Morella v. Safeco Insurance Company of Illinois
Filing
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ORDER denying pltf's 13 Motion to Remand by Judge Robert S. Lasnik.(RS)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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_______________________________________
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ENZO MORELLA, an individual,
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Plaintiffs,
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v.
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SAFECO INSURANCE COMPANY OF
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ILLINOIS, a foreign corporation,
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Defendant.
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_______________________________________)
No. 2:12-cv-00672 RSL
ORDER DENYING PLAINTIFF’S
MOTION FOR REMAND
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I. Introduction
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This matter comes before the Court on plaintiff’s “Motion to Remand.” Dkt. #13.
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Plaintiff asserts that defendant has not shown that the amount in controversy exceeds $75,000,
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and therefore, has not affirmatively established the Court’s diversity jurisdiction. In an effort to
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meet its burden, the defendant has supplied the Court with a settlement letter from plaintiff that
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estimates damages at $196,542.82 and includes a settlement demand of $115,000. Dkt. #8.
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Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court
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finds as follows:
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II. Standard of Review
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As the party seeking removal, the defendant has the burden of establishing jurisdiction.
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Plaintiff elected not to allege a specific amount in his complaint. When an amount is absent
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from the complaint, the Ninth Circuit has adopted a preponderance of the evidence standard.
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ORDER DENYING PLAINTIFFS’
MOTION FOR REMAND
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Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 397 (9th Cir. 2010).
III. Discussion
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Although defendant chose not to include summary judgment type evidence regarding the
amount in controversy in its notice of removal, it responded to the Court’s order of April 24,
2012, by submitting: 1) the plaintiff’s Insurance Fair Conduct Act (IFCA) complaint and
settlement demand, 2) the letter from defendant requesting that plaintiff advise if he will
stipulate that the amount in controversy is $75,000 or less, and 3) plaintiff’s response that he is
unwilling to stipulate that his damages are $75,000 or less. Dkt. #8. Plaintiff relies on Gaus v.
Miles, Inc., 980 F.2d 564 (9th Cir. 1992), and argues that the Court should remand because
defendant failed to meet its burden in its notice of removal. However, Gaus has been
distinguished by subsequent Ninth Circuit case law, which holds that the post-removal
submission of supporting evidence can be treated as amending the notice of removal. See Cohn
v. Petsmart, Inc., 281 F.3d 837 (9th Cir. 2002) (holding that “the district court did not err in
construing Petsmart’s opposition as an amendment to its notice of removal”). Although the
Court would have preferred if defendant had submitted its supporting evidence with its notice of
removal, the Court would not have issued its order of April 24, 2012, if it did not consider the
submissions relevant to a determination regarding jurisdiction.
Plaintiff also claims that defendant’s response to the Court’s order of April 24, 2012, fails
to prove the jurisdictional facts necessary for removal. The Court disagrees. In the
circumstances presented here, defendant’s burden is to “provide evidence establishing that it is
‘more likely than not’ that the amount in controversy exceeds” the jurisdictional minimum.
Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). Plaintiff’s motion for
remand focuses on defendant’s letter inquiring if plaintiff would be willing to stipulate that his
damages are $75,000 or less. While the Court agrees that a refusal to stipulate, by itself, does
not conclusively establish the amount in controversy, the analysis is further informed by the
amount plaintiff chose for his settlement demand of $115,000, which plaintiff derived from his
ORDER DENYING PLAINTIFFS’
MOTION FOR REMAND
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calculation of damages under IFCA. Dkt. #8.
The settlement demand is relevant evidence that may be considered by the Court. The
Ninth Circuit has specifically “reject(ed) the argument that Fed.R.Evid. 408 prohibits the use of
settlement offers in determining the amount in controversy.” Cohn v. Persmart, 281 F.3d at 843.
In order for a settlement demand to be considered relevant evidence for jurisdictional purposes it
simply needs to “appear to reflect a reasonable estimate of the plaintiff’s claim.” Id. at 840.
The Court finds the proposed settlement demand to be a reasonable estimate. Plaintiff
argues that defendant’s assertion that the amount in controversy exceeds $75,000 is not in good
faith because defendant disagrees with how plaintiff calculated his damages and provides a
counter estimate of $10,542.82. This argument falls short. If plaintiff had chosen to allege an
amount in the claim, the Court would have deferred to his determination as the master of the
claim. The same logic applies to plaintiff’s settlement demand. As was the case in Cohn v.
Petsmart, Inc., plaintiff’s settlement demand is sufficient to affirmatively establish jurisdiction.1
Finally, plaintiff’s argument that the Court should abstain from hearing this case under
Burford v. Sun Oil Co., 319 U.S. 316 (1943), is unpersuasive. According to plaintiff, the
unsettled question under IFCA is what is the meaning of “Actual Damages” that may be trebled
under RCW 48.30.015(2). The Supreme Court of the United States has held that the Burford
doctrine of abstention is usually reserved for courts of equity. Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 116 (1996). In reply, plaintiff argues that abstention is still appropriate “where
exercise of federal review would be disruptive of state efforts to establish a coherent policy.”
Dkt. # 17 at 2. However, plaintiff has not shown that the Court’s review of this case would be
disruptive, and there is no reason to assume such disruption. The Washington State Supreme
Court has held that the meaning of “Actual Damages” can be imported from Washington State
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Even the average of plaintiff’s estimate of $196,542.82 and the defendant’s estimate of
$10,542.82 is well over the amount required to give the Court jurisdiction.
ORDER DENYING PLAINTIFFS’
MOTION FOR REMAND
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case law and that the meaning is consistent with the definition provided by Black’s Law
Dictionary. Martini v. Boeing Co., 137 Wn.2d 357(1999). Furthermore, the Court can certify to
the Washington State Supreme Court any question of Washington State law that has not been
clearly determined pursuant to RCW 2.60.020.
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For all of the foregoing reasons, the Court finds that the defendant has carried its burden of
showing by a preponderance of the evidence that the amount in controversy exceeds $75,000
pursuant to 28 U.S.C.A. § 1332. Plaintiffs’ motion for remand (Dkt. #13) is DENIED.
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Dated this 16th day of July, 2012.
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A
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Robert S. Lasnik
United States District Judge
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ORDER DENYING PLAINTIFFS’
MOTION FOR REMAND
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