Topp Creek Farms LLC v. Rural Community Insurance Company

Filing 27

ORDER REMANDING CASE. Case remanded to Yakima County Superior Court County Superior Court. File closed. Signed by Judge Stanley A Bastian. (SK, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jun 11, 2018

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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8 TOPP CREEK FARMS, LLC, a

NO. 1:18-cv-03056-SAB

9 Washington limited liability company,
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Plaintiff,

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ORDER REMANDING CASE

v.

12 RURAL COMMUNITY INSURANCE
13 COMPANY a/k/a RURAL COMMUNITY
14 INSURANCE SERVICES, a foreign
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Defendant.

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Before the Court are Defendant’s Motion to Dismiss and Compel

19 Arbitration, ECF No. 8, Plaintiff’s Motion to Remand, ECF No. 11, and
20 Defendant’s Motion to Amend Caption, ECF No. 19. The motions were heard
21 without oral argument. For the reasons stated herein, Plaintiff’s motion to remand
22 is granted and Defendant’s motions are denied as moot. This case is remanded to
23 the Washington State Superior Court for Yakima County for further proceedings.
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On March 6, 2018, Plaintiff filed a complaint in Yakima County Superior

25 Court seeking damages pursuant to an insurance policy issued by Defendant. ECF
26 No. 4-1. A summons and copy of the complaint were mailed to the State of
27 Washington Office of the Insurance Commissioner (“OIC”) that same day. ECF
28 No. 12-1 at 2. The OIC accepted service of process on March 9, 2018, and issued a
ORDER REMANDING CASE + 1

1 Certificate of Service upon Defendant on March 12, 2018. ECF No. 4-1 at 10. The
2 OIC sent a copy of the certificate to both Plaintiff’s and Defendant’s counsel.
3 Plaintiff’s counsel received the certificate on March 14, 2018, filed a copy in state
4 court, and emailed the same to counsel for Defendant. ECF No. 12. Defendant
5 likewise received the certificate on March 14, 2018. ECF No. 18. Defendant
6 removed this action on April 10, 2018. ECF No. 1.
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An action brought in state court of which the federal courts have original

8 jurisdiction may be removed to the district court of the United States for the district
9 where such action is pending. 28 U.S.C. § 1441(a). 28 U.S.C. § 1446(b)(2)(B)
10 provides that each defendant has thirty days after receipt by or service on that
11 defendant.
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The parties concede that diversity jurisdiction exists and that Defendant filed

13 its notice of removal thirty-one days after service upon the OIC, Defendant’s
14 statutory agent authorized to accept service on its behalf. Defendant is a foreign
15 insurance company. Wash. Rev. Code § 4.28.080(7)(a) provides that service is
16 made on a foreign insurance company as provided in Wash. Rev. Code
17 § 48.05.200. That provision provides that:
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(1) Each authorized foreign or alien insurer must appoint the
commissioner as its attorney to receive service of, and upon whom
must be served, all legal process issued against it in this state upon
causes of action arising within this state. Service upon the
commissioner as attorney constitutes service upon the insurer. Service
of legal process against the insurer can be had only by service upon
the commissioner, except actions upon contractor bonds pursuant to
RCW 18.27.040, where service may be upon the department of labor
and industries.

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(2) With the appointment the insurer must designate by name, email
address, and address the person to whom the commissioner must
forward legal process so served upon him or her. The insurer may
change the person by filing a new designation.

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ORDER REMANDING CASE + 2

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(3) The insurer must keep the designation, address, and email address
filed with the commissioner current.

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(4) The appointment of the commissioner as attorney is irrevocable,
binds any successor in interest or to the assets or liabilities of the
insurer, and remains in effect as long as there is in force in this state
any contract made by the insurer or liabilities or duties arising
therefrom.

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(5) The service of process must be accomplished and processed in the
manner prescribed under RCW 48.02.200.

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9 Wash. Rev. Code § 48.05.200 (emphasis added).
In Costco Wholesale Corporation v. Nationwide Insurance Company, No.
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11 C11-1550RAJ, 2011 WL 13228578 (W.D. Wash. Nov. 29, 2011), the United
12 States District Court for the Western District of Washington held that the removal
13 clock commences when the OIC accepts service of process and forwards a
14 certificate of service to the insurer. Id. at *3. In rebuttal, Defendant cites out-of15 state and out-of-circuit cases for the proposition that other courts hold that service
16 of process is effective only when the defendant actually receives a copy of the
17 complaint. The Court finds Costco Wholesale Corporation applicable in this case.
18 Interpreting Wash. Rev. Code § 48.05.200, the Western District of Washington
19 properly held that “[s]ervice upon the commissioner as attorney constitutes service
20 upon the insurer” for removal purposes. As Defendant concedes, the OIC accepted
21 service on March 9, 2018 and issued a Certificate of Service to Defendant.
22 Defendant did not remove this case until April 10, 2018, thirty-one days after
23 commencement of the removal clock. Accordingly, the Court finds that
24 Defendant’s removal was untimely under Washington law and remands this case to
25 Yakima County Superior Court.
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ORDER REMANDING CASE + 3

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Accordingly, IT IS HEREBY ORDERED:

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1. Defendant’s Motion to Dismiss and Compel Arbitration, ECF No. 8, is

3 DENIED as moot.
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2. Plaintiff’s Motion to Remand, ECF No. 11, is GRANTED.

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3. Defendant’s Motion to Amend Caption, ECF No. 19, is DENIED as

6 moot.
4. The above-captioned case is REMANDED to Yakima County Superior

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8 Court.
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IT IS SO ORDERED. The District Court Executive is hereby directed to

10 file this Order, provide copies to counsel, and close this file.
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DATED this 11th day of June 2018.

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Stanley A. Bastian

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United States District Judge

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ORDER REMANDING CASE + 4