REPORT AND RECOMMENDATION

SONJA F. BIVINS, Magistrate Judge.

This case is before the Court on Plaintiff Tamela Gates' Motion to Remand. (Doc. 9). The motion, which has been fully briefed and is ripe for resolution, has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c). Upon consideration of all matters presented, the undersigned RECOMMENDS, for the reasons stated herein, that Plaintiff's Motion to Remand (Doc. 9) be GRANTED, and that this action be REMANDED to the Circuit Court of Mobile County, Alabama.

I. Background Facts

Plaintiff, Tamela Gates (hereinafter "Plaintiff"), commenced this personal injury action in the Circuit Court of Mobile County, Alabama on December 27, 2012, against Defendant "Marriott International, Inc., d/b/a Mobile Marriott" and various fictitious defendants. (Doc. 1-1 at 8). In the Complaint, Plaintiff alleges that Defendant "Marriott International, Inc., d/b/a Mobile Marriott," was negligent and wanton in failing to operate and maintain its hotel premises, located at 3101 Airport Boulevard in Mobile, Alabama, in a safe condition. According to Plaintiff, while attending a meeting on the premises on September 13, 2012, she was caused to slip and fall on "a hidden and/or latent defect and/or obstruction," namely a buckled floor map, and was injured as a result. (Id. at 10-14). Plaintiff seeks an unspecified amount of compensatory and punitive damages for injuries she allegedly sustained from the fall. (Id. at 14).

At Plaintiff's request, a copy of the summons and complaint was served via certified mail on the registered agent of "Marriott International, Inc., d/b/a Mobile Marriott" in Montgomery, Alabama. (Id. at 15, 26-29). The registered agent accepted service on December 31, 2012. (Id. at 30).

On January 24, 2013, "Marriott International, Inc.," through its counsel, Warren Butler, filed a Motion to Dismiss asserting that Marriott International, Inc., was incorrectly identified in the complaint as "Marriott International, Inc., d/b/a Mobile Marriott." (Id. at 32). Marriott International, Inc. sought dismissal on the ground that it was merely the franchisor of the hotel known as the "Mobile Marriott" located at 3101 Airport Boulevard, Mobile, Alabama, and as such, it had no responsibility for the day-to-day operations of the hotel. (Id. at 32-33). Marriott International, Inc. further alleged that the "Mobile Marriott" located at 3101 Airport Boulevard, Mobile, Alabama was operated by a franchisee, and that the franchisee, as opposed to Marriott International, Inc. was the entity responsible for the day-to-day management of the hotel. (Id.). Marriott International, Inc. did not, however, provide the name of the franchisee referenced in its motion.1

On January 28, 2013, Plaintiff caused a process server to serve a copy of the summons and complaint via hand delivery on the hotel located at 3101 Airport Boulevard in Mobile, Alabama. (Doc. 9-2-1). The summons was addressed to "Marriott International, Inc., d/b/a Mobile Marriott" and was hand delivered to Jessica Williams, the manager of the hotel located at that address.2 (Id.).

In an email dated February 23, 2013, counsel for Marriott International, Inc. identified "Crescent Hotels & Resorts, LLC" as the correct defendant in this case. (Doc. 9-1 at 3). On February 27, 2013, Plaintiff amended her complaint to substitute "Crescent Hotels & Resorts, LLC d/b/a Mobile Marriott" for "Marriott International, Inc., d/b/a Mobile Marriott" in the complaint. (Doc. 1-1 at 91-98).

On March 28, 2013, Defendant Crescent Hotels & Resorts, LLC, represented by the same counsel that represented "Marriott International, Inc.," filed a Notice of Removal under 28 U.S.C. §§ 1441 and 1446 on the basis of diversity jurisdiction. (Doc. 1). On April 10, 2013, Plaintiff filed the instant Motion to Remand this action to state court. (Doc. 9).

II. Analysis

A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441 and, therefore, must establish the existence of federal jurisdiction. See Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) ("[I]n removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists.") (citation omitted). Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all doubts resolved in favor of remand. See University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). "[T]here is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001).

As noted supra, this action was removed by Defendant Crescent Hotels & Resorts, LLC, pursuant to 28 U.S.C. §§ 1441 and 1446 on the basis of diversity of citizenship under 28 U.S.C. § 1332. Title 28 U.S.C. § 1441(a) provides, in relevant part:

28 U.S.C. § 1441(a). Where the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332, the removing defendant has the burden of demonstrating that there is (1) complete diversity of citizenship and (2) an amount-in-controversy greater than $75,000.3 See 28 U.S.C. § 1332(a).

In addition, 28 U.S.C. § 1446(b) provides:

In this action, Plaintiff alleges that the removal is untimely because it was filed eighty-eight days after the registered agent for "Marriott International, Inc. d/b/a Mobile Marriott" was served via certified mail on December 31, 2012 and sixty days after a private process server served, on January 28, 2013, a copy of the summons and original complaint on Jessica Williams, the hotel manager at the Marriott hotel located at 3101 Airport Boulevard in Mobile, Alabama. (Id. at 4-5). In addition, Plaintiff alleges that the Court lacks jurisdiction inasmuch as Defendant cannot establish the requisite amount in controversy. (Id. at 5-6). Thus, Plaintiff argues that this action should be remanded. (Id.).

Defendant counters that with Plaintiff's amended complaint, Marriott was dismissed as a defendant, that Crescent was added as a defendant, and that Plaintiff was required to serve Crescent. (Doc. 13). According to Defendant, prior to the amended complaint, Crescent was not a party to the action, and had no right or obligation to remove the action. Defendant further asserts that mere notice of the complaint — prior to formal service of the complaint on Crescent — was not enough to trigger the start of the 30 day removal period under § 1446(b). Defendant also argues that under § 1446(b), as amended, "[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons. . . to file the notice of removal." According to Defendant, counsel for the parties agreed that defense counsel would accept service for Crescent, with an effective service date of February 28, 2013, after which Crescent had 30 days in which to remove this action. (Doc. 13 at 3).

As noted supra, a civil action may be removed to federal court within thirty days of service of process on the defendant. See 28 U.S.C. § 1446(b). The Supreme Court held in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999), that the removal window in § 1446(b) "is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Thus, the thirty-day removal window cannot begin until an entity is officially made a defendant through formal process. Murphy Bros., 526 U.S. at 347-48. Until formally served and brought under a court's authority, an entity is not a defendant, but is simply a non-party that lacks standing to remove. Id. at 347 ("[a]n individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process."). Thus, the issue before this Court is whether, and at what point, Crescent became the defendant and thereby obtained standing to remove.

The Court finds Brizendine v. Continental Cas. Co., 773 F.Supp. 313, 314 (N.D. Ala. 1991) instructive on this issue. In Brizendine, the plaintiff filed a breach of contract and bad faith action against "CNA Insurance Company," which was the trade name for the proper defendant, "Continental Casualty Company." The defendant filed a motion to dismiss arguing that it had been improperly named in the complaint, that CNA Insurance Company was merely a trade name, and that service upon the defendant was insufficient. Id. at 315. In response, the plaintiff filed an amended complaint which substituted the name "Continental Casualty Company" for "CNA Insurance Company." Id. The defendant Continental Casualty Company then filed a Notice of Removal twenty-nine days after being served with the amended complaint, but 108 days from the date that it had been served with the original complaint naming CNA Insurance Company as defendant. Id. In granting the plaintiff's motion to remand, the court held that Continental Casualty Company's removal was untimely because its receipt of the original complaint, which incorrectly utilized its trade name "CNA Insurance Company," constituted "receipt by the defendant [Continental Casualty Company], 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 as those words are used in 28 U.S.C. § 1446(b)." Id. at 316. The court noted that the defendant had widely used the trade name by which it had been incorrectly designated in the original complaint and that it was on notice of the plaintiff's claims after it received the original complaint. Id. at 315-16. The court stated:

Brizendine, 773 F. Supp. at 321 n.9 (emphasis in original).

Similarly, in Ware v. Wyndham Worldwide Inc., 2010 U.S. Dist. Lexis 60734 (D.N.J. 2010), the plaintiff, who was employed by Wyndham Vacation Resorts("WVR"), which is a subsidiary of a subsidiary of Wyndham Worldwide Corporation ("WWC"), filed suit against "Wyndham Worldwide Inc." ("WWI"), a non-entity, alleging employment discrimination under state law. On October 7, 2009, WVR accepted service of a summons and the plaintiff's complaint and soon thereafter, filed an answer advising that Defendant Wyndham Vacation Resorts, Inc. ("WVR") had been incorrectly named in the complaint as Wyndham Worldwide Incorporated, that plaintiff was employed by WVR, and that WWI was not the proper entity to be named in the action. The parties thereafter stipulated to the formal dismissal of WWI and the substitution of WVR as the sole defendant. After the stipulation was executed and filed with the Court on November 25, 2009, WVR filed a notice of removal on December 16, 2009, and in response, Plaintiff filed a motion to remand on the ground that the removal was untimely. In granting the motion to remand, the court held that two requirements must be satisfied to trigger the running of an intended but improperly named defendant's thirty-day removal window. First, in accordance with the Supreme Court's decision in Murphy Brothers, the intended defendant must be formally served with process. Second, the intended defendant must ascertain or be able to ascertain that it is indeed the intended defendant and that the plaintiff made a mistake in the complaint. The Court observed that the plaintiff had formally served WVR at its correct address, and that the very purpose of the complaint, which detailed numerous acts of misconduct performed by WVR, was to seek relief from the plaintiff's employer. In remanding the action as untimely, the court held that "[a] reasonable entity presented with service under these facts would conclude from an initial glance at the complaint that [p]laintiff clearly intended to sue her employer and only her employer, and that [p]laintiff was mistaken as to her employer's proper corporate name." (Id.)

In this action, the record is undisputed that Defendant, now correctly designated as Crescent Hotels & Resorts, LLC, operates the hotel located at 3101 Airport Boulevard in Mobile, Alabama, which is the subject of the allegations in Plaintiff's original complaint. (Doc. 1-1 at 8; Doc. 1 at 1). It is also undisputed that the manager of Defendant's hotel, Jessica Williams, was personally served on the hotel's premises with a summons and a copy of the original complaint on January 28, 2013. (Id.). Although the complaint incorrectly designated the defendant as "Marriott International, Inc. d/b/a Mobile Marriott," it specifically identified the entity against whom Plaintiff was filing suit, i.e., the operator of the hotel property located at 3101 Airport Boulevard, Mobile, Alabama 36606, on which Plaintiff allegedly sustained her injuries. (Doc. 9-2 at 1; Doc. 1-1 at 10). The hotel at issue is operated by Defendant Crescent Hotels & Resorts, LLC and uses the trade names the "Mobile Marriott" and "Marriott Mobile." (Doc. 9-3 at 1-3; Doc. 9-4; Doc. 9-5). Under the circumstances presented, the undersigned finds that the service effected on Crescent on January 28, 2013 triggered the thirty day period set forth in § 1446(b). See also Aranda v. Foamex Int'l d/b/a FXI, Inc., 884 F.Supp.2d 1186, 1212 (D.N.M. 2012) (where summons and complaint were served on the agent for service of the incorrectly named defendant, the incorrectly named defendant acknowledged that it received a summons and copy of the complaint, and there was sufficient information in the original complaint to put FXI on notice that it was the entity being sued, the court found that service was not defective merely because the defendant was misnamed); Brown v. New Jersey Mfrs. Ins. Group, 322 F.Supp.2d 947, 952-53 (M.D. Tenn. 2004) (holding that thirty-day clock began upon initial service of complaint upon New Jersey Manufacturers Ins. Co., even though plaintiffs intended to sue New Jersey Re-Insurance Company); Iulianelli v. Lionel, LLC., 183 F.Supp.2d 962, 968 (E.D. Mich. 2002)(holding that thirty-day clock began upon initial service of complaint naming Lionel Trains instead of the intended defendant Lionel, LLC); Brizendine, 773 F. Supp. at 315-16 (holding that thirty-day clock began upon initial service of complaint naming CNA Insurance Company instead of the intended defendant, Continental Casualty Company); Jacobson v. Holiday Travel, Inc., 110 F.R.D. 424, 425 (E.D. Wis. 1986) (holding that thirty-day clock began upon initial service of complaint naming Holiday Travel Services, Inc. instead of the intended defendant, Holiday Travel, Inc.).

Therefore, Defendant Crescent Hotels & Resorts, LLC's Notice of Removal, which was filed sixty days after Crescent's hotel manager was personally served at Crescent's business address, was untimely.4 Based on the foregoing, Plaintiff's Motion to Remand is due to be granted.

III. Conclusion

For the reasons discussed herein, the undersigned RECOMMENDS that Plaintiff's Motion to Remand (Doc. 9) be GRANTED, and that this action be REMANDED to the Circuit Court of Mobile County, Alabama.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.