Apro LLC v. HDI-Gerling America Insurance Company ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 9 APRO, LLC, Case No. C22-5857RSM 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 MOTION TO REMAND v. 12 13 HDI-GERLING AMERICA INSURANCE COMPANY, 14 Defendant. 15 16 This matter comes before the Court on Plaintiff APRO, LLC’s Motion to Remand. 17 Dkt. #16. APRO moves for remand on the basis that Defendant HDI-Gerling America 18 19 Insurance Company (“HDI”)’s removal was untimely. HDI opposes, arguing it was not 20 properly served and did not receive actual notice of this matter until a later date. Dkt. #18. 21 Neither party has requested oral argument. 22 When a case is filed in state court, removal is typically proper if the complaint raises a 23 federal question or where there is diversity of citizenship between the parties and the amount in 24 25 controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a). It is presumed “that a cause lies 26 outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the 27 contrary rests upon the party asserting jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 28 1039, 1042 (9th Cir. 2009). “[T]he Court resolves all ambiguity in in favor of remand to state 1 2 court.” Id. Courts “strictly construe the removal statute against removal jurisdiction.” Gaus v. 3 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The ‘strong presumption’ against removal 4 jurisdiction means that the defendant always has the burden of establishing that removal is 5 proper.” Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-290, 58 6 S. Ct. 586, 82 L. Ed. 845 (1938)). Remand may be ordered either for lack of subject matter 7 8 jurisdiction or for “any defect in removal procedure.” 28 U.S.C. § 1447(c). “A notice of 9 removal must be filed within 30 days after receipt by defendant, through service or otherwise, 10 of a copy of the initial pleading.” 28 U.S.C. § 1446. This Court routinely remands cases to 11 state court based solely on untimely removal. 12 13 The parties agree on many details. This is an insurance case brought against an 14 insurance company with its principal place of business in Chicago, Illinois. APRO filed its 15 complaint in Pierce County Superior Court on August 16, 2022. Dkt. #1. Because HDI is a 16 foreign insurer, Washington law requires it to be served through Washington’s Office of the 17 Insurance Commissioner (“OIC”), who then is required to provide the service documents to 18 19 HDI. RCW 48.05.200. 20 The OIC has stated via declaration that it received service documents from APRO on 21 August 22, 2022. Dkt. #1-1, Ex. 15 (“Ward Decl.”), ¶ 4. “Service upon the commissioner as 22 attorney constitutes service upon the insurer.” RCW 48.05.200(1). 23 Once OIC receives the documents, OIC is then responsible for sending copies of the 24 25 process to the insurer. RCW 48.02.200(2). The statute provides that OIC must do so by 26 sending a copy of the process by “mail, electronic means, or other means reasonably calculated 27 to give notice. The copy must be sent or made available in a manner that is secure and with a 28 receipt that is verifiable.” RCW 48.02.200(2). The OIC found HDI’s address in its database 1 2 and mailed the documents through the U.S. Postal Service via certified mail to HDI’s office at 3 161 North Clark Street, 48th Floor, Chicago, Illinois 60601. Id. at ¶¶ 4–5. The U.S. Postal 4 Service website for tracking service “indicates that the documents were delivered to the Front 5 Desk/Reception/Mail Room at 2:53 on August 29, 2022, in Chicago, Illinois 60601.” Id. at ¶ 8. 6 HDI removed more than 30 days later, on November 3, 2022. Dkt. #1. 7 8 HDI agrees with all of the above, but says it did not receive actual notice of the lawsuit 9 until a subsequent letter from Plaintiff’s counsel received on October 5, 2022. It argues that the 10 tracking information from the U.S. Postal Service does not prove actual service occurred and 11 that it is hearsay evidence. Dkt. #18 at 2. HDI submits a declaration indicating that it has no 12 13 record of receiving the service documents and suggests that a signature should have been 14 required. 15 The Court finds that APRO complied with applicable Washington State law for serving 16 a foreign insurer. It appears that OIC complied with the same law. The Court declines to find 17 that the above method of delivery was not reasonably calculated to give notice to an insurance 18 19 company. Proof of actual notice is not required under the statute. While it is possible that the 20 U.S. Postal Service simply failed to deliver the process documents and the tracking information 21 is false, the burden for demonstrating such falls on the removing party. Gaus, supra. The 22 record shows that the documents were mailed to the right address with a tracking number and 23 record of timely delivery. This satisfies Washington law. It is hard to imagine how APRO 24 25 could have provided more evidence. HDI fails to show how or why the delivery information is 26 false. What happened next in the mail room is not clear. HDI’s evidence of having no record 27 28 of receiving the documents is ambiguous, and all ambiguities are resolved in favor of remand. 1 2 Hunter, supra. 3 Given all of the above, the Court finds that removal was untimely under 28 U.S.C. § 4 1446 and that remand is therefore proper. Having reviewed the relevant pleadings, the 5 declarations and exhibits attached thereto, and the remainder of the record, the Court hereby 6 finds and ORDERS that Plaintiff’s Motion to Remand, Dkt. #16, is GRANTED. This case is 7 8 hereby REMANDED to Pierce County Superior Court. 9 DATED this 27th day of December, 2022. 10 A 11 12 RICARDO S. MARTINEZ 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28