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MK CONTRACTORS, LLC v. AMERISURE MUTUAL INSURANCE CO. et al

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Case Number: 
1:15-cv-22171 Search Pacer
ACE Group party(s): 
Opposing Party: 
MK Contractors, LLC
Court Type: 
Federal
US District Court: 
Southern District of Florida
Date Filed: 
Jun 8 2015

NOTICE OF REMOVAL

Defendant ZURICH AMERICAN INSURANCE COMPANY and AMERICAN
GUARANTEE & LIABILITY INSURANCE COMPANY ("Zurich") respectfully sets forth their
grounds for removal as follows:
1.    This is an action for declaratory relief brought by Plaintiff MK CONTRACTORS,
EEC, ("MK") seeking insurance coverage from Zurich and several other insurance companies in
regard to a lawsuit brought against MK relating to construction defects claimed as a result of the
development of a condominium project in Miami-Dade County, Florida known as Skyline on
Brickell Condominiums (the "Project"). MK was general contractor of the Project.
2.    Suit was commenced on March 14, 2013 in the Eleventh Judicial Circuit in and
for Miami-Dade County, Florida. The case was stayed on August 26, 2013. As no progress was
made or action taken in this matter, the case was dismissed for lack of prosecution on November
6, 2014 and reinstated on February 9, 2015. As the matter did not progress in state court until the
matter was reinstated and as the time for removal also did not begin until this matter was
reinstated on February 9, 2015, removal is being timely sought. Price v. Wyeth Holdings Corp.,
505 F.3d 624 (7th Cir. 2007) ("It goes without saying that a dismissed case cannot be removed;
removal time limits do not continue to run after a case has been dismissed."); Boardakan
Restaurant, LLC v. Atlantic Pier Associates, LLC, CIV. A. No. 11-5676, 2012 WL 365108, at *
5 (E.D. Pa. Aug. 27 2012) ("It is also inconsistent with the purpose of § 1446(b) [to run the
removal clock when a case is dismissed and cannot be removed]. The one-year limitation is
intended to prevent removal from occurring after substantial progress is made in state court. No
progress is made in state court while a suit is dismissed, so it does not contravene the statute's
purpose to stay the removal clock during that hiatus.") (internal citations and quotations omitted).
3.    Zurich was served with the operative second amended complaint in this matter on
May 7, 2015. This Notice of Removal is being filed within 30 days of Zurich's notice of the suit.
4.    Zurich was at all times herein, including but not limited to the time the action was
commenced and at the time the Notice of Removal was filed, a citizen of a state other than
Florida, being incorporated in New York, with its principal place of business in Schaumburg,
Cook County, Illinois.
5.    Defendant Amerisure Mutual Insurance Company ("Amerisure") was at all times
herein, including but not limited to the time the action was commenced and at the time the
Notice of Removal was filed, a citizen of a state other than Florida, being incorporated in
Michigan, with its principal place of business in Farmington Hills, Oakland County, Michigan.
6.    Defendant American Empire Surplus Lines Insurance Company ("American
Empire") was at all times herein, including but not limited to the time the action was commenced
and at the time the Notice of Removal was filed, a citizen of a state other than Florida, being
incorporated in Delaware, with its principal place of business in Cincinnati, Hamilton County,
Ohio.
7.    Defendant Westchester Surplus Lines Insurance Company ("Westchester") was at
all times herein, including but not limited to the time the action was commenced and at the time
the Notice of Removal was filed, a citizen of a state other than Florida, being incorporated in
Georgia, with its principal place of business Philadelphia, Philadelphia County, Pennsylvania.
8.    Defendant Crum & Forster Specialty Insurance Company ("Crum") was at all
times herein, including but not limited to the time the action was commenced and at the time the
Notice of Removal was filed, a citizen of a state other than Florida, being incorporated in
Arizona, with its principal place of business in Morristown, Morris County, New Jersey.
9.    Defendant The Insurance Company of the State of Pennsylvania ("Insurance
Company of PA") was at all times herein, including but not limited to the time the action was
commenced and at the time the Notice of Removal was filed, a citizen of a state other than
Florida, being incorporated in Pennsylvania, with its principal place of business in New York,
New York County, New York.
10.    Defendant American Guarantee & Liability Insurance Company ("American
Guarantee") was at all times herein, including but not limited to the time the action was
commenced and at the time the Notice of Removal was filed, a citizen of a state other than
Florida, being incorporated in New York, with its principal place of business in Schaumburg,
Cook County, Illinois.
11.    Defendant National Union Fire Insurance Co. of Pittsburgh, PA ("National
Union") was at all times herein, including but not limited to the time the action was commenced
and at the time the Notice of Removal was filed, a citizen of a state other than Florida, being
incorporated in Pennsylvania, with its principal place of business in New York, New York
County, New York.
12.    Defendant ACE American Insurance Company ("ACE") was at all times herein,
including but not limited to the time the action was commenced and at the time the Notice of
Removal was filed, a citizen of a state other than Florida, being incorporated in Pennsylvania,
with its principal place of business in Philadelphia, Philadelphia County, Pennsylvania.
13.    Defendant American Home Assurance Company ("American Home") was at all
times herein, including but not limited to the time the action was commenced and at the time the
Notice of Removal was filed, a citizen of a state other than Florida, being incorporated in New
York, with its principal place of business in New York, New York County, New York.
14.    MK is a Florida limited liability company, with is principal place of business in
Miami-Dade County, Florida and with its members having citizenship in Florida as well.
15.    The amount in controversy, exclusive of interest and costs, exceeds $75,000. This
is based upon the pleadings in the underlying action, for which MK seeks defense and indemnify
from Zurich and the other insurer defendants, and discovery to date in the underlying action,
which allege damages are in excess of $2,000,000.
16.    As Zurich, Amerisure, American Empire, Westchester, Crum, Insurance
Company of PA, National Union, ACE and American Home are not citizens of the State of
Florida and MK is a citizen of the State of Florida and because the amount in controversy is in
excess of $75,000, exclusive of interest, attorney’s fees and costs, this action is properly
removable to this Court pursuant to 28 U.S.C. § 1441.
17.    By filing this Notice of Removal, Zurich consents to the removal to this action
from state to federal court.
18.    Amerisure, American Empire, Westchester, Crum, Insurance Company of PA,
National Union, ACE and American Home have all advised counsel for Zurich that they consent
to removal of this action from state to federal court as well.
19.    The consent of the remaining Defendants, Skyline on Brickell Condominium
Association, Inc. ("Skyline"), Air Management Systems, Inc. ("AMSI"), and Chem-Aqua, Inc.
("Chem-Aqua"), subcontractors on the Project, is not required as there are no allegations in the
Complaint against Skyline, AMSI or Chem-Aqua. Additionally, these parties should be
realigned as their interests are more properly aligned with that of MK, as evidenced Skyline's
cross-claim against the insurer defendants, in which Skyline also takes the position that there is
coverage relating to the Project under the insurance policies issued by the insurer defendants.
20.    Pursuant to 28 U.S.C. §1446(a), a copy of all process, pleadings and orders then
on file in the state court as of June 5, 2015 are attached as Exhibit A.1
21.    A copy of this Notice will be promptly filed with the Clerk of the Circuit Court of
the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.
Wherefore, Zurich American Insurance Company and American Guarantee & Liability
Insurance Company respectfully request this Court to remove this Miami-Dade action to this
Court pursuant to the provisions of 28 U.S.C. § 1441.
 

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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