Wright v. American National Property And Casualty Company
Filing
11
ORDER denying 8 Motion to Remand as set forth herein. Signed by Honorable Timothy D. DeGiusti on 05/06/2016. (jb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
STACEY WRIGHT,
Plaintiff,
v.
AMERICAN NATIONAL
PROPERTY AND CASUALTY
COMPANY, a foreign corporation,
Defendant.
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Case No. CIV-16-149-D
ORDER
Before the Court is Plaintiff’s Motion to Remand [Doc. No. 8], to which
Defendant has filed its response in opposition [Doc. No. 9]. The matter is fully briefed
and at issue.
I.
BACKGROUND
Plaintiff was involved in a traffic accident with Zachary Wilson in which she
suffered bodily injuries and damage to her vehicle. She submitted claims to both her
insurer, Defendant American National Property and Casualty Company (ANPAC),
and Wilson’s insurer to recoup losses stemming from the accident. After settlement
talks proved unfruitful, Plaintiff filed suit in Caddo County District Court against
Wilson, his business, Zachary Wilson Welding (collectively “the Wilson
Defendants”), and Defendant under theories of negligence, respondeat superior,
breach of contract, and bad faith. According to the Petition, Plaintiff and the Wilson
Defendants are Oklahoma residents/companies and ANPAC is a Missouri corporation.
After Plaintiff’s action was filed, the Wilson Defendants filed an Offer to
Confess Judgment in the amount of $69,972.00. Plaintiff accepted the offer, filed a
Notice of Acceptance, and subsequently received and cashed the settlement checks.
Pursuant to 12 OKLA. STAT. § 1101, after an offer of judgment has been accepted,
“judgment shall be entered accordingly.” Id. However, prior to the state court’s entry
of judgment, ANPAC removed the action to this Court on the basis of diversity
jurisdiction, alleging Plaintiff’s acceptance constituted a voluntary act to discontinue
her action again the Wilson Defendants (the non-diverse parties), making removal
proper.
Plaintiff contends removal is improper because her claims against the Wilson
Defendants have not been formally dismissed from this action. Consequently, Plaintiff
contends her claims against these defendants are still pending, and, by virtue of
Defendant’s removal to this Court, remain pending since the state court was divested
of jurisdiction prior to entering judgment.1 In addition, Plaintiff contends that
1
It is generally true that removal of a state action to federal court immediately
divests the state court of jurisdiction. See 28 U.S.C. § 1446(d)(noting that after
removal has been effected, “the State court shall proceed no further unless and until
the case is remanded”) (emphasis added). However, despite the statute’s seemingly
(continued...)
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assuming the trial court does enter judgment, removal would remain improper since
the entry of judgment is an action of the court, not a voluntary act by Plaintiff. Lastly,
Plaintiff contends Defendant’s notice is procedurally ineffective since the Wilson
Defendants, assuming they are still parties to this action, did not consent to removal.
II.
STANDARD OF DECISION
A civil action is removable only if a plaintiff could have originally brought the
action in federal court. 28 U.S.C. § 1441(a). Federal courts are courts of limited
jurisdiction; thus, there is a presumption against removal jurisdiction, which the
defendant seeking removal must overcome. Hernandez v. Liberty Ins. Corp., 73 F.
Supp. 3d 1332, 1336 (W.D. Okla. 2014) (Defendant “bears the burden to establish that
its removal of Plaintiff’s case to federal court was proper.”) (citing Huffman v. Saul
Holdings Ltd. P’ship, 194 F.3d 1072, 1079 (10th Cir. 1999)); Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir.1995). The defendant must establish that federal
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sweeping prohibition against further state involvement, federal decisions have held
state courts are not prohibited from taking ministerial steps that do not affect the
adjudication of the removed action. Lawrence v. Chancery Court of Tenn., 188 F.3d
687, 692-93 (6th Cir. 1999) (“Even though there is a dearth of authority interpreting
what “proceed no further” means, we see no reason to believe that Congress intended
for the state courts in removed cases to be forever paralyzed from taking ministerial
steps that do not affect the adjudication of the parties’ dispute.”); see also Pebble
Creek Homes, LLC v. Upstream Images, LLC, 547 F. Supp. 2d 1214, 1218 (D. Utah
2007).
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jurisdiction is proper “by a preponderance of the evidence.” McPhail v. Deere & Co.,
529 F.3d 947, 953 (10th Cir. 2008).
III.
DISCUSSION
Pursuant to 28 U.S.C. § 1446(b)(3), removal of a proceeding shall occur within
thirty days of receipt of the civil action or within thirty days after receipt of the first
pleading or “other paper” from which it can be determined that the action is
removable. Id. The issue here is whether Plaintiff’s Notice of Acceptance of the Offer
to Confess Judgment constitutes an “other paper” for purposes of removal under
§1446(b)(3).
“The ... ‘other paper’ requirement is broad enough to include any information
received by the defendant, ‘whether communicated in a formal or informal manner.’”
Yarnevic v. Brink’s, Inc., 102 F.3d 753, 755 (4th Cir.1996) (citing Broderick v.
Dellasandro, 859 F.Supp. 176, 178 (E.D. Pa.1994));2 see also Fernando Garcia v.
MVT Services, Inc., 589 F. Supp. 2d 797, 803 (W.D. Tex. 2008) (“For a document to
be considered ‘other paper’ under § 1446(b), it ‘must result from the voluntary act of
a plaintiff which gives the defendant notice of the changed circumstances which now
2
“Although . . . removal statutes should be strictly construed against removal,
this principle of construction does not defeat the general principle of statutory
construction that terms used in a statute should be given their plain meaning.” Parson
v. Johnson & Johnson, 749 F.3d 879, 887 (10th Cir. 2014) (citing Miss. ex rel. Hood
v. AU Optronics Corp., __ U.S. __, 134 S.Ct. 736, 744, 187 L.Ed.2d 654 (2014)).
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support federal jurisdiction.’” ) (citation omitted). The defendant must have received
“unequivocal” notice that federal jurisdiction is proper, Huffman v. Saul Holdings Ltd.
P’ship, 194 F.3d 1072, 1078 (10th Cir.1999), because § 1446(b) “requires that for
removal to be proper a case be ‘one which is or has become removable,’ not a case
that most likely will be removable.” Krueger v. Kissinger, 37 F. Supp. 3d 1200, 1203
(D. Colo. 2014) (citing Akin v. Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir.
1998) (emphasis added)).
Pursuant to the “voluntary-involuntary” test, “a cause cannot be removed where
the removability is a result of some development other than a voluntary act of
plaintiff. . . . The cause cannot be removed as a result of evidence from the defendant
or the result of a court order rendered on the merits of the case.” DeBry v.
Transamerica Corp., 601 F.2d 480, 488 (10th Cir. 1979). To this end, “[i]t is quite
well-settled that if the plaintiff voluntarily dismisses, discontinues, or in any way
abandons, the action as to the resident joint defendant, the cause then becomes
removable, and may, upon prompt action, be removed by the nonresident defendants
who have been served.” Foster v. A.H. Robins Co., Inc., 61 F. Supp. 2d 1121, 1123
(D. Haw. 1999) (quoting Heniford v. American Motors Sales Corp., 471 F.Supp. 328,
334 (D.S.C.1979)); see also Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d
1162, 1166 (4th Cir. 1988) (“If the plaintiff voluntarily dismissed the state action
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against the non-diverse defendant, creating complete diversity, the state action may
be removed because there is no risk that diversity will be destroyed later on. The
voluntary act has demonstrated the plaintiff’s desire not to pursue the case against the
non-diverse party.”).
In light of this authority, the Court finds Plaintiff’s motion should be denied.
Plaintiff’s acceptance of the offer of judgment constitutes a voluntary act which gave
ANPAC notice of the changed circumstances creating federal jurisdiction. Regardless
of how Plaintiff’s actions are interpreted, it is clear her acts of accepting the offer to
confess judgment, as well as receiving, negotiating and cashing the settlement checks,
reflects a clear intent to dismiss, discontinue or otherwise abandon her claims against
the Wilson Defendants. The only remaining act is the entry of judgment, which,
according to ANPAC’s response, Plaintiff has not effectuated. Therefore, under the
circumstances presented here, the Court finds Plaintiff’s Notice of Acceptance
constitutes an “other paper” under § 1446(b) and ANPAC’s removal, based on its
receipt of such paper, was proper. The Court declines to address the other grounds
raised in Plaintiff’s motion.
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IV.
CONCLUSION
Plaintiff’s Motion to Remand [Doc. No. 8] is DENIED as set forth herein.
IT IS SO ORDERED this 6th day of May, 2016.
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