United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION TO REMAND TO STATE
J. BRYAN United States District Judge
MATTER comes before the Court on Plaintiff's Motion to
Remand to State Court. Dkt. 8. The Court has considered the
motion, Defendant's Response (Dkt. 9), Plaintiff's
Reply (Dkt. 11), and the remainder of the file herein.
seeks remand of this case, which was removed on diversity
jurisdiction grounds. Plaintiff argues that Defendant has
failed to meet procedural requirements for timeliness of
removal and that the amount in controversy threshold has not
been met. Dkt. 8 at 1. The parties do not dispute diversity
of citizenship. Plaintiff also seeks an award of cost and
filed the case in Thurston County Superior Court on February
20, 2018. A date stamp of March 9, 2018, 2pm on the Complaint
details the timeframe of “ACCEPTED SOP” by the
Washington Insurance Commissioner. Dkt. 1 at 9. The Notice of
Service of Process, a document generated by Corporation
Service Company (CSC), Defendant's service of process
agent, affirms the March 9, 2018 date of
“original” service of process on the
Commissioner. Dkt. 10 at 7. The Notice of Service of Process
also notes an additional date, March 19, 2018, as the
“Date Served on CSC, ” when CSC received service
“via certified mail” on Defendant's behalf.
Id. at 1, ¶2; Id. at 7. “20
days” is noted as the “Answer or Appearance
Date” on the Notice of Service of Process. Defendant
removed the case to federal court on April 18, 2018. Dkt. 1
is an insurance agency incorporated under the laws of the
State of Texas, with its principal place of business in
Illinois. Dkt. 1 at 3.
U.S.C. § 1446 governs the procedure for the removal of
civil actions. By statute, a “notice of removal of a
civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(b)(1).
parties agree that the case was removed on April 18, 2018,
but they disagree as to whether the 30 day clock should run
from service of process on the Commissioner, on March 9,
2018, or on CSC, on March 19, 2018. If service of process
runs from the former, removal was untimely.
this issue turns on the sufficiency of the service of
process. “The sufficiency of service of process prior
to removal is strictly a state law issue.” Lee v.
City of Beaumont, 12 F.3d 933, 937 (9th Cir. 1993),
overruled on other grounds by Cal. Dep't of Water
Resources v. Powerex Corp., 533 F.3d 1087 (9th Cir.
2008). Under Washington law:
Each authorized foreign or alien insurer must
appoint the commissioner as its attorney to receive service
of, and upon whom must be served, all legal process issued
against it in this state upon causes of action arising within
this state. Service upon the commissioner as attorney
constitutes service upon the insurer. Service of legal
process against the insurer can be had only by
service upon the commissioner, except actions upon contractor
bonds pursuant to RCW 18.27.040, where service may be upon
the department of labor and industries.
RCW 48.050.200(1) (emphasis added).
Washington law, Defendant is undisputedly a foreign insurer,
so RCW 48.050.200(1) applies. By statute, service of process
“must” be on the Commissioner, which in this
case, was on March 9, 2018. The 30 day clock ran from March
9, 2018 and thus elapsed prior to removal on April 18, 2018.
anticipating this result, Defendant points to the general
“receipt” language in § 1446(b)(1)
(“30 days after the receipt by the defendant,
by service or otherwise”), arguing that Defendant
“received” service of process on March 19, 2018
via certified mail. Dkt. 9 at 3, 4, citing to Dkt. 10 at 7.
This argument ignores recent on-point Washington precedent,
which controls. The Washington State Supreme Court answered,
in the affirmative, the following certified question:
Do RCW 4.28.080(7)(a), RCW 48.02.200, and RCW 48.05.200
establish service through the Washington State Insurance
Commissioner as a uniform and exclusive means of
service for authorized ...