut. Dkt. No. 15. Plaintiff then filed the instant Motion to Remand on September 10, 2015, seeking to have this case returned to the State Court of Glynn County on the basis of improper removal. Dkt. No. 25.

DISCUSSION

Although Taylor’s Motion to Dismiss (dkt. no. 5) predates the filing of Plaintiffs Motion to Remand (dkt. no. 25), the Court’s ruling on the issue of remand will dictate whether the Court should decide Taylor’s pending dispositive Motion or leave it for resolution in state court. The Court thus addresses Plaintiffs Motion to Remand before turning to Taylor’s Motion to Dismiss.

I. Plaintiffs Motion to Remand (Dkt. No. 25)

Plaintiff moves to remand this case to state court on the basis that Temenos never joined in or consented to Taylor’s Notice of Removal, as required by statute. Dkt. No. 25 (citing 28 U.S.C. § 1446(b)). Defendants oppose Plaintiffs Motion on the grounds that it is untimely and lacks merit. Dkt. No. 28, pp. 2-7. Specifically, Defendants argue that Taylor’s removal of the state action to this Court was proper for three alternative reasons: (1) the statutory consent rule on which Plaintiff relies is inapplicable in diversity actions; (2) even if the rule does apply, it did not require that the later-served Temenos consent to removal after the fact; and (3) Temenos effectively consented to removal by filing an Answer in this Court. Id. at pp. 3-7.

[1351]*1351A. Timeliness of plaintiffs Motion

Pursuant to 28 U.S.C. § 1447 (“Section 1447”), a party seeking to remand a case based on any defect other than a lack of subject-matter jurisdiction must file a motion within thirty days after the filing of the removal notice.

In the case at bar, Taylor filed a Notice of Removal on July 13, 2015. See Notice of Removal. Accordingly, Section 1447 required that Plaintiff file any motion to remand on the basis of a procedural infirmity, such as a lack of consent, within the subsequent thirty-day period ending on August 12, 2015. Because Plaintiff waited to do so until September 10, 2015-fifty-nine days after the filing of the Notice of Removal-Plaintiffs Motion is untimely and must be denied.

Plaintiff maintains, however, that the statutory thirty-day deadline should not apply in cases involving a defendant served after removal, and that the rule should instead provide “that later served defendants must consent to removal once served and that once the time for them to do so has expired, [the] [p]laintiff may move to remand.” Dkt. No. 30, p. 3.

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Cite This Page — Counsel Stack

Bluebook (online)
159 F. Supp. 3d 1344, 2016 U.S. Dist. LEXIS 10919, 2016 WL 397638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/packard-v-temenos-advisory-inc-gasd-2016.