Leiser et al v. Garrison Property and Casualty Insurance Company, No. 3:2020cv05446 - Document 14 (W.D. Wash. 2020)
Court Description: ORDER granting 10 Motion to Remand. Per LCR 3(i), case will be remanded 14 days from the date of this Order, on 7/7/2020. Signed by Judge Robert J. Bryan. (JL)
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Leiser et al v. Garrison Property and Casualty Insurance Company Doc. 14 Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 1 of 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 OWEN LEISER, and JESSICA LEISER, husband and wife, 12 13 14 15 16 17 18 19 20 21 22 23 CASE NO. 20-cv-5446-RJB ORDER GRANTING PLAINTIFF’S MOTION TO REMAND Plaintiffs, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, a subsidiary of USAA Casualty Insurance Company, Defendant. THIS MATTER comes before the Court on Plaintiff’s Motion to Remand. Dkt. 10. The Court has considered the pleadings filed regarding the motion and the remaining file herein. For the reasons set forth below, the motion should be granted. I. FACTS 1. PRE-REMOVAL PROCEEDINGS IN KITSAP COUNTY SUPERIOR COURT This is an insurance bad-faith action against Defendant Garrison Property and Casualty Insurance Company (referred to by Plaintiff as “USAA”) arising from Plaintiff’s claim under a 24 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 1 Dockets.Justia.com Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 2 of 7 1 homeowners insurance policy for damages apparently caused or contributed to by leakage from a 2 bathroom pipe. Dkt. 1-1. On January 16, 2020, Plaintiff filed a complaint in this action in Kitsap 3 County Superior Court. Dkt. 1-1. The complaint provides three claims: (1) Insurer’s Failure to 4 Act in Good Faith, (2) Violation of Washington’s Consumer Protection Act, and (3) Violation of 5 Washington’s Insurance Fair Conduct Act. Dkt. 1-1. The complaint indicates that Defendant’s “own adjuster has evaluated [the estimated cost 6 7 of claimed repairs] at $38,392.17.” Dkt. 1-1, at 6. The prayer for relief section of the complaint 8 does not explicate a total amount in controversy, but it requests “economic and noneconomic 9 damages, diminution in value, and treble damages in an amount to be proven at trial.” Dkt. 1-1, 10 at 8. Defendant was served with the Summons and Complaint on January 17, 2020. Dkt. 10-1, at 11 1. 12 13 On April 14, 2020, Plaintiffs answered Defendant’s first set of Requests for Admission (“RFA”) as follows: 14 REQUEST FOR ADMISSION NO. 25: 15 Admit the damages YOU claim in YOUR COMPLAINT against Garrison in this action inclusive of any attorney’s fees, economic damages, non-economic damages, statutory damages, or otherwise do not exceed $75,000.01? 16 17 RESPONSE TO REQUEST FOR ADMISSION NO. 25: 18 DENIED. Although the entire amount claimed in the Leisers’ COMPLAINT may exceed $75,000.01, it is impossible to determine prior to trial what a jury will award, or what amount of attorneys’ fees will accrue as a result of trial preparation. 19 20 21 Dkt. 1-3, at 4. 22 23 24 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 2 Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 3 of 7 2. REMOVAL AND REMAND PROCEEDINGS IN FEDERAL COURT 1 2 On May 11, 2020, Defendant removed this action from Kitsap County Superior Court to 3 federal court. Dkt. 1. The Civil Cover Sheet indicates diversity jurisdiction as the basis of 4 jurisdiction. Dkt. 1-4. 5 On May 20, 2020, Plaintiff filed the instant Motion to Remand. Dkt. 10. Plaintiff argues 6 that Defendant’s removal of this action was untimely and was not filed within 30 days of receipt 7 of the complaint, as required by 28 U.S.C. § 1446. Dkt. 10, at 3, et seq. Plaintiff indicates that 8 Defendant filed its Notice of Removal 111 days after receiving the complaint. Dkt. 10, at 4. 9 Additionally, Plaintiff argues that Defendant waived the right to remove this action to federal 10 court because Defendant took actions in state court manifesting an intent to have the matter 11 adjudicated there, that Defendant’s removal wrongfully invades the independence of 12 Washington, that Defendant has failed to establish diversity jurisdiction, and that Washington 13 Courts have personal jurisdiction over Defendant.1 Dkt. 10. 14 Defendant filed a response in opposition to the Motion to Remand. Dkt. 12. In relevant 15 part, Defendant argues that the complaint did not provide grounds for removal because the 16 amount in controversy was uncertain. Dkt. 12, at 6, et seq. Defendant contends that the amount 17 in controversy was first established as grounds for removal by Plaintiff’s answer to Defendant’s 18 RFA No. 25, which denied that the amount in controversy did not exceed $75,000.01. Dkt. 12, at 19 7–8. Defendant contends its Notice of Removal was timely because it was filed less than 30 days 20 after receipt of Plaintiff’s answer to RFA No. 25. 21 22 23 24 1 This order does not discuss Plaintiff’s additional arguments to remand. ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 3 Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 4 of 7 1 Defendant contends that the complaint indicates a claim amounting to $26,777.29. Dkt. 2 12, at 3 (citing Dkt. 1-1, at 5, ¶ 3.22). The parties dispute whether Defendant already issued a 3 payment of $5,857.47. Compare Dkts. 12, at 3:22–25, with Dkt. 13, at 2, n.1. Defendant argues 4 that the Complaint did not plead damages over $75,000 because, subtracting the $5,857.47 5 payment from $26,777.29 leaves a claim of only $20,909.82. 6 Plaintiff filed a reply in support of the instant motion. Dkt. 13. In relevant part, Plaintiff 7 disputes Defendant’s method of calculating damages but argues that, even assuming Defendant’s 8 method of calculation, the complaint still contained sufficient information to determine an 9 amount of controversy exceeding $75,000.00. Dkt. 13, at 2–3. Plaintiff argues that if you apply a 10 claim amount of $20,909.82 to the complaint’s bad faith claim, up to $25,000 in treble damages 11 under RCW 19.86.090 for the Consumer Protection Act claim ($20,909.82 + $25,000), and 12 treble damages to the Insurance Fair Claims Act under RCW 48.30.015(2) ($20,909.82 + 13 ($20,909.82 x 3)), the complaint would still provide a claim amount totaling $150,458.92. Dkt. 14 13, at 3. 15 II. DISCUSSION 16 1. REMOVAL AND REMAND 17 The district courts of the United States have original jurisdiction where there is complete 18 diversity between the parties and the amount in controversy exceeds $75,000, exclusive of 19 interest and costs. 28 U.S.C. § 1332(a)(1). The burden of establishing federal jurisdiction is on 20 the party seeking removal, and the removal statute is strictly construed against removal 21 jurisdiction. Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). The 22 defendant has the burden of showing that it has complied with the procedural requirements for 23 removal. Riggs v. Plaid Pantries, Inc., 233 F.Supp.2d 1260, 1264 (D. Or. 2001); Schwartz v. 24 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 4 Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 5 of 7 1 FHP Int'l Corp., 947 F.Supp. 1354, 1360 (D. Ariz. 1996). There is a strong presumption against 2 federal jurisdiction. If there is any doubt as to the existence of federal jurisdiction, the court 3 should remand the matter to state court. Gas v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 4 The removing defendant bears the burden of establishing federal jurisdiction, including 5 any applicable amount in controversy requirement. Abrego Abrego v. The Dow Chemical Co., 6 443 F.3d 676, 682–83 (9th Cir. 2006). Conclusory allegations by the defendant will not suffice to 7 overcome the traditional presumption against removal jurisdiction. Rodgers v. Central Locating 8 Service, Ltd., 412 F. Supp.2d 1171, 1178 (W.D. Wash. 2006); Singer v. State Farm Mut. Auto. 9 Ins. Co., 116 F.3d 373, 375 (9th Cir. 1997). Instead, the courts may look beyond pleadings and 10 consider other summary judgment type evidence relevant to the amount in controversy, tested as 11 of the time of removal. Kroske v. U.S. BankCorp., 432 F.3d 976, 980 (9th Cir. 2005); Valdez v. 12 Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). 13 28. U.S.C. § 1446(b)(1) provides that: 14 17 (1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 18 “Remand is required if a notice of removal is not filed within thirty days after the 19 defendant receives a copy of the complaint.” Newtop v. Rhenquist, C-94-4068-VRW, 1995 WL 20 23929, at *1 (N.D. Cal. Jan. 17, 1995). The Ninth Circuit “ha[s] made clear that [courts] will not 21 charge defendants with notice of removability until [they have] received a paper that gives them 22 enough information to remove.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 790 (9th Cir. 23 2018) (citations and quotations omitted). “[T]he sum claimed by the plaintiff controls if the 15 16 24 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 5 Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 6 of 7 1 claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 2 283, 288 (1938). 3 Here, Plaintiff’s complaint gave sufficient notice of removability. Although the complaint 4 does not explicate a total amount in controversy, the complaint alleges water damage that was 5 estimated by Defendant at $38,392.17 (Dkt. 1-1, at 6:18–19) and requests treble damages (Dkt. 6 1-1, at 8:11–12). The parties suggest competing methods of calculating the amount in 7 controversy, but perhaps the most straightforward, reasonable method of calculation is trebling 8 $38,392.17 for a total of $115,176.51—well more than $75,000.00. The complaint thus gave 9 Defendant notice of removability. 10 Defendant was served with the Summons and Complaint on January 17, 2020 (Dkt. 10-1, 11 at 1), but Defendant’s Notice of Removal was not filed until May 11, 2020. Dkt. 1. Defendant 12 did not file its Notice of Removal within 30 days from receipt of the complaint and thus waived 13 its right to remove. 14 Therefore, Plaintiff’s Motion to Remand should be granted, and this case should be 15 remanded to the Kitsap County Superior Court. The Court need not discuss Plaintiff’s additional 16 arguments to remand at this time. 17 2. PLAINTIFF’S REQUEST FOR ATTORNEY’S FEES 18 A court may reward reasonable attorney’s fees and costs incurred by the party seeking 19 remand. 28 U.S.C. § 1447(c). However, “[a]bsent unusual circumstances, courts may award 20 attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable 21 basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should 22 be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). 23 24 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 6 Case 3:20-cv-05446-RJB Document 14 Filed 06/23/20 Page 7 of 7 1 2 The Court should decline to award attorney’s fees. The complaint did not explicate a total amount in controversy, allowing for an objectively reasonable basis for removal. 3 III. 4 Therefore, it is hereby ORDERED that: ORDER 5 • Plaintiff’s Motion to Remand (Dkt. 10) is GRANTED; 6 • The Court declines to award attorney’s fees and costs incurred by Plaintiff 7 8 9 10 11 12 13 14 15 seeking remand; and • This case is REMANDED to Kitsap County Superior Court in the State of Washington. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 23rd day of June, 2020. A ROBERT J. BRYAN United States District Judge 16 17 18 19 20 21 22 23 24 ORDER GRANTING PLAINTIFF’S MOTION TO REMAND - 7
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