Stone et al v. Government Employees Insurance Company et al, No. 3:2016cv05383 - Document 35 (W.D. Wash. 2016)
Court Description: ORDER granting 16 Motion to Remand by Judge Benjamin H. Settle.(TG)
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Stone et al v. Government Employees Insurance Company et al Doc. 35 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 MEGAN STONE and CHRISTINE 9 CAROSI, 10 Plaintiffs, 11 v. CASE NO. C16-5383 BHS ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND 12 GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al., 13 Defendants. 14 15 This matter comes before the Court on Plaintiffs Megan Stone (“Stone”) and 16 Christine Carosi’s (“Carosi”) (collectively, “Plaintiffs”) motion to remand (Dkt. 16). The 17 Court has considered the pleadings filed in support of and in opposition to the motion and 18 the remainder of the file and hereby grants the motion for the reasons stated herein. 19 I. PROCEDURAL AND FACTUAL BACKGROUND 20 Stone was involved in a hit and run car accident on May 22, 2014. Dkt. 3-2 ¶ 1.3. 21 Stone had an automobile insurance policy with Defendant Geico General Insurance 22 ORDER - 1 Dockets.Justia.com 1 Company (“Geico”). Id. ¶ 2.1; Dkt. 12-1. Stone was unable to use her car for about 105 2 days while Geico investigated her claim and while her car was being repaired. Dkt. 3-2 3 ¶ 1.5. 4 On June 17, 2015, Stone filed a class action complaint against Geico 1 in Pierce 5 County Superior Court. Id. Stone claims Geico failed to pay her for “loss of use” 6 damages. Id. ¶¶ 1.6–1.7. Stone sought to certify the following class: 7 8 9 All GEICO insureds with Washington policies issued in Washington State, where GEICO determined the loss to be covered under the Underinsured Motorist (UIM) coverage, and their vehicle suffered a loss requiring repair, or the vehicle was totaled, during which time they were without the use of their vehicle, for a day or more. 10 Id. ¶ 5.3. Stone claimed there would be about 5,000 class members and the average 11 damages would be about $140 per class member. Id. ¶¶ 3.2–3.3. Based on these 12 numbers, Stone alleged the amount in controversy would be at most $700,000. Id. ¶ 3.3. 13 Stone asserted a single breach of contract claim, and sought compensatory damages, 14 injunctive and equitable relief, and attorney fees. Id. ¶¶ 6.1–6.5, 7.1. 15 On February 18, 2016, Geico’s Rule 30(b)(6) designee, David Antonacci 16 (“Antonacci”), was deposed. Dkt. 9-3, Deposition of David Antonacci (“Antonacci 17 Dep.”). Antonacci testified that about 18,000 Geico insureds had filed UIM claims 18 during the class period in Washington. Id. at 13:2–21. Antonacci further testified that 19 Geico possessed information regarding the average price it paid for rental cars during the 20 class period. Id. at 22:9–14, 39:24–40:21. 21 1 Stone named seven Geico-related insurers as defendants in her complaint. For 22 simplicity, the Court refers to all defendants as “Geico” in this order. ORDER - 2 1 On May 10, 2016, Stone filed an amended complaint, which added Carosi as a 2 named plaintiff. Dkt. 1-2 (“Comp.”). Carosi was involved in a rear-end collision while 3 insured by Geico. Id. ¶ 1.6. Carosi was unable to use her car for about 35 days while 4 Geico investigated her claim and while her car was being repaired. Id. ¶¶ 1.6, 1.8, 3.2. 5 Plaintiffs’ amended complaint contains the same proposed class definition, class 6 allegations, breach of contract claim, and requests for relief. Compare Dkt. 3-2, with 7 Comp. 8 On May 16, 2016, Plaintiffs moved for class certification. Dkt. 3-50. Plaintiffs 9 sought to certify the same class pled in their original complaint. Id. To support their 10 motion, Plaintiffs provided a declaration from their statistician, Dr. Bernard Siskin (“Dr. 11 Siskin”), who explained how the number of class members and the average damages per 12 class member could be determined. Dkt. 17-6, Declaration of Bernard Siskin (“Siskin 13 Dec.”) ¶¶ 4–5. 14 On May 20, 2016, Geico removed the action to this Court under the Class Action 15 Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Dkt. 2-1. Geico alleges the proposed class 16 may include as many as 22,929 members and the average damages may be $321.30 per 17 class member. Id. at 4. Based on these numbers, Geico asserts there is potentially 18 $7,367,087.70 in controversy. Id. 19 On June 14, 2016, Plaintiffs moved to remand. Dkt. 16. On July 5, 2016, Geico 20 responded. Dkt. 23. On July 8, 2016, Plaintiffs replied. Dkt. 30. On July 13, 2016, 21 22 ORDER - 3 1 Geico filed a surreply, seeking to strike a declaration submitted by Plaintiffs with their 2 reply. 2 Dkt. 33. 3 4 II. DISCUSSION Plaintiffs move to remand, arguing Geico’s notice of removal is untimely and 5 Geico has not shown the amount in controversy exceeds CAFA’s jurisdictional 6 requirement of $5,000,000. Dkt. 16. 7 “A defendant generally may remove a civil action if a federal district court would 8 have original jurisdiction over the action.” Allen v. Boeing Co., 784 F.3d 625, 628 (9th 9 Cir. 2015). CAFA vests federal district courts with original jurisdiction over class 10 actions involving more than 100 class members, minimal diversity, and at least 11 $5,000,000 in controversy, exclusive of interests and costs. Dart Cherokee Basin 12 Operating Co. v. Owens, 135 S. Ct. 547, 552 (2014) (citing 28 U.S.C. § 1332(d)). 13 “The timeliness of removals pursuant to CAFA is governed by 28 U.S.C. 14 § 1446(b).” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 884 (9th Cir. 2010). 15 “[S]ection 1446(b) identifies two thirty-day periods for removing a case.” Id. at 885. 16 “The first thirty-day removal period is triggered ‘if the case stated by the initial pleading 17 is removable on its face.’” Id. (quoting Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 18 694 (9th Cir. 2005)). “The second thirty-day removal period is triggered if the initial 19 pleading does not indicate that the case is removable, and the defendant receives ‘a copy 20 2 “As a general rule, a movant may not raise new facts or arguments in his reply brief.” Karpenski v. Am. Gen. Life Co., LLC, 999 F. Supp. 2d 1218, 1226 (W.D. Wash. 2014) (internal quotation marks omitted). In reaching its decision, the Court has not relied on the declaration 22 that Geico seeks to strike. 21 ORDER - 4 1 of an amended pleading, motion, order or other paper’ from which removability may first 2 be ascertained.” Id. (quoting 28 U.S.C. § 1446(b)). “If the notice of removal was 3 untimely, a plaintiff may move to remand the case back to state court.” Id. 4 Neither party argues the first thirty-day removal period was triggered in this case. 5 Geico asserts that Plaintiffs’ motion for class certification provided the first indication 6 that the amount in controversy exceeds $5 million, thereby triggering the second thirty7 day removal period. Dkt. 2-1 at 2. According to Geico, Dr. Siskin’s declaration in 8 support of Plaintiffs’ motion provided new information about the size of the proposed 9 class and the average damages per class member, which caused Geico to reconsider the 10 potential amount in controversy. Dkt. 23 at 13. 11 Dr. Siskin relied on Plaintiffs’ class definition and Antonacci’s deposition 12 testimony to explain how the class size and the average damages for each class member 13 could be determined. See Siskin Dec. ¶¶ 4–7 (citing Antonacci’s deposition testimony). 14 The information that Geico claims made this case removable—the number of UIM claims 15 in Washington and the average daily rental rate—was disclosed by its corporate 16 representative in his deposition on February 18, 2016. Put another way, Plaintiffs’ 17 motion for class certification provided information that was already available to Geico. 18 Deposition testimony may constitute “other paper” that triggers the second thirty- 19 day removal period under § 1446(b). Carvalho, 629 F.3d at 886–87. Here, Antonacci 20 testified that about 18,000 Geico insureds had filed UIM claims in Washington and that 21 Geico possessed information regarding the average price it paid for rental cars during the 22 class period. Antonacci Dep. at 13:2–21, 22:9–14. Based on Antonacci’s testimony, ORDER - 5 1 Geico could have reasonably determined the case was removable. See Carvalho, 629 2 F.3d at 886–87. Antonacci’s deposition testimony therefore triggered the second thirty3 day removal period. See id. Geico, however, did not file its notice of removal until May 4 20, 2016—more than thirty days after Antonacci’s deposition. Because Geico’s notice of 5 removal is untimely, the Court grants Plaintiffs’ motion to remand. 6 Having granted Plaintiffs’ motion to remand, the Court turns to their request for 7 attorney fees. Dkt. 16 at 16–17. “An order remanding the case may require payment of 8 just costs and any actual expenses, including attorney fees, incurred as a result of the 9 removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award 10 attorney’s fees under § 1447(c) only where the removing party lacked an objectively 11 reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 12 141 (2005). Because the Court cannot conclude that Geico lacked an objectively 13 reasonable basis for removing this case, Plaintiffs’ request for attorney fees is denied. 14 15 III. ORDER Therefore, it is hereby ORDERED that Plaintiffs’ motion to remand (Dkt. 16) is 16 GRANTED and Plaintiffs’ request for attorney fees (Dkt. 16) is DENIED. This action is 17 REMANDED to Pierce County Superior Court. The Clerk shall remove all other 18 pending motions from the Court’s calendar. 19 Dated this 28th day of July, 2016. 20 21 A BENJAMIN H. SETTLE United States District Judge 22 ORDER - 6
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