Kleinsasser v. Progressive Direct Insurance Company et al

Filing 42

ORDER denying 41 Motion for Reconsideration signed by Judge Benjamin H. Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MARK D. KLEINSASSER,
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Plaintiff,
v.

CASE NO. C17-5499 BHS
ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

PROGRESSIVE DIRECT INSURANCE
COMPANY and PROGRESSIVE MAX
INSURANCE COMPANY,
Defendants.

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This matter comes before the Court on Plaintiff Mark Kleinsasser’s (“Plaintiff”)
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motion for reconsideration (Dkt. 41).
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On October 10, 2017, the Court set an evidentiary hearing on Plaintiff’s motion to
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remand and requested additional briefing and, if necessary, additional evidence. Dkt. 34.
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On October 17, 2017, Plaintiff filed a motion for reconsideration on the merits. Dkt. 36.
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On October 19, 2017, the Court denied the motion. Dkt. 37. On November 10, 2017,
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Plaintiff filed a second motion for reconsideration on the procedural aspect of holding an
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evidentiary hearing with live testimony. Dkt. 41.
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Plaintiff argues that the issue should be decided similar to a summary judgment
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motion without live testimony. Id. When considering a summary judgment motion, the
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Court takes all facts and inferences in favor of the non-moving party. Anderson v.
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ORDER - 1

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Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“at the summary judgment stage the

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judge’s function is not himself to weigh the evidence and determine the truth of the

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matter but to determine whether there is a genuine issue for trial.”). In contrast, when

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resolving a motion to remand “the district court must make findings of jurisdictional fact

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to which the preponderance standard applies.” Dart Cherokee Basin Operating Co. v.

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Owens, 135 S. Ct. 547, 552 (2014), 135 S. Ct. 547, 554 (citing H.R.Rep. No. 112–10, p.

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16 (2011)). Accordingly, the Court will accept live testimony subject to cross

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examination to resolve the conflicting facts proffered by the parties in this case. Neither

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the Court nor Plaintiff has discovered binding precedent on this issue. While holding an

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evidentiary hearing may be error, Plaintiff has failed to show that it would be manifest

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error. Plaintiff has sufficient time to seek a writ of mandamus if he so desires.

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Otherwise, the Court finds that it is in the interest of all parties to fully develop the record

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and enter findings of fact for appeal, as opposed to entering findings of fact based solely

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on the record, only to have the matter sent back for an evidentiary hearing after appeal.

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Therefore, the Court DENIES Plaintiff’s motion for reconsideration.

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IT IS SO ORDERED.

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Dated this 13th day of November, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2