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Hutchinson v. Garrison Property and Casualty Insurance Co.

United States District Court, W.D. Washington

June 14, 2018





         This matter comes before the Court on Plaintiff's Motion to Remand this case to Snohomish County Superior Court. Dkt. #10. Plaintiff asserts that Defendant's removal was untimely, and seeks an award of fees related to this motion. Id. Defendant opposes the motion, arguing that the removal was timely, and that there was a reasonable basis for removal even if it is ultimately remanded. Dkt. #12. For the reasons discussed below, the Court agrees that remand is warranted in this action and GRANTS Plaintiff's motion.


         This matter involves an insurance coverage dispute. Dkt. #1. Plaintiff initially served a Summons and Complaint, along with discovery requests, on the Washington State Insurance Commissioner on February 28, 2018. Dkt. #11, Ex. 1. The Office of the Insurance Commissioner subsequently forwarded the Summons and Complaint to Defendant, which was received on March 5, 2018. Dkt. #13 at ¶ 3 and Ex. A. thereto.

         Defendant then attempted to file a Notice of Removal with the Snohomish County Superior Court on or about March 22, 2018. Dkt. #13 at ¶ 4. However, the filing was rejected by the Snohomish County Superior Court on the grounds that the case had not been filed. Id. As a result, defense counsel contacted Plaintiff's counsel, asking that he forward the case number once the Complaint was filed. Dkt. #13, Ex. B. Plaintiff's counsel confirmed that he would do so. Id., Ex. C.

         On April 30, 2018, Plaintiff filed the Summons and Complaint, along with an Amended Complaint, in the Snohomish County Superior Court. Dkt. #13 at ¶ 8 and Ex. E thereto. Defense counsel received notice of the filing on May 2, 2018. Id. at ¶ 9 and Ex. F thereto.

         On May 4, 2018, Defendant filed Notices of Removal in both federal and state court. Id. at ¶ 10 and Ex. F thereto. The instant motion followed.


         A. Legal Standard

         When a case is filed in state court, removal is proper if the Complaint raises a federal question or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a). It is presumed, however, “‘that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.'” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (alterations in original). This Court must order remand if there is any defect which causes federal jurisdiction to fail. 28 U.S.C. § 1447(c). The removal statutes are construed restrictively, and any doubts about removability are resolved in favor of remanding the case to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal was proper by a preponderance of evidence. Id. at 567; Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996). However, this Court lacks discretion to remand a case to the state court if the case was properly removed. Carpenters S. Cal. Admin. Corp. v. Majestic Hous., 743 F.2d 1341, 1343 (9th Cir. 1984), abrogated in part on other grounds, Southern Cal. IBEW-NECA Trust Funds v. Standard Indus. Elec. Co., 247 F.3d 920, 924 n.6 (9th Cir. 2001).

         B. Time for Removal

         In the instant matter, Plaintiff concedes that diversity jurisdiction would lie in this Court, but argues that Defendant's removal was untimely. Dkt. #10 at 2-3. Under 28 USC § 1446(b), “[t]he 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 for the claim for relief upon which such action or proceeding is based, . . .”. Plaintiff asserts that because the Notice of Removal was filed more than 30 days after he served his Summons and Complaint on the Washington Insurance Commissioner, this matter must be remanded to state court. Dkt. #10.

         Defendant, relying on Washington Rule of Civil Procedure 3(a), argues that the initial service is void because Plaintiff did not file his action within 14 days of Defendant's demand that he file the Summons and Complaint in the Superior Court. See CR 3(a) (“Upon written demand by any other party, the plaintiff instituting the action shall pay the filing fee and file the summons and complaint within 14 days after service of the demand or the service shall be void.”). As a result, Defendant asserts that the service date of the Amended Complaint ...

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