United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REMAND (CORRECTED)
F. DENNIS SAYLOR, IV, District Judge.
This is an action for declaratory judgment, in which plaintiff Addison Automatics, Inc. seeks a declaration that defendant Netherlands Insurance Company has a duty to defend and indemnify defendant Precision Electronic Glass Company in an action pending in the United States District Court for the Northern District of Illinois.
Plaintiff originally brought this action in Suffolk Superior Court. On September 25, 2014, defendants removed the case to this Court. Plaintiff filed a motion to remand the case to state court on October 27, 2014, contending that defendants did not timely remove this action and the action is not a class action. Plaintiff also requested fees and costs.
For the following reasons, the motion to remand will be granted.
A. The Parties
Addison Automatics is an Illinois corporation. (Compl. ¶ 3). Netherlands Insurance Company is a New Hampshire corporation with a principal place of business in Boston, Massachusetts. ( Id. ¶ 4). Excelsior Insurance Company is a New Hampshire corporation with a principal place of business in Boston, Massachusetts. ( Id. ¶ 5). Precision Electronic Glass, Inc. is a New Jersey corporation. ( Id. ¶ 6). Philip Rossi, who is president of Precision, is a citizen of New Jersey. ( Id. ¶ 7).
B. The Underlying Action
On August 13, 2010, Addison brought suit against Precision in Illinois state court, seeking relief on behalf of itself and a class of similarly situated plaintiffs. ( Id. ¶¶ 10-11). In that action, Addison alleged that Precision sent unsolicited junk faxes to Addison and hundreds of others, and asserted claims for violation of the Telephone Consumer Protection Act, commonlaw conversion, and violation of the Illinois Consumer Fraud Act. ( Id. ¶ 12). Netherlands was asked to defend Precision in that action, and it refused. ( Id. ¶¶ 42-43).
That case was removed to the United States District Court for the Northern District of Illinois. On December 14, 2012, the court approved a classwide settlement, and final judgment in the amount of $15, 875, 500 entered against Precision. (Mot. Remand Ex. 1 ¶ M). Precision was ordered to pay $85, 000 for the benefit of the settlement class, and the remaining portion of the judgment was to "be satisfied only through the proceeds of [Precision's] insurance policies." ( Id. ).
C. Present Action
On November 7, 2011, plaintiff filed the complaint in this action in the Suffolk Superior Court. (State Court R. at 4). The complaint alleges that Netherlands issued annual renewal comprehensive general liability and umbrella insurance policies to Precision. (Compl. ¶ 14). Those policies covered periods between March 12, 2005, and March 12, 2008. ( Id. ). Plaintiff contends that those policies offer coverage for damages resulting from property damage and personal and advertising injury. (Compl. ¶ 16). As a result, plaintiff contends that those policies cover damages in the underlying action for damage caused by unsolicited faxes sent by Precision. ( Id. ¶ 37). The complaint alleges that Netherlands has refused to defend and indemnify Precision in the underlying action. ( Id. ¶ 42-43).
On December 23, 2011, while the case was still in state court, Netherlands and Excelsior moved to dismiss the action on grounds of lack of standing and forum non conveniens. (Mot. Remand Ex. 2). On June 28, 2012, the Superior Court denied that motion. ( Id. Ex. 3). On December 7, 2012, Netherlands and Excelsior filed a motion for judgment on the pleadings. ( Id. Ex. 4). Precision responded and cross-moved for judgment on the pleadings. ( Id. Ex. 5). On July 23, 2013, the Superior Court issued an order in which it construed those motions as motions for summary judgment and denied them both. ( Id. Ex. 7).
On April 30, 2014, defendants filed a motion to dismiss pursuant to the decision of the Massachusetts Appeals Court in Ari Weitzner MD PC v. Cynosure, Inc., 85 Mass.App.Ct. 77 (2014). ( Id. Ex. 8). Defendants relied on the recent Seventh Circuit decision in Addison Automatics, Inc. v. Hartford Cas. Ins. Co., 731 F.3d 740 (7th Cir. 2013) as evidence that Addison was serving as a class representative. (Mot. Remand Ex. 8 at 7). On August 26, 2014, the Superior Court denied that motion with the following order: "After review and hearing, this motion is ...