United States District Court, D. Oregon, Portland Division
SHARON M. JEWETT, in her capacity as trustee of Michael R. Jewett Revocable Living Trust; MICHAEL R. JEWETT, in his capacity as trustee of Michael R. Jewett Revocable Living Trust; MICHAEL R. JEWETT; and SHARON M. JEWETT, Plaintiffs,
SCOTTSDALE INSURANCE COMPANY, and ALLIED INSURANCE COMPANY OF AMERICA, Defendants.
FINDINGS AND RECOMMENDATIONS
YIM YOU, UNITED STATES MAGISTRATE JUDGE
originally filed this insurance coverage action in Multnomah
County Circuit Court on April 16, 2018. ECF #1-1, at 2. On
May 3, 2018, defendant Allied Insurance Company of America
(“Allied”) filed a Notice of Removal with this
court. ECF #1. Plaintiffs have now filed a Motion to Remand.
ECF #9. Plaintiffs also seek an award of attorney fees. For
the reasons discussed below, the motion to remand should be
GRANTED, this case should be remanded to Multnomah County
Circuit Court, and the court should award plaintiff
reasonable attorney fees associated with litigating this
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441. There is a strong
presumption against removal. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992).The removing party bears
the burden of overcoming the presumption against a federal
court's exercise of jurisdiction: “It is to be
presumed that a cause lies outside [the federal court's]
limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Corral v. Select Portfolio Servicing, Inc., 878
F.3d, 770, 773 (9th Cir. 2017) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). “This burden is particularly stringent for
removing defendants because ‘[t]he removal statute is
strictly construed, and any doubt about the right of removal
requires resolution in favor of remand.'”
Id. at 773-74 (quoting Moore-Thomas v. Alaska
Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009)).
28 U.S.C. § 1446(b)(2)(A), “all defendants who
have been properly joined and served must join in or consent
to the removal of the action.” Thus, “[i]n a case
involving multiple defendants, ‘[a]ll defendants must
join in a removal petition.'” Proctor v. Vishay
Intertechnology Inc., 584 F.3d 1208, 1224 (9th Cir.
2009) (quoting Hewitt v. City of Stanton, 798 F.2d
1230, 1232 (9th Cir. 1986)). However, the Ninth Circuit has
held that a notice of removal filed by one defendant is
effective on behalf of other defendants if it contains an
averment of the other defendants' consent and is signed
by an attorney of record. Id. at 1225.
removal statute provides that the “notice of removal of
a civil action or proceeding shall be filed within thirty
days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading.” 28
U.S.C. § 1446(b). Any defects in the removal notice,
including lack of unanimity among defendants, must be cured
within those 30 days, and the removing defendant has the
burden of explaining the absence of any co-defendants in the
notice of removal:
Section 1446 requires all proper defendants to join or
consent to the removal notice. . . . Where fewer than all the
defendants have joined in a removed action, the removing
party has the burden under section 1446(a) to explain
affirmatively the absence of any co-defendants in the notice
for removal. . . . The defects in the removal notice were not
cured within the thirty-day statutory period permitted for
joinder. . . . Accordingly, because the removal notice was
facially defective and the deficiencies uncured within the
thirty-day statutory period, removal was improper.
Prize Frize, Inc. v. Matrix, 167 F.3d 1261, 1266
(9th Cir. 1999) (citations omitted), superseded by statute on
other grounds as recognized in Abrego Abrego v.
Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).
April 18, 2018, two days after this case was filed, both
Allied and codefendant, Scottsdale Insurance Company
(“Scottsdale”) were served through their
registered agents. Archer Decl. ¶ 3, ECF #10;
id., Ex. 2, ECF #10-2. Allied timely filed the
Notice of Removal on May 3, 2018, but the notice did not
include Scottsdale's consent and did not account for
Scottsdale's position. ECF #1.
counsel represents that he spoke with Scottsdale's
counsel on April 24, 2018, and she confirmed Scottsdale did
not object to removal. Thenell Decl. ¶ 3, ECF #14.
Scottsdale subsequently “affirmed its consent” in
email correspondence to Allied's counsel on May 14, 2018.
Id. at ¶ 2. On May 30, 2018, 42 days after
being served, Scottsdale filed a document with this court
entitled “Consent to Removal, ” in which
Scottsdale stated it “consents to co-defendant Allied
Insurance Company of America's Notice of Removal.”
contend that remand of this action is required because the
Notice of Removal is facially defective. Defendants admit the
Notice of Removal is defective, both because it did not
include Scottsdale's consent and because it failed to
account for Scottsdale's position. Response 3, ECF #13.
However, defendants assert this was a “procedural
error” that has since been corrected. ...