United States District Court, W.D. Washington, Tacoma
DAVID C THEM and KATHLEEN A. THEM, husband and wife, Plaintiffs,
MANHATTANLIFE ASSURANCE COMPANY OF AMERICA, a foreign insurance company, Defendant.
B. LEIGHTON UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiffs David and Kathleen
Them's Motion to Remand. Dkt # 9. Them purchased a
supplemental health insurance policy from Defendant ManhattanLife
Assurance Company. She was injured and had surgery and made a
claim under her policy. ManhattanLife denied her claim
because her injury, it claimed, was the result of an excluded
pre-existing condition. ManhattanLife refused to pay any
portion of Them's $66, 000 surgery bill. Dkt # 10-1, ex.
December 2018 Them sued ManattanLife in Clark County Superior
Court, alleging breach of contract and bad faith in its
handling of her claim, and seeking the benefits owed to her
under her policy. In March 2019, Them's counsel sent
ManattanLife a letter memorializing the parties'
conversation about what type of benefits under the policy
would apply to the surgery bill. Them's counsel agreed to
“look into the applicability of a $3, 000 cap on
‘ambulatory' benefits, versus $65, 000 surgery (and
other) bills.” Dkt # 10-1, ex. C. ManhattanLife argues
that this letter is no objective evidence that Them's
claim exceeded the jurisdictional threshold.
October 2019 Them produced her first set of discovery
responses. Her responses did not articulate a specific dollar
amount of damages, but did reference a claim for payment of
all her medical bills. ManhattanLife contends that this was
the first indication it had that Them sought more than the
limited benefits even possibly covered by the Policy.
ManhattanLife removed the case to this Court less than 30
seeks remand, arguing that ManhattanLife's removal was
untimely. She claims it had already received notice through
“other papers” that the amount in controversy
requirement was met, before she answered the discovery. She
argues that both her March 2019 letter, and
ManhattanLife's own, earlier Explanation of Benefits made
it clear that she was seeking coverage for her entire $65,
000 surgery bill.
argues that it was put on notice that the amount in
controversy exceeded the jurisdictional threshold only after
receiving Them's interrogatory responses in October 2019.
It argues that until its receipt of that discovery, it did
not have any basis for concluding that the claim exceeded the
jurisdictional threshold, and that these “other
papers” opened a second 30-day removal window. It
argues that until that point it reasonably believed Them was
seeking only to recover the benefits owed to her under her
policy if the exclusion did not apply-roughly $5, 000.
may remove any action filed in state court over which federal
district courts have original jurisdiction. 28 U.S.C. §
1441(a). The removal statute is strictly construed against
removal jurisdiction. Conrad Associates v. Hartford
Accident & Indemnity Co., 994 F.Supp. 1196, 1198
(N.D. Cal. 1998). The party asserting federal jurisdiction
has the burden of proof on a motion to remand to state court.
Id. It is obligated to do so by a preponderance of
the evidence. Id. at 1199. Federal jurisdiction must
be rejected if there is any doubt as to the right of removal
in the first instance. Gaus v. Miles, 980 F.2d 564,
566 (9th Cir. 1992). A case may be remanded to
state court if it was not timely removed. Cleveland v. W.
Ridge Acad., No. 1:14-CV-01825-SKO, 2015 WL 164592, at
*3 (E.D. Cal. Jan. 13, 2015).
28 U.S.C. § 1446(b), a case may be removed under two
different 30-day windows. The first requires a party to file
the notice of removal within thirty days of receipt of the
initial pleading or summons. 28 U.S.C. § 1446(b)(1).
“If no ground for removal is evident in the initial
pleading, the second thirty-day window to remove an action
commences when the defendant receives ‘an amended
pleading, motion, order or other paper' from which it can
be ascertained from the face of the document that removal is
proper.” Cleveland, 2015 WL 164592, at *3
(citing 28 U.S.C. § 1446(b)(3)). The Ninth Circuit has
held that settlement papers qualify as “other
paper” for triggering the second 30-day window. See
Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir.
2002). Discovery responses also qualify as “other
paper.” Grazia v. Safeco Ins. Co. of Illinois,
No. C17-1130-JCC, 2017 WL 4803921, at *2 (W.D. Wash. Oct. 25,
is no dispute that the parties are diverse or that the amount
in controversy exceeds the jurisdictional threshold. The
parties agree that the amount of Them's damages was not
readily ascertainable from her complaint, and therefore that
pleading did not trigger the first thirty-day removal period
under 28 U.S.C. § 1446(b). See Cleveland, 2015
WL 164592, at *4. The Complaint is silent as to the amount of
damages, claiming only “the full benefit of coverage
contained in the policy of insurance.” Dkt # 1-1 ¶
claims that even if Them's claim was not excluded by a
pre-existing condition, its exposure under the terms of the
policy was less than $6000-it is a supplemental, limited
policy; not a primary health insurance policy that may have
paid the entire bill. Even if the amount was trebled it would
not approach the jurisdictional threshold.
argues correctly that Them's March letter did not
disclose that she sought payment of the entire bill.
Them's counsel agreed only to “look into” the
type of benefits owed to Them under the policy.
ManhattanLife's Explanation of Benefits did not (and
could not; it was generated by ManhattanLife) clarify or
disclose that Them sought the full cost of her surgery as
damages, notwithstanding the policy's limits. It
contained only the cost of surgery and the exclusion
ManhattanLife applied to deny any benefits. Neither document
provided ManhattanLife with the objective information as to
the amount Them sought.
argues that the case was not removable until it received
Them's discovery responses, on October 10, 2019.
Them's responses indicated that she was seeking the full
amount of all medical bills not paid by ManhattanLife,
regardless of if those benefits would have been owed under
the policy. Dkt # 2-7 at 12-13. As a result,
ManhattanLife's Notice of Removal on November 1, 2019 was