Colorado Bankers Life Insurance Company v. AT Denmark Investments, ApS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:20-CV-409-D

COLORADO BANKERS LIFE )

INSURANCE COMPANY, )

Plaintiff, ;

v. ORDER

AT DENMARK INVESTMENTS, APS,

Defendant. ;

On July 24, 2020, AT Denmark Investments, ApS (“AT Denmark” or “defendant”) removed

this case from Wake County Superior Court [D.E. 1] and filed exhibits in support [D.E. 1-1, 1-2, 1-3,

1-4]. On August 20, 2020, Colorado Bankers Life Insurance Company (“CBL” or “plaintiff”) moved

- toremand and for attorneys’ fees [D.E. 20], and filed exhibits [D.E. 20-1, 20-2] and a memorandum

in support [D.E. 21]. On September 10, 2020, AT Denmark responded in opposition [D.E. 23], and

filed exhibits in support [D.E. 23-1, 23-2]. On September 24, 2020, CBL replied [D.E. 24]. On

October 29, 2020, AT Denmark filed a sur-reply [D.E. 30]. As explained below, the court grants

CBL’s motion to remand and for attorneys’ fees, denies AT Denmark’s motion to dismiss under

Rules 12(b)(2), (4), and (5), and dismisses as moot CBL’s motion to consolidate.

I.

CBL is a North Carolina domestic insurer. See [D.E. 21] 1. AT Denmark is a foreign

corporation headquartered in Denmark. See [D.E. 23] 1. On October 31, 2017, AT Denmark and

the original lender entered into a loan agreement whereby the original lender extended to AT

Denmark as borrower a credit facility in the amount of $8,642,583.66. See [D.E. 19-1]; [D.E. 21]

1-2; [D.E. 23] 2. Through a series of assignments, CBL became both lender and. agent on the loan

agreement. See [D.E. 21] 2.

Section 10.12 of the loan agreement is titled “GOVERNING LAW; JURISDICTION; ETc.” [D.E.

19-1] 5. Section 10.12(d) provides: “EACHPARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF

PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.11. NOTHING IN THIS AGREEMENT

WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER

PERMITTED BY APPLICABLE LAW.” Id.; see [D.E. 21] 2. Section 10.11, titled “NOTICES,” states in

relevant part that all notices “shall be deemed to have been validly served, given, or delivered...

one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid . . .

which shall be addressed to the party to be notified and sent to the address . . . set forth below[.]”

[D.E. 19-1] 4; see [D.E. 21] 2. Section 10.11 listed AT Denmark’s address as

AT Denmark Investments, ApS

2222 Sedwick Rd., Durham, NC 27713

Attn: Chairman

Email: gel@eliequity.com

[D.E. 19-1] 4; see [D.E. 21] 2.

On June 5, 2020, following a payment dispute, CBL filed a complaint against AT Denmark

in Wake County Superior Court. See [D.E. 1-1]; [D.E. 21] 2; [D.E. 23] 2. On June 24, 2020, CBL

filed an affidavit of service attesting that CBL deposited “the Summons and Complaint .. . with

Federal Express Corporation (FedEx), a reputable overnight courier with all charges prepaid, in

Raleigh, North Carolina, for overnight delivery, proof of signature required, to Defendant AT

. Denmark Investments, ApS, Attn: Chairman.” [D.E. 1-2] 2. CBL’s affidavit of service also stated

that “[t]he Summons and Complaint was received by Defendant on June 12, 2020, at 2222 Sedwick

Road, Durham, North Carolina 27713.” Id. CBL attached as an exhibit to its affidavit of service the

FedEx receipt confirming delivery. The receipt states that FedEx delivered the summons and

complaint to AT Denmark on June 12, 2020, at 8:46 a.m., that the package was “[s]igned for by:

R. Wicker,” and the receipt displays an image of the signature that reads “C. 19.” Id. at 5.

Rene Wicker (“Wicker”), the “R. Wicker’ to whom the FedEx receipt refers, is an

administrative assistant with Global Growth, Inc., located at 2222 Sedwick Rd., Durham, North

Carolina 27713. See [D.E. 23-1] 2. Wicker is not an employee, agent, officer, or director of AT

Denmark. See id.; [D.E. 23-2] 2. Wicker has “no recollection of the FedEx package.” [D.E. 23-1]

3. Wicker also claims that she did not provide the package containing the complaint and summons

to Greg Lindberg (“Lindberg”), the “ultimate owner of AT Denmark.” [D.E. 23-2] 2; see [D.E. 23-1]

3. The signature “C. 19” may belong to the FedEx employee who delivered the package because

some FedEx delivery personnel have adopted the practice of signing the names of persons who

receive packages to decrease in-person contact during the COVID-19 pandemic. See [D.E. 23-1]

2-3; [D.E. 23] 3, 5.

On July 16, 2020, CBL moved for entry of default. See [D.E. 7-3] 2. That same day, the

Assistant Clerk of Superior Court for Wake County entered default because AT Denmark “failed to

answer or otherwise move in response” to CBL’s complaint. Id. On July 22, 2020, AT Denmark

moved to set aside entry of default. See [D.E. 7-2]. Two days later, AT Denmark removed the

action to this court. See [D.E. 1].

I.

“Except as otherwise expressly provided by Act of Congress, any civil action brought in a

State court of which the [federal] district courts . . . have original jurisdiction, may be removed by

the defendant or the defendants, to the district court of the United States for the district and division

embracing the place where such action is pending.” 28 U.S.C. § 1441(a). To remove a civil action

from state to federal court, a defendant must file a notice of removal “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... .” 28 U.S.C. § 1446(b). “The

burden of establishing federal jurisdiction is placed upon the party seeking removal.” Mulcahey v.

Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994); see Flores v. Ethicon, Inc., 563

F, App’x 266, 268 (4th Cir. 2014) (unpublished).

“Removal statutes ... must be strictly construed, inasmuch as the removal of cases from state

to federal court raises significant federalism concerns.” Barbour v. Int’] Union, 640 F.3d 599, 605

(4th Cir. 2011) (en banc), abrogated on other grounds by 28 U.S.C. 1446(b)(2)(B); see Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Healy v. Ratta, 292 U.S. 263, 270 (1934).

“Doubts about the propriety of removal should be resolved in favor of remanding the case to state

court.” Elliott v. Am. States Ins. Co., 883 F.3d 384, 390 (4th Cir. 2018); see Common Cause v.

Lewis, 956 F.3d 246, 252 (4th Cir. 2020); Palisades Collections LLC v. Shorts, 552 F.3d 327,

333-34 (4th Cir. 2008); Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir.

2005); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815—16 (4th Cir. 2004) (en banc); Mason v. Int’]

Bus. Machs., Inc., 543 F. Supp. 444, 446 n.3 (M.D.N.C. 1982). Where notice is untimely under

section 1446, a defendant forfeits its right to remove a state court civil action to federal court, and

the case should be remanded to state court. See Barbour, 640 F.3d at 611 (“If you do not seek

removal within the thirty-day window, you have forfeited your right to remove.”); Northrup

Grumman Tech. Servs., Inc. v. Dyncorp Int’1 LLC, No. 1:16cv534(JCC/AIDD), 2016 WL 3144330,

at *4 (E.D. Va. June 6, 2016) (unpublished), aff'd, 865 F.3d 181 (4th Cir. 2017); Parker v. Johnny

Tart Enters., Inc., 104 F. Supp. 2d 581, 585 (M.D.N.C. 1999).

CBL contends that the court should remand this case to Wake County Superior Court because

CBL validly served AT Denmark on June 12, 2020, and AT Denmark waited 42 days to remove the

action to this court. See [D.E. 21] 4-8. In support, CBL asserts that its service of process was valid

under both Rule 4 of the North Carolina Rules of Civil Procedure and under the terms of the parties’

loan agreement. See id. Thus, because AT Denmark failed to remove the action “within the thirty-

day window, [AT Denmark] forfeited [its] right to remove.” Barbour, 640 F.3d at 611.

AT Denmark responds that remand is inappropriate because its notice ofremoval was timely.

See [D.E. 23] 3-7. In support, AT Denmark argues that CBL never validly served process under

North Carolina law or under the Hague Convention. See id.; [D.E. 30]. Accordingly, AT Denmark

contends that it timely removed the action.

A.

CBL contends that service of process is valid and complete under Rule 4 of the North

Carolina Rules of Civil Procedure. See [D.E. 21] 7. The parties’ arguments require this court to

apply North Carolina law. Accordingly, this court must predict how the Supreme Court of North

Carolina would rule on any disputed state law issues. See Twin City Fire Ins. Co. v. Ben

Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must

look first to opinions of the Supreme Court of North Carolina. See id.; Parkway 1046, LLC v. U.S.

Home Corp., 961 F.3d 301, 306 (4th Cir. 2020); Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir.

2016). there are no governing opinions from the Supreme Court of North Carolina, this court may

consider the opinions of the North Carolina Court of Appeals, treatises, and “the practices of other

states.” Twin City Fire Ins. Co., 433 F.3d at 369 (quotation and citation omitted). In predicting how

the highest court of a state would address an issue, this court must “follow the decision of an

intermediate state appellate court unless there is persuasive data that the highest court would decide

differently.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (quotation

omitted); see Hicks v. Feiock, 485 U.S. 624, 630 & n.3 (1988). Moreover, in predicting how the

highest court of a state would address an issue, this court “should not create or expand a [s]tate’s

public policy.” Time Warner Ent.-Advance/Newhouse P’ ship v. Carteret-Craven Elec. Membership

Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); see Day &

Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam); Wade v. Danek Med.., Inc., 182

F.3d 281, 286 (4th Cir. 1999).

Under Rule 4 of the North Carolina Rules of Civil Procedure, service of process may be

made upon a domestic or foreign corporation “[b]y depositing with a designated delivery service .

. copy of the summons and complaint, addressed to the officer, director, or agent to be served .

. . delivering to the addressee, and obtaining a delivery receipt.” N.C. Gen. Stat. § 1A-1, Rule

4(j)(6)(d). “A showing on the face of the record of compliance with the statute providing for service

of process raises a rebuttable presumption of valid service.” Lewis Clarke Assocs. v. Tobler, 32

N.C. App. 435, 438, 232 S.E.2d 458, 459 (1977), superseded on other grounds by N.C. Gen. Stat.

§ 1A-1, Rule 4(j)(1); see Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996). A party

may prove compliance with Rule 4(j)(6)(d) by filing an affidavit asserting that “a copy of the

summons and complaint was deposited with a designated delivery service . . . delivery receipt

requested,” that the package was received “as evidenced by the attached delivery receipt or other

evidence satisfactory to the court of delivery to the addressee,” and that “the delivery receipt or other

evidence of delivery is attached” to the affidavit. N.C. Gen. Stat. § 1-75.10(a)(5); see Washington

v. Cline, 233 N.C. App. 412, 420-23, 761 S.E.2d 650, 655-58 (2014). The presumption created by

this showing “can be rebutted by the affidavits of more than one person showing unequivocally that

proper service was not made upon the person of the defendant.” Grimsley, 342 N.C. at 545, 467

S.E.2d at 94; see Guthrie v. Ray, 293 N.C. 67, 71, 235 S.E.2d 146, 149 (1977); Dougherty Equip.

Co. v. M.C. Precast Concrete, Inc., 212 N.C. App. 509, 514, m1 S.E.2d 505, 508 (2011); Taylor v.

Brinkman, 108 N.C. App. 767, 771, 425 S.E.2d 429, 432 (1993). However, affidavits that merely

contest that the person who received service was not an employee, agent, or officer of the defendant

without asserting that the defendant “did not receive the summons, or did not receive notice of the

suit,” are insufficient to rebut the presumption. Washington, 233 N.C. App. at 422, 761 S.E.2d at

657 (emphasis omitted); see Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 493-94, 586 S.E.2d

791, 797-98 (2003); Fender v. Deaton, 130 N.C. App. 657, 663, 503 S.E.2d 707, 710-11 (1998).

CBL argues that it validly served process according to Rule 4. In support, CBL notes that

it “deposit[ed] with a designated delivery service . . . a copy of the summons and complaint,

addressed to the [AT Denmark’s Chairman,]. . . deliver[ed the summons and complaint] to the

addressee, and obtain[ed] a delivery receipt.” N.C. Gen. Stat. § 1A-1, Rule 4()(6)(d); see [D.E. 1-2].

On June 24, 2020, CBL filed an affidavit asserting that CBL deposited the summons and complaint

with FedEx, delivery receipt requested, asserting that on June 12, 2020, AT Denmark received the

summons and complaint at 2222 Sedwick Road in Durham, North Carolina as evidenced by the

FedEx delivery receipt, and attaching a copy of the delivery receipt to the affidavit. See [D.E. 1-2].

Thus, CBL created a rebuttable presumption of service by complying with Rule 4 and N.C. Gen.

Stat. § 1-75.10(a)(S). Washington, 233 N.C. App. at 420~23, 761 S.E.2d at 655—58; see Grimsley,

342 N.C. at 545, 467 S.E.2d at 94; Lewis Clarke Assocs., 32 N.C. App. at 438, 232 S.E.2d at 459,!

To rebut this presumption, AT Denmark filed affidavits by Wicker and Lindberg. See [D.E.

23] 4-6; [D.E. 23-1]; [D.E. 23-2]. In relevant part, Wicker’s affidavit states that Wicker is “not an

agent of AT Denmark,” has “no recollection of the FedEx package,” and that the “signature on the

FedEx delivery receipt ... does not belong” to Wicker. [D.E. 23-1] 2-3. Lindberg’s affidavit states

that Wicker “holds no position with AT Denmark,” and she is not “an authorized agent, officer, or

director of AT Denmark.” [D.E. 23-2] 2. Although the affidavits assert that Wicker is not an agent

of AT Denmark, they do not unequivocally demonstrate that Wicker and AT Denmark did not

receive the package at 2222 Sedwick Road on June 12, 2020. Cf. [D.E. 23-1] (stating only that

Wicker does not recall the package and that the signature on the receipt is the FedEx driver’s due

to COVID-19 protocol). Additionally, Lindberg’s declaration fails to assert that he and AT Denmark

did not receive the summons and did not receive notice of the suit. See [D.E. 23-2]. As such, AT

Denmark’ s affidavits are insufficient to rebut the presumption that CBL validly served AT Denmark.

1 AT Denmark argues that the delivery receipt does not give rise to a rebuttable presumption

of service because the FedEx driver likely signed the signature block for Wicker. See [D.E. 23] 5.

In support, AT Denmark cites cases construing Pennsylvania state law and federal law regarding

contempt. See id. The court rejects AT Denmark’s reliance on these cases. Under North Carolina

law, a rebuttable presumption is created by compliance with the plain language of the statute which

only requires a delivery receipt or other proof of delivery to the addressee satisfactory to the court,

not a signature on the delivery receipt. See N.C. Gen. Stat. § 1-75.10(5); Washington, 233 N.C.

App. at 420—23, 761 S.E.2d at 655-58.

- See Washington, 233 N.C. App. at 421-22, 761 S.E.2d at 656-57; Fender, 130 N.C. App. at 663,

503 S.E.2d at 710-11; see also Grimsley, 342 N.C. at 545, 467 S.E.2d at 94; Guthrie, 293 N.C. at

71,235 S.E.2d at 149; Dougherty Equip. Co., 212 N.C. App. at 514, 711 S.E.2d at 508; Taylor, 108

N.C. App. at 771, 425 S.E.2d at 432. Accordingly, CBL validly served AT Denmark under Rule 4.

Alternatively, CBL validly served AT Denmark according to the method the parties agreed

to in their loan agreement. See [D.E. 21] 4-8. Under North Carolina law, a plaintiff also may serve

process by procedures outside of Rule 4. North Carolina courts long have held that a defendant “may

consent to the jurisdiction of the court without exacting performance of the usual legal formalities

as to service of process.” Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953). The

legal formalities of service of process are a “personal privilege” which the defendant is free to

relinquish. Id., 78 S.E.2d at 337; see Surratt v. Surratt, 263 N.C. 466, 469, 139 S.E.2d 720, 722

(1965); Springer v. Shavender, 118 N.C. 25, 31-32, 23 S.E. 976, 979 (1896); Rossi v. Spoloric, 244

N.C. App. 648, 655, 781 S.E.2d 648, 653-54 (2016); Montgomery v. Montgomery, 110 N.C. App.

234, 237-38, 429 S.E.2d 438, 440 (1993). North Carolina permits parties to waive by contractual

agreement the formalities associated with courts’ exercise of personal jurisdiction. See Surratt, 263

N.C. at 469, 139 S.E.2d at 722; Brinson, 238 N.C. at 509, 78 S.E.2d at 337; Speedway Motorsports

Ltd. v. Bronwen Energy Trading, Ltd., 209 N.C. App. 474, 481-82, 707 S.E.2d 385, 390 (2011)

(discussing contractual consent to personal jurisdiction through a forum selection clause);

Montgomery, 110 N.C. App. at 238, 429 S.E.2d at 440-41 (same). In this regard, North Carolina

law mirrors federal law and the law of many states. See Burger King Corp. v. Rudzewicz, 471 U.S.

462, 472 n.14 (1985); Natl Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16 (1964);

Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 281 n.11 (4th Cir. 2009); Mercury Coal

& Coke, Inc. v. Mannesmann Pipe & Steel Corp., 696 F.2d 315, 317 (4th Cir. 1982); Hoffmann v.

Equip. Rental, Ltd., 643 F.2d 987, 990 (4th Cir. 1981) (stating that contracting parties have

“broad power . . ..to permit notice to be served by the opposing party, or even to waive notice

altogether. . . .” (quotation omitted)); H.V. Indus., Inc. v. Fall Safe On Line-Comércio de Produtos

de ProteccZo Pessoal Lda. of Port., No. 17-cv-208, 2017 WL 10222370, at *2 (M.D.N.C. Aug. 11,

2017) (unpublished); see, e.g., Hartford Accident & Indem. Co. v. Ace Am. Reinsurance Co., 279

Conn. 220, 223, 901 A.2d 1164, 1167 (2006); Pittsburg Nat’! Bank v. Kassir, 153 F.R.D. 580,

583-84 (W.D. Pa. 1994) (citing Cont’| Bank v. Brodsky, 225 Pa. Super. 426, 429-30, 311 A.2d 676,

677-78 (1973)); Gilbert v. Burnstine, 255 N.Y. 348, 355, 174 N.E. 706, 708 (1931); cf. Pennoyer

v. Neff, 95 U.S. 714, 735 (1877) (“It is not contrary to natural justice that a man who has agreed to

receive a particular mode of notification of legal proceedings should be bound by a judgment in

which that particular mode of notification has been followed, even though he may not have actual

notice of them.” (quotation omitted), abrogated on other grounds by Shaffer v. Heitner, 433 U.S.

186 (1977).

Determining whether CBL complied with the terms of the parties’ loan agreement requires

this court to interpret a written contract. Under North Carolina law, interpreting a written contract

is a question of law for the court. See Briggs v. Am. & Efird Mills, Inc., 251 N.C. 642, 644, 111

S.E.2d 841, 843 (1960); Brown v. Between Dandelions, Inc., 849 S.E.2d 67, 70 (N.C. Ct. App.

2020); N.C. Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. 530, 532, 530 S.E.2d 93, 95

(2000). “[T]he court may not ignore or delete any of [the contract’s] provisions, nor insert words

into it, but must construe the contract as written, in light of the undisputed evidence as to the custom,

usage, and meaning ofits terms.” Martin v. Martin, 26 N.C. App. 506, 508, 216 S.E.2d 456, 457-58

(1975); see T.M.C.S., Inc. v. Marco Contractors, Inc., 244 N.C. App. 330, 341-42, 780 S.E.2d 588,

597 (2015). “If the plain language of a contract is clear, the intention of the parties is inferred from

the words of the contract.” Hemric v. Groce, 169 N.C. App. 69, 76, 609 S.E.2d 276, 282 (2005)

(quotation omitted); see Potter v. Hileman Lab’ys, Inc., 150 N.C. App. 326, 331, 564 S.E.2d 259,

263 (2002); Bicket v. McLean Secs., Inc., 124 N.C. App. 548, 552-53, 478 S.E.2d 518, 521 (1996).

CBL argues that it served AT Denmark according to the terms of the parties’ loan agreement.

The loan agreement provides that AT Denmark “IRREVOCABLY CONSENTS TO SERVICE OF PROCESS

IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.11.” [D.E. 19-1] 5. Section 10.11 provides

that service of process “shall be deemed to have been validly served . . . one (1) Business Day after

deposit with a reputable overnight courier with all charges prepaid . .. which shall be addressed to

the party to be notified and sent to....

AT Denmark Investments, ApS

2222 Sedwick Rd., Durham, NC 27713

Attn: Chairman

Email: gel@eliequity.com.”

Id. at 4.

The plain language of the contract is clear, and CBL complied with the contract’s service of

process provision. Specifically, on June 11, 2020, CBL deposited service of process with FedEx,

a reputable overnight courier, with charges prepaid, and addressed the package to the address that

AT Denmark specified in the loan agreement. See id. at 5. Thus, on June 12, 2020—“one (1)

Business Day” after CBL deposited service of process with FedEx—CBL validly served AT

Denmark under North Carolina law. See Surratt, 263 N.C. at 469, 139 S.E.2d at 722; Brinson, 238

N.C. at 509, 78 S.E.2d at 337; Shavender, 118 N.C. at 31-32, 23 S.E. at 979; Rossi, 244 N.C. App.

at 655, 781 S.E.2d at 653-54; Speedway Motorsports, 209 N.C. App. at 481-82, 707 S.E.2d at 390;

Montgomery, 110 N.C. App. at 237-38, 429 S.E.2d at 440-41. Accordingly, CBL also validly

served AT Denmark under North Carolina law when CBL served AT Denmark according to the

terms of the loan agreement.

B.

In opposition, AT Denmark argues that CBL’s service of process was invalid because CBL

failed to serve process according to the Hague Convention. Article 1 of the Hague Convention

provides that “[t]he present Convention shall apply in all cases, in civil or commercial matters,

10

where there is occasion to transmit a judicial or extrajudicial document for service abroad.”

Convention Done at The Hague, art. 1, Nov. 15, 1965, 20 U.S.T. 361, 362 [hereinafter Hague

Convention]; see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

“[C]ompliance with the Convention is mandatory in all cases to which it applies.” Id. at 705

(emphasis added). Generally, the Hague Convention requires that a plaintiff serve process on a

designated “Central Authority” in the defendant’s country and translate the complaint and

accompanying documents into the defendant’s language. Koehler v. Dodwell, 152 F.3d 304, 307

(4th Cir. 1998); see Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004); Vorhees v. Fischer &

Krecke, 697 F.2d 574, 575 (4th Cir. 1983). However, parties may contractually agree to avoid the

Hague Convention’s service of process requirements. See Masimo Corp. v. Mindray DS USA Inc.,

No. SACV 12-02206-CJCGPRx), 2013 WL 12131723, at *3 (C.D. Cal. Mar. 18, 2013)

(unpublished); see Pittsburgh Nat’! Bank, 153 F.R.D. at 584. Additionally, “[w]here service on a

domestic agent is valid and complete under both state law and the Due Process Clause . . . the

Convention has no further implications . . . . [because] [t]he only transmittal to which the

Convention applies is a transmittal abroad that is required as a necessary part of service.” Schlunk,

486 U.S. at 707; see United States ex. rel. Walterspiel v. Bayer AG, 639 F. App’x 164, 166 (4th Cir.

2016) (per curiam) (unpublished); Lisson v. ING Groep N.V., 262 F. App’x 567, 570 (Sth Cir. 2007)

(per curiam) (unpublished).

AT Denmark consented to domestic service when it agreed to service of process according

to the method defined in the loan agreement’s notices provision or to service by “ANY OTHER

MANNER PERMITTED” under North Carolina law. [D.E. 19-1] 5. Additionally, as explained, when

CBL served AT Denmark according to the terms of the parties’ loan agreement, service of process

was “valid and complete” under North Carolina law and the Due Process Clause.” Thus, CBL was

2 Service is valid and complete under the Due Process Clause where service is personal or

is made by “substituted service that provides notice reasonably calculated, under all the

11

not required to serve AT Denmark according to the Hague Convention. See Hague Convention, 20

US.T. at 362; Schlunk, 486 U.S. at 707; Bayer AG, 639 F. App’x at 166; Lisson, 262 F. App’x at

570; Pittsburgh Nat’] Bank, 153 F.R.D. at 583-84.

C.

On June 12, 2020, CBL validly served AT Denmark pursuant to North Carolina law under

Rule 4 of the North Carolina Rules of Civil Procedure and according to the terms of the parties’ loan

agreement. CBL was not required to serve AT Denmark according to the Hague Convention. From

June 12, 2020, AT Denmark had 30 days to file a notice removal. See 28 U.S.C. § 1446(b). AT

Denmark, however, did not file a notice of removal until July 24, 2020 (i.e., 42 days later). See

[D.E. 1]; Fed. R. Civ. P. 6(a)(1). Because AT Denmark failed to comply with section 1446(b)’s 30-

day limit, the notice of removal is untimely. See Flores, 563 F. App’x at 268; Barbour, 640 F.3d at

611; Mulcahey, 29 F.3d at 151. Thus, AT Denmark forfeited its right to remove this action to federal

court. See Barbour, 640 F.3d at 611; Northrup Grumman, 2016 WL 3144330, at *4; Parker, 104 F.

Supp. 2d at 585; see also Elliott, 883 F.3d at 390; Common Cause, 956 F.3d at 252; Palisades

Collections, 552 F.3d at 333-34; Md. Stadium Auth., 407 F.3d at 260; Mason, 543 F. Supp. at 446

circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Schlunk, 486 U.S. at 705 (quotation omitted); Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950); see Enovative Techs., LLC v. Leor, 622

F, App’x 212, 214 (4th Cir. 2015) (per curiam) (unpublished); Snider Int’] Corp. v. Town of Forest

Heights, 739 F.3d 140, 146 (4th Cir. 2014). “Determining whether service of process was

reasonably calculated to reach a party involves analysis of the particular circumstances of each case.”

Va. Lime Co. v. Craigsville Distr. Co., 670 F.2d 1366, 1368 (4th Cir. 1982).

AT Denmark does not argue that the method for service of process specified in the parties’

loan agreement violates the Due Process Clause. Nor could it. CBL and AT Denmark contractually

agreed to service of process by the method prescribed in the loan agreement. As such, analyzing the

“particular circumstances” of this case, the method by which CBL served AT Denmark was

“reasonably calculated” to provide AT Denmark with notice and, therefore, comports with the Due

Process Clause. See Schlunk, 486 U.S. at 705; Mullane, 339 U.S. at 314; Leor, 622 F. App’x at 214;

Snider Int’], 739 F.3d at 146; Pittsburgh Nat’] Bank, 153 F.R.D. at 583-84.

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n.3. Accordingly, the court remands this action to Wake County Superior Court.’

Il.

CBL seeks just costs and attorneys’ fees pursuant to 28 U.S.C. § 1447(c). See [D.E. 21] 8-9.

“An order remanding a removed case to state court ‘may require payment of just costs and any actual

expenses, including attorney[s’] fees, incurred as a result of the removal.’” Martin v. Franklin Cap.

Corp., 546 U.S. 132, 134 (2005) (quoting 28 U.S.C. § 1447(c)). “The process of removing a case

to federal court and then having it remanded back to state court delays resolution of the case,

imposes additional costs on both parties, and wastes judicial resources.” Id. at 140. The “standard

for awarding fees should turn on the reasonableness of the removal.” Id. at 141. “Absent unusual

circumstances, courts may award attorneys’ fees under [section] 1447(c)” where the removing party

“lacked an obj ectively reasonable basis for seeking removal.” Id. “Conversely, when an objectively

reasonable basis exists [for removal], fees should be denied.” Id. Bad faith is not required to award

just costs and attorneys’ fees under section 1447(c). See In re Lowe, 102 F.3d 731, 733 n.2 (4th Cir.

1996).

A cursory examination of the relevant statutes and binding precedent would have revealed

to AT Denmark that CBL properly served process under North Carolina law, that the Hague

Convention does not apply to this case, and that AT Denmark missed the time window to remove

the action to this court. See, e.g., Schlunk, 486 U.S. at 707; Barbour, 640 F.3d at 611; Brinson, 238

N.C. at 509, 78 S.E.2d at 337; Washington, 233 N.C. App. at 420-23, 761 S.E.2d at 655-58.

Accordingly, AT Denmark had no objectively reasonable basis for removal, and CBL is entitled to

an award of just costs and attorneys’ fees incurred as a result of the removal. See 28 U.S.C. §

1447(c).

3 In light of this court’s conclusions about process and service of process, the court denies

AT Denmark’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), (4), (5) [D.E. 38].

Wake County Superior Court can address AT Denmark’s motion to dismiss under Rule 12(b)(6).

The court also dismisses as moot CBL’s motion to consolidate [D.E. 31].

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IV.

Insum, the court GRANTS plaintiff’ s motion to remand and for just costs and attorneys’ fees

[D.E. 20], DENIES defendant’s motion to dismiss under Rules 12(b)(2), (4), and (5) [D.E. 38], and

DISMISSES AS MOOT plaintiff's motion to consolidate [D.E. 31]. The court REMANDS the

action to Wake County Superior Court. That court can address defendant’s motion to dismiss under

Rule 12(6)(6). Plaintiff may file a memorandum and documents supporting its just costs and

attorneys’ fees by April 12, 2021. The parties may thereafter respond and reply in accordance with

the local rules.

SO ORDERED. This (8 day of March 2021.

Aa Deven

J S C. DEVER Il

United States District Judge

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