                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1343


ROBIN J. YORK, Administratix of the Estate of Adam R. York,

                       Plaintiff – Appellant,

          v.

PROPERTY AND CASUALTY INSURANCE COMPANY OF HARTFORD,

                       Defendant – Appellee,

          and

JOSHUA MILLER; JOHN J. MILLER; MYRA MILLER; PAUL HOWARD,
JR.,

                       Defendants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
District Judge. (2:12-cv-006582)


Submitted:   October 15, 2014             Decided:   November 12, 2014


Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Graham Bordas, III, Michelle Lee Marinacci, BORDAS &
BORDAS, PLLC, Wheeling, West Virginia; C. Benjamin Salango,
PRESTON & SALANGO, Charleston, West Virginia, for Appellant.
Michael H. Carpenter, Katheryn M. Lloyd, CARPENTER LIPPS &
LELAND LLP, Columbus, Ohio; Catherine M. Stetson, Sean Marotta,
HOGAN LOVELLS US LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Robin York (York), as administrator of the estate of

her son, Adam York (Adam), appeals orders of the district court

denying York’s motion to remand this action to state court, and

granting      defendant     Property      &       Casualty      Insurance       Company       of

Hartford’s (Hartford) motions for relief from default judgment

under Fed. R. Civ. P. 60(b) and for summary judgment.                                      York’s

suit   alleged       that   Hartford     violated         a    provision       of    the    West

Virginia      Unfair    Trade      Practices        Act       (WVUTPA),    W.        Va.    Code

§ 33-11-4(9),         and   engaged       in       common       law    bad-faith           claim

handling, in the manner in which it investigated, litigated, and

eventually      settled      a   claim    York       asserted         under     her       policy

against Hartford.           The district court held that (1) Hartford’s

removal was timely; (2) Hartford was entitled to relief from

judgment because its default was the result of excusable neglect

and it possessed a meritorious defense; (3) Kentucky law, rather

than   West    Virginia     law,    governed        the       dispute;    and       (4)    under

Kentucky      law,    York’s     action    was       untenable.           We    affirm       the

judgment of the district court.



                                           I.

              Adam York died in a single-vehicle automobile accident

on October 13, 2011, in Mingo County, West Virginia.                                Adam was a

passenger in the vehicle driven by Joshua Miller.

                                              3
                 Like his parents, Adam was a Kentucky resident.                   Adam

was insured through his parents’ policy with Hartford, 1 which

featured         a   $100,000      underinsured/uninsured           motorist      (UIM)

benefit.         Soon after the accident, York, through West Virginia

counsel, notified Hartford of the accident and of York’s suit

for   damages        against    Miller   and       his   insurer   in   West   Virginia

state court.         Hartford assigned the claim to an adjuster located

at one of its offices in Indiana.

                 In January 2012, York informed Hartford that Miller’s

insurer had offered to settle her claim for its policy limits,

in    exchange       for   a    waiver   of       Hartford’s   subrogation     rights.

After      two    months   in    which   York      and   Hartford   each   apparently

waited for the other to act, York amended her complaint and

added a UIM claim against Hartford, seeking the $100,000 policy

limit.       Although York properly served Hartford, the complaint

was misfiled due to an internal clerical error, and Hartford

failed to answer.

                 York moved for default.            At the same time, Hartford’s

adjuster continued to converse with York’s counsel in regard to

York’s claim against Miller.              During these conversations, York’s




       1
       Hartford is an Indiana corporation, whose principal place
of business is in Connecticut.



                                              4
counsel never mentioned Hartford’s failure to answer or York’s

pending motion for default.

            On June 11, 2012, Hartford offered to settle York’s

claim for the $100,000 policy limit, but received no response.

The next day, York’s counsel appeared in state court, default

was entered against Hartford, and a hearing on damages was set

for the next month.

            In late July, York served Hartford with a packet of

materials,    including     notice       of    a   hearing     to    approve    the

settlement    between     York   and   Miller,        a   verified   petition    to

approve the settlement, a notice of a hearing on “a writ of

inquiry in accordance with W. Va. R. Civ. P. 55(b)(2),” and one

certificate    of   service.       The       latter   notice    of   hearing    was

intended to apprise Hartford both of the fact that default had

been entered against it, and of the upcoming hearing for default

judgment.     But other than Hartford’s name, which was on the

caption of each page, and the cross-reference to “W. Va. R. Civ.

P. 55(b)(2),” which establishes the procedure by which judgment

by default may be entered, there was nothing to indicate the

upcoming     hearing    pertained      to     a    default     judgment   against

Hartford.      Although    in    receipt      of   York’s    packet,   Hartford’s

adjuster failed to recognize the significance of the notice of

hearing, and Hartford failed to appear.



                                         5
            On August 6, the state court entered default judgment

against Hartford for over $4 million, for wrongful death damages

less the $100,000 paid by Miller’s insurer.                    The court then

dismissed the Millers as parties and granted York permission to

amend its complaint to file additional claims against Hartford.

             On   September      24,    2012,    Hartford     received    York’s

amended complaint, which sought damages for extra-contractual,

common law bad-faith claim handling, and statutory unfair trade

practices claims.       On October 12, Hartford removed the case on

the basis of diversity jurisdiction.

            In federal Court, York moved to remand, alleging that

Hartford’s removal was untimely, and Hartford moved to vacate

the state court’s default judgment.                In a memorandum opinion

addressing    both    motions,    the    court     denied   York’s     motion    to

remand and granted Hartford’s motion to vacate.                The court first

explained that Hartford’s removal was timely, as it occurred

within thirty days of the date Hartford first received notice

that the case was removable -- namely, when Hartford received

York’s amended complaint.         The court then held that relief from

the state court’s judgment was proper because Hartford’s default

was   the   product   of   excusable     neglect    (the    clerical    error    in

misfiling)    and     Hartford    had    a   meritorious      defense    to     the

underlying claim (that the damages exceeded the amount demanded

in the complaint).

                                        6
            York then amended her complaint a second time, re-

asserting the UIM claim.           Shortly thereafter, however, York and

Hartford settled this claim for the $100,000 policy limit.

            After discovery, Hartford moved for summary judgment

on York’s remaining claims.             In a memorandum opinion addressing

the    motion,    the    court   held    that    under   either    the   lex   loci

delicti choice of law test or the Second Restatement’s “Most

Significant Relationship” test, Kentucky law applied.                    The court

then    noted     that   Kentucky       law    imposes   a     particularly    high

evidentiary threshold for common law bad-faith claims against

insurers, and granted summary judgment to Hartford because York

had failed to make the requisite showing.                York now appeals.



                                         II.

            The standard of review on a motion to remand is de

novo.     Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th

Cir. 2004) (en banc).            The burden of establishing jurisdiction

rests with the party seeking removal, and removal jurisdiction

is     strictly    construed;      thus,       “if   federal    jurisdiction    is

doubtful, a remand to state court is necessary.”                      Id. at 816

(internal alterations omitted).

            A notice of removal must be filed within thirty days

“after receipt by the defendant, through service or otherwise,

of a copy of an amended pleading, motion, order or other paper

                                           7
from which it may first be ascertained that the case is one

which    is    or    has    become   removable.”           28    U.S.C.     § 1446(b)(3)

(2012).       This     thirty-day     clock     does     not     begin    to       run    until

“receipt by the defendant” of some indicia of removability.                                See

Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir.

1997) (“[O]nly where an initial pleading reveals a ground for

removal will the defendant be bound to file a notice of removal

within 30 days.”).

              In     this   case,    Hartford      did    not    receive       a    “motion,

order or other paper” from which it could have “ascertained”

that the case was removable until September 24, when it received

York’s amended complaint.

              York contends that the state court’s oral dismissal of

the     Millers       was    sufficient       to    constitute           notice.           Cf.

Yarnevic v. Brink’s, Inc., 102 F.3d 753, 755 (4th Cir. 1996)

(noting       that     1446(b)’s      “‘motion,          order    or      other          paper’

requirement is broad enough to include any information received

by the defendant, whether communicated in a formal or informal

manner” (internal quotation omitted)).                      But Hartford was not

present at that hearing and therefore could not have received

such notice,         as is required to start the clock under § 1446(b).

We thus conclude that the district court properly denied York’s

motion to remand.



                                          8
                                           III.

            We review for abuse of discretion an order vacating a

default judgment under Fed. R. Civ. P. 60(b).                         MLC Auto., LLC v.

Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008).                         Rule 60(b)

is to be “liberally construed in order to provide relief from

the   onerous     consequences      of     defaults       and    default    judgments.”

Tolson v.       Hodge,      411     F.2d       123,     130      (4th     Cir.    1969).

Accordingly,       “[a]ny    doubts        about      whether     relief     should     be

granted should be resolved in favor of setting aside the default

so that the case may be heard on the merits.”                     Id.

            To obtain relief from a default judgment under Rule

60(b), Hartford must demonstrate that (1) it defaulted for a

reason valid under Rule 60(b)(1)-(5), (2) it timely moved to set

aside   the      judgment,    (3)    relief        will    not    result     in   unfair

prejudice to York, and (4) it has a meritorious defense to the

underlying action.           See Augusta Fiberglass Coatings, Inc. v.

Fodor Contracting Corp., 843 F.2d 808, 811-12 (4th Cir. 1988)

(per curiam).

            We    have   reviewed        the    record     and    conclude    that    the

district court did not abuse its discretion in granting Hartford

relief from the state court judgment.                   Hartford timely filed for

relief, York suffered no unfair prejudice, the default was the

product   of     an   excusable     clerical       error,       and    Hartford   has    a

meritorious defense -- namely, that the state court’s judgment

                                            9
was greater than the amount York demanded in her complaint and

thus, in violation of W. Va. R. Civ. P. 54(c).                           We thus conclude

the district court properly granted Hartford’s motion to vacate

the state court judgment.



                                              IV.

                We   review     the     district          court’s    grant       of     summary

judgment de novo, drawing reasonable inferences in the light

most favorable to the non-moving party.                           Dulaney v. Packaging

Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012).                           A moving party

is entitled to summary judgment if the evidence shows no genuine

issue      of   material      fact     and    that    such       party   is     entitled      to

judgment as a matter of law.                    Fed. R. Civ. P. 56(a).                    “Only

disputes over facts that might affect the outcome of the suit

under   the      governing      law    will    properly       preclude         the    entry   of

summary judgment.”              Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).           To withstand a motion for summary judgment,

the   non-moving       party      must       produce       competent      evidence       of   a

genuine     issue     of   material      fact       for    trial.        See    Thompson      v.

Potomac     Elec.     Power     Co.,    312    F.3d       645,    649    (4th    Cir.     2002)

(“Conclusory or speculative allegations do not suffice, nor does

a   mere    scintilla      of    evidence       in    support       of   [the        non-moving

party’s] case.” (internal quotation marks omitted)).



                                              10
            Where       federal       jurisdiction        depends      on    diversity      of

citizenship,       as   it     does    here,       “the   applicable         law    must    be

determined    by    the      choice     of   law    rules    of     the     forum    state.”

Brendle v. General Tire & Rubber Co., 408 F.2d 116, 116 (4th

Cir. 1969) (citing Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487

(1941)).    Thus, West Virginia’s choice of law rules apply here.

            York’s claims sound in tort.                     See Noland v. Virginia

Ins. Reciprocal, 686 S.E.2d 23, 33-34 (W. Va. 2009) (holding

that   both    statutory        claims       for    unfair    insurance        settlement

practices and common law claims for bad faith claims handling

are torts).        Therein, “West Virginia traditionally applies the

lex loci delicti approach . . . but has in certain circumstances

shown a willingness to apply the Restatement approach to resolve

particularly thorny conflicts problems.”                     Kenney v. Indep. Order

of   Foresters,     744      F.3d     901,    907    (4th     Cir.     2014)       (internal

quotation marks omitted).              We “need not determine which approach

West Virginia courts would apply here,” id. at 907-08, because,

having    reviewed       the    relevant       authority,         we   agree       with    the

district   court’s        conclusion         that    Kentucky      law      applies       under

either approach.

            Because Kentucky law applies, York has no cause of

action under the WVUTPA, and the district court properly granted

summary    judgment       to    Hartford       on     that    claim.          For     York’s

remaining common law bad-faith claim, Kentucky law requires York

                                             11
to prove that Hartford (1) is “obligated to pay the claim under

the terms of the policy”; (2) lacked “a reasonable basis in law

or fact for denying the claim”; and (3) “either knew there was

no reasonable basis for denying the claim or acted with reckless

disregard for whether such a basis existed.”                  Wittmer v. Jones,

864 S.W.2d 885, 890 (Ky. 1993) (citation omitted).                       Altogether,

York must show that Hartford’s conduct was “outrageous, because

of an evil motive or reckless indifference to his rights. . . .

[M]ere delay in payment does not amount to outrageous conduct

absent     some    affirmative     act    of    harassment          or   deception.”

Motorists    Mut.   Ins.    Co.   v.   Glass,    996   S.W.2d       437,    452   (Ky.

1997).

            We have reviewed the record and conclude that York has

not shown the requisite bad faith.              The district court therefore

properly granted Hartford’s motion for summary judgment.



                                         V.

             For    the    foregoing     reasons,      the    judgment       of    the

district    court   is    affirmed.      We    dispense      with    oral   argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.


                                                                            AFFIRMED


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