United States District Court, W.D. Washington
HAROLD L. HUTCHINSON, JR., Plaintiff,
GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
ORDER OF REMAND
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
4, 2018, Defendant filed Notices of Removal in both federal
and state court. Id. at ¶ 10 and Ex. F thereto.
The instant motion followed.
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
Time for Removal
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.
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 ...