Grazia v. Safeco Insurance Company of Illinois

Filing 13

ORDER ON MOTION TO REMAND re Plaintiff's 8 MOTION to Remand Case to State Court. Plaintiff's motion for remand is GRANTED and motion for attorney fees and costs is DENIED (Dkt. No. 8). Per LCR 3(h), case will be remanded 14 days from the date of this Order, on 11/8/2017. Signed by U.S. District Judge John C Coughenour. (TH)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 ANTHONY GRAZIA, 10 Plaintiff, v. 11 CASE NO. C17-1130-JCC ORDER ON MOTION TO REMAND SAFECO INSURANCE COMPANY OF ILLINOIS, a foreign corporation, 12 13 Defendant. 14 15 This matter comes before the Court on Plaintiff’s motion to remand (Dkt. No. 8). Having 16 17 18 19 20 21 22 23 24 25 26 thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein. I. BACKGROUND On November 17, 2013, Plaintiff Anthony Grazia was in a car accident resulting in significant injuries. (Dkt. Nos. 1 at 11, 5–9.) He brought suit against the negligent driver, Vallen Brewer, in a prior action, which resolved for Brewer’s insurance limit. (Dkt. No. 9-3 at 3.) Plaintiff then filed a claim for underinsured motorist benefits with his insurer, Safeco. In November 2016, Plaintiff filed a complaint in King County Superior Court against Safeco disputing the company’s handling of his claim and asserting that it acted in bad faith. (Dkt. No. 12.) On July 26, 2017, Safeco removed the case to federal court on the basis of diversity ORDER ON MOTION TO REMAND C17-1130-JCC PAGE - 1 1 jurisdiction. (Dkt. No. 1 at 4.) Safeco states it was first put on notice that the amount in 2 controversy was sufficient for federal jurisdiction by Plaintiff’s June 27, 2017 settlement demand 3 letter. (Dkt. No. 1 at 6, 20.) Plaintiff disputes this assertion, claiming Safeco had notice that the 4 amount in controversy exceeded statutory requirements for removal more than 30 days prior to 5 removal, and thus removal was not timely under 28 U.S.C. § 1446(b). (Dkt. No. 8 at 4.) Plaintiff 6 now moves to remand to state court and for an award of attorney fees on the basis that removal 7 was not “fairly supportable.” (Dkt. No. 8.) 8 II. 9 10 DISCUSSION A. Legal Standard A party to a civil action brought in state court may remove that action to federal court if 11 the district court would have had original jurisdiction at the time the action was commenced and 12 removed. See 28 U.S.C. § 1441(a); 14B Charles Alan Wright & Arthur R. Miller, Federal 13 Practice and Procedure § 3723 (4th ed. 2013). Where a case is not removable as initially pled, it 14 may still be removed “within 30 days after receipt by the defendant, through service or otherwise 15 of a copy of an amended pleading, motion, order, or other paper from which it may first be 16 ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). 17 Once removed, a case can be remanded to state court for defects in the removal procedure 18 or lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). There is a “strong presumption” 19 against removal, and federal jurisdiction “must be rejected if there is any doubt as to the right of 20 removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 21 22 B. Defendant’s Notice of Removal was Untimely Neither party challenges the federal court’s subject matter jurisdiction. Rather, the Court 23 finds that removal was untimely. The thirty-day clock for removal started upon Defendant’s 24 March 31, 2017 receipt of Plaintiff’s interrogatory answers, but the case was not removed until 25 July 26, 2017. (See Dkt. Nos. 8 at 5, 1 at 4.) Coupled with information already in Defendant’s 26 possession, this “other paper” was sufficient for Defendant to ascertain that the amount in ORDER ON MOTION TO REMAND C17-1130-JCC PAGE - 2 1 controversy would exceed the jurisdictional requirement for removal. 2 Plaintiff’s interrogatory answers constitute “other paper” within the meaning of section 3 1446(b)(3). See 28 U.S.C. § 1446(b)(3). Courts have held that “other paper” refers to notice in 4 writing and does not have to be a formal court filing. Stramel v. GE Capital Small Business 5 Finance Corp., 955 F. Supp. 65, 67–68 (E.D. Tex. 1997) (“actual notice may be communicated 6 in a formal or informal manner”); see also Rynearson v. Motor City, Inc., 626 F. Supp. 2d 1093, 7 1097 (W.D. Wash. 2009). From this “other paper,” Defendant could ascertain that the case was 8 removable. Defendant argues that under the standard established in Harris v. Bankers Life and 9 Casualty Company, Plaintiff’s claims were not clearly removable on the face of interrogatory 10 answers. 425 F. 3d 689 (9th Cir. 2005). However, this Court joins other courts in this district in 11 declining to extend Harris, a case involving a defendant’s subjective knowledge and duty to 12 investigate diversity of citizenship, to a case regarding amount in controversy, where “a 13 defendant in the exercise of diligence could readily ascertain, on the basis of information within 14 its . . . possession, that the amount in controversy exceeds the jurisdictional minimum.” See 15 Banta v. American Medical Response Inc., No. 11-3586, slip op. at 2 (C.D. Ca. July 15, 2011). 16 Defendant had information in its possession that gave it reason to know that the amount 17 in controversy would be over $75,000. First, Plaintiff’s interrogatory responses informed 18 Defendant that he would claim damages arising from “continued symptoms of brain injury,” 19 prior and continued medical treatment, and past and future wage loss of a six-figure annual 20 income. (Dkt. Nos. 9-5 at 2–3, 8 at 6, 12 at 2.) Although Plaintiff’s medical bills and future loss 21 of earnings estimate had “not yet been itemized” or “finalized,” his responses indicate 22 significant, long-term damages. (See Dkt. Nos. 10 at 2, 9-5 at 2 – 3.) Additionally, Plaintiff’s 23 complaint indicates he is claiming damages for past and future medical expenses, pain and 24 suffering damages, and lost wages and earning capacity. (Dkt. No. 1-1 at 2.) This court finds it 25 difficult to believe that upon receipt of Plaintiff’s interrogatory responses, Safeco, a sophisticated 26 insurance company, “believed the amount of damages sought was less than $75,000.” See Bush ORDER ON MOTION TO REMAND C17-1130-JCC PAGE - 3 1 v. Winn Dixie Montgomery, LLC, 132 F. Supp. 3d 1317, 1318 (N.D. Ala. 2015) (holding that the 2 nature of damages alleged was sufficient to put defendant on notice of the amount in controversy 3 without a numeric claim of damages). 4 5 C. Defendant Had an Objectively Reasonable Basis for Removal If a case is remanded, attorney fees and costs are recoverable pursuant to 28 U.S.C. § 1447(c) 6 only if the removing party “lacked an objectively reasonable basis for seeking removal.” Martin 7 v. Franklin Capitol Corp., 546 U.S. 132, 141 (2005). Although the Court finds Defendant’s 8 removal untimely, it was not so objectively unreasonable as to merit an award of attorney fees 9 and costs. 10 11 12 13 III. CONCLUSION For the foregoing reasons, Plaintiff’s motion for remand is GRANTED and motion for attorney fees and costs is DENIED (Dkt. No. 8). DATED this 25th day of October 2017. A 14 15 16 John C. Coughenour UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 ORDER ON MOTION TO REMAND C17-1130-JCC PAGE - 4

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