19‐746‐cv
Katherine Wade v. Mark Vane Burns

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 11th day of February, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    GUIDO CALABRESI,
                    DENNY CHIN,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

KATHERINE WADE, Insurance Commissioner,
State of Connecticut,
                         Plaintiff‐Appellee,
                     ‐v‐                                                           19‐746‐cv

MARK VANE BURNS, An Individual,
                    Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLEE:                                      JAMES W. CALEY, Assistant Attorney
                                                             General, for William Tong, Attorney General of
                                                             Connecticut, Hartford, Connecticut.
FOR DEFENDANT‐APPELLANT:                 ANTHONY D. GREEN, Winget, Spadafora &
                                         Schwartzberg, LLP, New York, New York.

              Appeal from the United States District Court for the District of

Connecticut (Haight, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

              Defendant‐appellant Mark Vane Burns appeals from an order of the

district court entered on February 25, 2019, remanding this action to the Connecticut

Department of Insurance. On appeal, Burns argues that the district court erred in

remanding this action to the state agency after concluding that this matter was

improperly removed to federal court. We assume the partiesʹ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

              On August 9, 2018, plaintiff‐appellee Katherine Wade, the Connecticut

Insurance Commissioner (the ʺCommissionerʺ), filed a state administrative complaint

against Burns. The complaint alleged that Burns engaged in false and deceptive

conduct while selling Medicare Advantage policies. This conduct allegedly included:

forging a 70‐year old customerʹs signature and engaging in belligerent and loud

conduct with a 79‐year old customer. Burns received the complaint on August 13, 2018.

              On September 28, 2018, Burns filed a notice of removal to the district

court, claiming that removal was permitted under the federal officer removal statute, 28

U.S.C. § 1442(a)(1). On October 2, 2018, the district court issued a memorandum and
                                             2
order directing the Commissioner to respond to Burnsʹs removal notice, as the statute

referred only to removal from ʺstate courtʺ and not from a state agency.

              On October 26, 2018, the Commissioner filed a motion to remand, and the

district court granted the motion on February 25, 2019. In doing so, the district court

held that: (1) a state agency was not a ʺstate courtʺ within the meaning of the federal

officer removal statute, 28 U.S.C. § 1442, (2) there was no basis for federal jurisdiction

and, (3) even if there was federal jurisdiction, Burnsʹs removal petition was untimely

because it was filed past the 30‐day deadline set forth in 28 U.S.C. § 1446(b)(1).

Accordingly, the district court granted the Commissionerʹs motion for remand. This

appeal followed.

                                    DISCUSSION

       A.     Applicable Law

              We review de novo a district courtʹs decision on a motion to remand.

Bounds v. Pine Belt Mental Health Care Res., 

, 214 (2d Cir. 2010). The

removing defendant bears the burden of demonstrating that removal of the action is

proper. United Food & Comm. Workers Union, Local 919, AFL‐CIO v. CenterMark Props.

Meriden Square, Inc., 

, 301 (2d Cir. 1994).

              Under 28 U.S.C. § 1446(a), a defendant seeking to remove an action to

federal court must file a notice of removal ʺcontaining a short and plain statement of the

grounds for removal.ʺ Such notice of removal ʺshall be filed within 30 days after the


                                              3
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.ʺ 28

U.S.C. § 1446(b)(1). This thirty‐day clock only begins to run ʺwhen the initial pleading

enables the defendant to intelligently ascertain removability from the face of such

pleading, so that . . . the defendant can make a short and plain statement of the grounds

for removal as required by 28 U.S.C. § 1446(a).ʺ Whitaker v. Am. Telecasting, Inc., 

, 205‐06 (2d Cir. 2001) (internal quotation marks and alterations omitted).

       B.     Application

              The district court held that, even assuming grounds existed for removal,

remand was required because Burns filed his notice of removal after the 30‐day

deadline set forth in 28 U.S.C. § 1446(b)(1). We agree. The Commissioner filed a

complaint against Burns on August 9, 2018. Burns received the complaint on August

13, 2018. He did not file a notice of removal until September 28, 2018. Hence, 46 days

elapsed after Burns received the complaint before he filed his notice of removal.

Therefore, Burns did not meet the requirements of § 1446(b)(1).

              In an effort to overcome the untimeliness of his removal petition, Burns

suggests that removability was not apparent from the face of the administrative

complaint. But Burns argued otherwise in his notice of removal. See J. Appʹx at 32‐33

(ʺThe Commissionerʹs claims necessarily raise a federal issue, to wit, preemption under

federal law. . . . [O]ne overriding federal issue . . . predominates on the face of each


                                              4
Count of the Complaintʺ). Accordingly, because Burns was able to ascertain his

asserted basis for removal from the face of the complaint, he was required to file his

notice of removal within the 30‐day period.

              Finally, Burns argues that the district court erred by not requiring the

Commissioner to ʺpresent factual evidenceʺ showing that his notice of removal was

untimely. Appellantʹs Br. at 26. The burden of establishing that removal is proper

rested on Burns, however, not the Commissioner. See United 

(ʺWhere, as here, jurisdiction is asserted by a defendant in a removal petition, it follows

that the defendant has the burden of establishing that removal is proper.ʺ). Because we

conclude that Burnsʹs notice of removal was untimely, we need not reach Burnsʹs other

arguments on appeal. See Natʹl R.R. Passenger Corp. v. McDonald, 

, 100 (2d

Cir. 2015) (ʺWe may affirm on any ground with support in the record.ʺ).

                                         *    *   *

              For the foregoing reasons, the order of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




                                              5