Document text
1 UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
HERITAGE HOTELS & RESORTS
d/b/a HOTEL ENCANTO DE LAS
CRUCES ,
Plaintiff,
v.
AFFILIATED FM INSURANCE COMPANY d/b/a FM GLOBAL,
Defendant.
Case No. 1:17-cv -01194
NOTICE OF REMOVAL
TO THE CLERK OF THE ABOVE-EN TITLED COURT:
PLEASE TAKE NOTICE that Defendant Affiliated FM Insurance Company
d/b/a FM Global (hereinafter “AFM ”) hereby removes to this Court the state
court action described below .
1. On October 3, 2017, an action was commenced in the Third Judicial
Distr ict Court of Dona Ana County entitled Heritage Hotels & Resorts d/b/a Hotel
Encanto de Las Cruces v. Affiliated FM Insurance Company d/b/a FM Global and
assigned case number D -307-CV -2017-03164. A copy of the complaint is attached
hereto as Exhibit A. Case 1:17-cv-01194-JB-JHR Document 1 Filed 12/04/17 Page 1 of 4
2 2. AFM was served a copy of the summons and complaint on
November 8, 2017. A copy of the summons and r eturn showing the November 8,
2017 service date is attached hereto as Exhibit B.
3. The Court has original jurisdiction over this action pursuant to 28
U.S.C. § 1332. Defendant AFM may remove this action to this Court pursuant to
28 U.S.C. § 1441(b). This is a civil action between citizens of different states and
the amount in controversy exceeds $75,000, excluding interest and costs.
4. Plaintiff Heritage Hotels & Reso rts d/b/a Hotel Encanto de Las
Cruces is a New Mexico corporation with its principal place of business in
Albuquerque, New Mexico. See Exhibit A, ¶ 1.
5. Defendant AFM is a Rhode Island corporation with its principal
place of business in Johnston, Rhode Islan d. See Exhibit A, ¶ 3.
6. The amount in controversy exceeds $75,000. Although Plaintiff’s
complaint is silent as to the amount of damages sought , a removing defendant
may present evidence, including affidavits from its employees, to establish that a
plaintiff ’s claim exceeds $75,000 . McPhail v. Deere & Co., 529 F.3d 947, 954- 55
(10th Cir. 2008); accord Aranda v. Foamex Int’l, 884 F. Supp. 2d 1186, 1204-07
(D.N.M. 2012).
7. Attached as Exhibit C hereto is the Affidavit of Thanh Tien. Tien is a
claims adjuster for AFM . Tien’s affidavit establishes that more than $1.7 million
of Plaintiff’s claimed losses resulting from the October 3, 2015 hail storm have Case 1:17-cv-01194-JB-JHR Document 1 Filed 12/04/17 Page 2 of 4
3 not been paid by AFM . Exhibit C, ¶ 4. Tien’s affidavit also establishes that
Plaintiff has submitted a sworn proof of loss statement to AFM claiming that its
losses exceed $2.9 million. Exhibit C, ¶ 5.
8. Plaintiff’s complaint alleges that AFM breached the insurance
contract by refusing to pay the entire amount of Plaintiff’s claim ed losses. See,
e.g., Exhibit A, ¶ 52. Plaintiff also alleges that AFM d engaged in unfair trade
practices and that, as a result of AFM ’s conduct, Plaintiff is entitled to an award
of up to three times its actual damages. Exhibit A, ¶¶ 57-60.
9. Based on the amount of the claim Plaintiff has submit ted to AFM
and Plaintiff’s allegation that it is entitled to treble damages, the amount in
controversy necessarily exceeds $75,000. Consequently, this Court has original
jurisdiction over this dispute pursuant to 28 U.S.C. § 1332.
10. This Removal is timely.
11. This Notice of Removal will be served on Plaintiff promptly after it
is filed.
12. A Notice of Filing Removal, along with a true and correct copy of
this Notice of Removal of Civil Action, with be filed with the Clerk of the Third
Judicial District Court, Count y of Dona Ana, State of New Mexico, promptly
after the filing of this Notice of Removal.
13. A Civil Cover Sheet is attached hereto as Exhibit D.
Case 1:17-cv-01194-JB-JHR Document 1 Filed 12/04/17 Page 3 of 4
4 Dated: December 4 , 2017 PARK & ASSOCIATES LLC
By: /s/ Alfred A. Park
6100 Uptown Blvd., NE # 35 0
Albuquerque, NM 87110
Phone: (505) 246-2805
Fax: (505) 246-2806
Email: [email protected]
Scott G. Johnson
Lisa L. Beane (application for admission to
be filed)
ROBINS KAPLAN LLP
800 LaSalle Aven ue
Suite 2800
Minneapolis, MN 55402
Phone: (612) 349-8500
Fax: (612) 339-4181
Email: [email protected]
LBeane@Rob insKaplan.com
Attorneys for Defendant Affiliated FM
Insurance Co.
88552454.1 Case 1:17-cv-01194-JB-JHR Document 1 Filed 12/04/17 Page 4 of 4