United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO REMAND
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion to
remand (Dkt. No. 8). Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motion
for the reasons explained herein.
November 17, 2013, Plaintiff Anthony Grazia was in a car
accident resulting in significant injuries. (Dkt. Nos. 1 at
11, 5-9.) He brought suit against the negligent driver,
Vallen Brewer, in a prior action, which resolved for
Brewer's insurance limit. (Dkt. No. 9-3 at 3.) Plaintiff
then filed a claim for underinsured motorist benefits with
his insurer, Safeco. In November 2016, Plaintiff filed a
complaint in King County Superior Court against Safeco
disputing the company's handling of his claim and
asserting that it acted in bad faith. (Dkt. No. 12.) On July
26, 2017, Safeco removed the case to federal court on the
basis of diversity jurisdiction. (Dkt. No. 1 at 4.) Safeco
states it was first put on notice that the amount in
controversy was sufficient for federal jurisdiction by
Plaintiff's June 27, 2017 settlement demand letter. (Dkt.
No. 1 at 6, 20.) Plaintiff disputes this assertion, claiming
Safeco had notice that the amount in controversy exceeded
statutory requirements for removal more than 30 days prior to
removal, and thus removal was not timely under 28 U.S.C.
§ 1446(b). (Dkt. No. 8 at 4.) Plaintiff now moves to
remand to state court and for an award of attorney fees on
the basis that removal was not “fairly
supportable.” (Dkt. No. 8.)
to a civil action brought in state court may remove that
action to federal court if the district court would have had
original jurisdiction at the time the action was commenced
and removed. See 28 U.S.C. § 1441(a); 14B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3723 (4th ed. 2013). Where
a case is not removable as initially pled, it may still be
removed “within 30 days after receipt by the defendant,
through service or otherwise of a copy of an amended
pleading, motion, order, or other paper 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).
removed, a case can be remanded to state court for defects in
the removal procedure or lack of subject matter jurisdiction.
See 28 U.S.C. § 1447(c). There is a
“strong presumption” against removal, and federal
jurisdiction “must be rejected if there is any doubt as
to the right of removal in the first instance.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
Defendant's Notice of Removal was Untimely
party challenges the federal court's subject matter
jurisdiction. Rather, the Court finds that removal was
untimely. The thirty-day clock for removal started upon
Defendant's March 31, 2017 receipt of Plaintiff's
interrogatory answers, but the case was not removed until
July 26, 2017. (See Dkt. Nos. 8 at 5, 1 at 4.)
Coupled with information already in Defendant's
possession, this “other paper” was sufficient for
Defendant to ascertain that the amount in controversy would
exceed the jurisdictional requirement for removal.
interrogatory answers constitute “other paper”
within the meaning of section 1446(b)(3). See 28
U.S.C. § 1446(b)(3). Courts have held that “other
paper” refers to notice in writing and does not have to
be a formal court filing. Stramel v. GE Capital Small
Business Finance Corp., 955 F.Supp. 65, 67-68 (E.D. Tex.
1997) (“actual notice may be communicated in a formal
or informal manner”); see also Rynearson v. Motor
City, Inc., 626 F.Supp.2d 1093, 1097 (W.D. Wash. 2009).
From this “other paper, ” Defendant could
ascertain that the case was removable. Defendant argues that
under the standard established in Harris v. Bankers Life
and Casualty Company, Plaintiff's claims were not
clearly removable on the face of interrogatory answers. 425
F.3d 689 (9th Cir. 2005). However, this Court joins other
courts in this district in declining to extend
Harris, a case involving a defendant's
subjective knowledge and duty to investigate diversity of
citizenship, to a case regarding amount in controversy, where
“a defendant in the exercise of diligence could readily
ascertain, on the basis of information within its . . .
possession, that the amount in controversy exceeds the
jurisdictional minimum.” See Banta v. American
Medical Response Inc., No. 11-3586, slip op. at 2 (C.D.
Ca. July 15, 2011).
had information in its possession that gave it reason to know
that the amount in controversy would be over $75, 000. First,
Plaintiff's interrogatory responses informed Defendant
that he would claim damages arising from “continued
symptoms of brain injury, ” prior and continued medical
treatment, and past and future wage loss of a six-figure
annual income. (Dkt. Nos. 9-5 at 2-3, 8 at 6, 12 at 2.)
Although Plaintiff's medical bills and future loss of
earnings estimate had “not yet been itemized” or
“finalized, ” his responses indicate significant,
long-term damages. (See Dkt. Nos. 10 at 2, 9-5 at 2
- 3.) Additionally, Plaintiff's complaint indicates he is
claiming damages for past and future medical expenses, pain
and suffering damages, and lost wages and earning capacity.
(Dkt. No. 1-1 at 2.) This court finds it difficult to believe
that upon receipt of Plaintiff's interrogatory responses,
Safeco, a sophisticated insurance company, “believed
the amount of damages sought was less than $75, 000.”
See Bush v. Winn Dixie Montgomery, LLC, 132
F.Supp.3d 1317, 1318 (N.D. Ala. 2015) (holding that the
nature of damages alleged was sufficient to put defendant on
notice of the amount in controversy without a numeric claim
Defendant Had an Objectively Reasonable Basis for
case is remanded, attorney fees and costs are recoverable
pursuant to 28 U.S.C. § 1447(c) only if the removing
party “lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capitol
Corp., 546 U.S. 132, 141 (2005). Although the Court
finds Defendant's removal untimely, ...