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ESTATE OF BARATT v. PHOENIX MUT. LIFE INS. CO.

March 16, 1992

ESTATE OF RUTH P. BARATT, Plaintiff,
v.
PHOENIX MUTUAL LIFE INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: MICHAEL A. TELESCA

 INTRODUCTION

 This is an action for breach of contract, fraud, and bad faith refusal to pay benefits allegedly due under an insurance contract. Defendant filed a notice of removal in this Court on January 30, 1992, pursuant to 28 U.S.C. §§ 1332 and 1441(a). Plaintiff now moves to remand this action to state court on the grounds that removal was untimely.

 BACKGROUND

 On December 9, 1991, Bruce Anglin, a process server hired by the plaintiff, served a summons with notice on Susan J. Simmons who was employed by the defendant, Phoenix Mutual Life Insurance Company, at its office on Elmwood Avenue in the Town of Brighton. In his supplemental affidavit of service, sworn to on January 28, 1992, the process server stated that

 upon entering the offices of Phoenix Mutual Life Insurance Company, December 9, 1991, at approximately 2:55 p.m., deponent asked the receptionist to meet with an officer of said corporation. At 2:56 p.m. [Susan] Simmons appeared and stated that she was the office manager and highest ranking agent of defendant, who Simmons stated was physically headquartered outside of the State of New York. Deponent asked Simmons if she was an authorized agent for service and she responded in the affirmative and recalled her acceptance of legal service previously on unrelated litigation. At 2:57 p.m. Simmons was served the within summons and complaint.

 (Affidavit of Atty. Baratt, sworn to on February 10, 1992, Exhibit A).

 On January 23, 1992, plaintiff served a copy of the summons with notice on the New York State Insurance Department. Defendant received the summons with notice from the Insurance Department on or about January 27, 1992. On January 15, 1992, Phoenix had received a complaint in this action in response to its demand for the same. On January 30, 1992, defendant filed a notice of removal in this Court. (Defendant's Notice of Removal, P2).

 In conjunction with its opposition to this motion, defendant has filed the affidavit of Susan J. Simmons, the individual upon whom process was served. Ms. Simmons states that since July of 1991 she has been employed by the defendant on a part time basis as a receptionist. According to her affidavit, her duties include greeting people who come to the office, typing, opening and sorting mail, answering telephones, and reviewing insurance applications to determine whether they are complete. (Affidavit of S. Simmons, sworn to on February 24, 1992, P1) (hereinafter Simmons Aff., P ). She states that on December 9, 1991,

 a man came to the Phoenix Mutual offices shortly before 3:00 p.m. The man asked if this was Phoenix Mutual, and I answered yes. He then said, 'I have a summons.' My colleague, Marty Cocca, then came out to my desk. I, or Marty Cocca, asked whether we had to sign for it. He said, 'No, all you have to do is take it.' At that point, he asked my name and left a document with me.

 (Simmons Aff., PP4 - 5). Ms. Simmons denies that she ever stated that she was an authorized agent for service, explaining that she does not know what that term means. (Simmons Aff., P8).

 Ms. Simmons' affidavit is supported by the sworn statement of Martha Cocca, secretary to a Phoenix Mutual Life agent. She states in her affidavit that she was present for most of the conversation and confirms that the process server never asked if either of them were agents authorized to accept service. (Affidavit of Martha A. Cocca, sworn to on February 24, 1992, PP5 - 8). In response to these affidavits, plaintiff submits an attorney's affidavit and a copy of a supplemental affidavit of service signed by the process server, Bruce Anglin, on January 28, 1992 -- more than a month and a half after he served the summons and notice on Susan Simmons. To date, plaintiff has not submitted an original signed affidavit of Bruce Anglin supporting his statements in the copy of the supplemental affidavit of service.

 DISCUSSION

 Removal of actions to federal court is governed by 28 U.S.C. § 1446(b), ...


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