United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS TO REMAND AND TO CERTIFY QUESTIONS
[Dkt. #s 10 and 11]
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Plaintiff Anderson's Motions to Remand [Dkt. #10] and to Certify Questions to the Washington Supreme Court [Dkt. #11]. This is, by State Farm's count, the ninth  lawsuit Anderson has filed in attempt to recover damages from a 1998 one vehicle rollover accident. The facts and procedural history have been outlined in many prior orders in many prior cases. Anderson's Motion to Remand asks the Court to remand the case as untimely removed, and asks it to abstain from hearing the case under the Wilton-Brillhart doctrine and the Rooker Feldman Doctrine. Anderson also asks the Court to certify to the Supreme Court two questions related to his IFCA claims, which he claims are dispositive, open questions under Washington law.
Motion to Remand
Under 28 U.S.C. § 1441(a), a "civil action brought in a State court" may be removed to a district court of the United States if the district court of the United States has original jurisdiction. A defendant must file a notice of removal within thirty days of the defendant's receipt of the initial complaint. 28 U.S.C. § 1446(b).
Anderson correctly argues that State Farm has the burden to prove that removal was proper and that this court has diversity jurisdiction over the case. Under Conrad Associates v. Hartford Accident & Indemnity Co., 994 F.Supp. 1196 (N.D. Cal. 1998), and numerous other authorities, the party asserting federal jurisdiction has the burden of proof on a motion to remand to state court. The removal statute is strictly construed against removal jurisdiction. The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing removal is proper. Conrad, 994 F.Supp. at 1198. It is obligated to do so by a preponderance of the evidence. Id. at 1199; see also Gaus v. Miles, 980 F.2d 564, 567 (9th Cir. 1992). Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. Id. at 566. But this burden is not overly difficult to meet; cases are properly removed to federal court all of the time.
Anderson's Motion to Remand argues primarily that State Farm's removal (on the basis of diversity jurisdiction) was not timely: he served the complaint on Washington's Office of Insurance Commissioner more than 30 days before State Farm filed its Notice or Removal.
State Farm argues that the removal window opens when a defendant insurer actually receives the complaint, not when it is served on the state:
The removal period begins running not on service with the OIC, but rather, when the insurer "actually received the summons and complaint." Ebert v. Travelers Ins. Co., Case No. C13-1268-JLR, 2013 WL 4827854 (W.D. Wash. Sept. 10, 2013).
In fact, the "overwhelming majority of district courts... hold that... where a statutory agent is served with the summons and complaint, the named defendant's time to remove the action is not triggered until the defendant actually receives the pleading." Burton, 431 F.Supp.2d at 654; Pilot Trading Co. v. Hartford Ins. Group, 946 F.Supp. 834, 839 (D. Nev. 1996) (same); Medina v. Wall-Mart Stores, 945 F.Supp., 519, 520 (W.D.N.Y. 1996) ("the heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent").
[Dkt. #17 at 9-10]
Anderson's Motion and his Reply argue that 28 U.S.C. §1446(b)'s use of the term "receipt" includes all forms of receipt, including "constructive" receipt. He argues that the dispositive authority on the subject is Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), which he claims holds that service, and not receipt triggers the removal period. But Murphy dealt with the effect of a pre -service, faxed "courtesy copy" of a complaint. It did not even purport to address the situation here, where the complaint was served on the state before it was received by the defendant. Instead, Murphy held that a pre-service courtesy copy did not trigger the 30 day removal period-based in part on Congress' stated intent to "ensure that defendant would have access to the complaint before commencement of the removal period." Id. at 352.
Anderson's service on the state does not constitute "receipt" of the complaint by State Farm. The removal period was triggered instead when State Farm actually received the complaint, and the removal was ...