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Schiff v. Liberty Mutual Fire Insurance Co.

United States District Court, W.D. Washington, Seattle

October 26, 2017

STAN SCHIFF, M.D. PH.D, Plaintiff,
v.
LIBERTY MUTUAL FIRE INSURANCE CO., et al., Defendant.

          ORDER ON MOTION FOR REMAND

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE

         The above-entitled Court, having received and reviewed:

(1) Plaintiff's Motion for Remand (Dkt. No. 19);
(2) Defendants' Response to Plaintiff's Motion for Remand (Dkt. No. 42);
(3) Reply in Support of Plaintiff's Motion for Remand (Dkt. No. 39); all attached declarations and exhibits; and all relevant portions of the record, rules as follows:

         IT IS ORDERED that the motion is GRANTED. The Court remands this matter to King County Superior Court.

         IT IS FURTHER ORDERED that Plaintiff shall be awarded reasonable attorney fees and costs; said fees and costs to be submitted to the Court no later than 14 days from the entry of this order.

         Background

          This is a class action over reductions Defendants Liberty Mutual Fire Insurance Company and Liberty Mutual Insurance Company (collectively, “Liberty Mutual”) have made to bills from health care providers for services rendered to accident victims covered by personal injury protection policies (“PIP”). Plaintiff alleges Liberty Mutual reduces bills for PIP coverage to the 80th percentile of charges, regardless of whether the reductions are reasonable or not. This lawsuit was filed in state court on May 8, 2017, claiming that this practice violates state law on PIP coverage requiring Liberty Mutual to provide coverage for “all reasonable medical expenses” and also violates the Washington Consumer Protection Act (“CPA”).

         On June 14, 2017, Liberty Mutual removed Plaintiff's case to federal court. Plaintiff seeks a remand to state court.

         Discussion

         A. No federal jurisdiction

         Liberty Mutual did not remove under the Class Action Fairness Act (“CAFA”), which thus requires it to prove to a “legal certainty” that federal jurisdiction exists. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Although Defendant asserts in its removal notice that “federal question” and “diversity” jurisdiction exist (see Dkt. No. 1 at 14-17), it does not respond to Plaintiff's argument or authority that, because the Complaint contains no federal claim, federal jurisdiction does not exist. See Evergreen Sch. Dist. v. N.F., 393 F.Supp.2d 1070 (W.D. Wash. 2005).

         Liberty Mutual instead argues, without citation to authority, that it can manufacture federal question jurisdiction by asserting a future affirmative defense from a settlement in a separate class action to which Plaintiff was not a party. The Court rejects this attempted evasion of CAFA; federal jurisdiction is determined at the time of removal, not by future events. Williams v. Costco Wholesale ...


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