United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion to
remand (Dkt. No. 11). 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.
filed a complaint in King County Superior Court on July 25,
2016, asserting medical and general damages for
a shoulder injury sustained in a slip and fall in a Sam's
Club (Dkt. No. 1-2 at 2, 7). Defendants removed the case to
federal court on March 29, 2018. (Dkt. No. 1.) Defendants
based removal on a March 19, 2018 order from the Superior
Court denying their motion to limit Plaintiff's damages
to $75, 000. (Dkt. No. 1 at 3.) Plaintiff moved to remand.
(Dkt. No. 11 at 2.)
defendant is entitled to remove a lawsuit if the action could
have originally been brought in federal district court.
Grable & Sons Prods., Inc. v. Darue Eng'g &
Mfg., 545 U.S. 308, 312 (2005); 28 U.S.C § 1441(a).
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). Once
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.
Court finds that removal was untimely under 28 U.S.C. section
1446(b)(3). The thirty-day clock for removal started
upon Defendants' February 23, 2018 receipt of an email
from Plaintiff indicating an updated case value. (Dkt. No. 11
at 17-19); see Rollins v. Fresenius USA, Inc., No.
C13-9343-JGB, slip op. at 5 (C.D. Ca. Feb. 4, 2014)
(collecting cases finding an email to be an “other
paper” under section 1446(b)(3)). Coupled with
information already in Defendants' possession, this
“other paper” was sufficient for Defendant to
ascertain that the amount in controversy would exceed the
jurisdictional requirement for removal. Yet Defendants did
not remove until March 29, 2018. (Dkt. No. 1 at 6.)
this email, Defendant had information in its possession that
gave it reason to know that the amount in controversy would
be over $75, 000. Plaintiff's complaint seeks special and
general damages, including, but not limited to medical
expenses, lost wages and earning capacity, and pain and
suffering. (Dkt. No. 1-2 at 7.) Plaintiff's response to
an interrogatory on July 12, 2017 stated that while she had
no loss of wage or income to date, such damages would
“most likely [be] substantial” if she underwent
surgery. (Dkt. No. 11 at 5.) In her September 29, 2017
deposition, Plaintiff indicated that after receiving two
steroid injections, her next step would be surgery if her
injury did not improve. (Dkt. No. 11 at 22.) She also
reaffirmed that she would add a future wage loss claim if she
were to get surgery. (Id. at 24.) In a February 23,
2018 email, Plaintiff's counsel indicated that
Plaintiff's injury had worsened over the past three
years, and that she had decided to pursue surgery and reopen
her Labor & Industry claim. (Dkt. No. 11 at 19.) The
email states the procedure would cost “many tens of
thousands of dollars and require a six-month long period of
recuperation.” Id. It also makes a settlement
offer of $72, 000 and represents that this is a “third
or a quarter of the true value of [Plaintiff's claims]
given that she has chosen to move forward with surgery. From
this email, coupled with prior discovery, Defendant could
have readily ascertained that Plaintiff's claim would
exceed $75, 000.
argue this email was not sufficient to provide such notice.
(Dkt. No. 12 at 10.) But just days after receiving the email,
Defendants moved the state court to limit Plaintiff's
damages at trial to $75, 000. (Dkt. No. 2-2 at 652.) Given
this action, Defendants' assertion that they could not
have possibly ascertained from the February 23rd email that
Plaintiff's claim had risen over $75, 000 is dubious.
Defendants' argue that the state court's denial of
their motion to limit damages was the “first paper
indicating that the matter [was] removable.” (Dkt. No.
1 at 3.) The Court disagrees. A party cannot be permitted to
re-set the clock on removal by moving to limit damages in
state court. Defendants' removal on May 29, 2018 was
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, it was not so
objectively unreasonable as to merit an award of attorney
fees and costs. The Court DENIES Plaintiff's request for
attorney fees and costs.