Larson v. John Hancock Life Insurance Company (U.S.A.)

Filing 27

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING PLAINTIFFS 9 MOTION FOR REMAND. (ndrS, COURT STAFF) (Filed on 12/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BARBARA LARSON,

Case No. 16-cv-06678-HSG

Plaintiff,
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ORDER GRANTING PLAINTIFF’S
MOTION FOR REMAND

v.
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JOHN HANCOCK LIFE INSURANCE
COMPANY (U.S.A.),

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United States District Court
Northern District of California

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Re: Dkt. No. 9

Defendant.

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This is a class action lawsuit for breach of contract and declaratory relief, filed in Alameda

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County Superior Court on April 29, 2016, and served upon Defendant on May 3, 2016. Dkt. No.

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1-2, Ex. 1 at 6–23 (“Compl.); Dkt. No. 1-3, Ex. 2 (Proof of Service). Defendant John Hancock

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Life Insurance Company (U.S.A.) filed its notice of removal on November 17, 2016. Dkt. No. 1.

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Pending before the Court is Plaintiff Barbara Larson’s motion for remand, filed on November 21,

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2016. Dkt. No. 9. The motion is fully briefed. See Dkt. Nos. 9, 22, 25. The Court finds that this

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matter is appropriate for disposition without oral argument and the matter is deemed submitted.

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See Civil L.R. 7-1(b).

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Remand is required. The Court lacks subject matter jurisdiction under the Securities
Litigation Uniform Standards Act (“SLUSA”), and this case is not removable under 15 U.S.C. §
78bb (2012). On this issue, Freeman Investments, L.P. v. Pac. Life Ins. Co., 704 F.3d 1110 (9th
Cir. 2013), is materially indistinguishable and controlling. See 704 F.3d at 1113, 1115-16, 1118
(posing the question “Does SLUSA displace class actions alleging breach of a variable life
insurance contract?,” and finding that class claims for breach of contract were not precluded by
SLUSA). Defendant’s effort to distinguish Freeman based on a purported distinction between
“breach-from-inception” claims and “later-breach” claims, Opp. at 2, is unsupported by anything
in the reasoning of Freeman. The Court is also unpersuaded by Defendant’s attempt to distinguish

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Freeman by relying upon Pauma Band of Luiseno Mission Indians of Pauma & Yuima

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Reservation v. California, 813 F.3d 1155 (9th Cir. 2015), cert. denied, 136 S. Ct. 2511 (2016), and

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cert. denied sub nom. Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation

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v. California, 136 S. Ct. 2512 (2016). Pauma did not discuss Freeman, did not involve SLUSA or

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variable life insurance, and does not change the Court’s conclusion that Freeman conclusively

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requires remand of this breach of contract case.

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In addition, removal was untimely. Defendant could have reasonably ascertained its now-

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claimed basis for removal from the Complaint that was served on May 3, 2016, but waited until

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November 17, 2016 to file its notice of removal. Defendant thus missed, by far, its 30 day

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United States District Court
Northern District of California

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removal deadline. See 28 U.S.C. § 1446(b)(1) (“The 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 . . . .”); Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.
1980) (“[T]he time limit [of 28 U.S.C. § 1446(b)] is mandatory and a timely objection to a late
petition will defeat removal . . . .”); Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1139
(9th Cir. 2013) (“[T]he ground for removal must be revealed affirmatively in the initial pleading in
order for the first thirty-day clock under § 1446(b) to begin . . . [but] the statute ‘requires a
defendant to apply a reasonable amount of intelligence in ascertaining removability.’” (quoting

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Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001)).
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For the foregoing reasons, the Court GRANTS the motion to remand, and ORDERS this
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case remanded to Alameda County Superior Court.
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IT IS SO ORDERED.
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Dated: 12/7/2016
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______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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