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)

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