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Jansen v. Moving On Up, Inc.

United States District Court, D. Oregon

January 4, 2019

PAULINE JANSEN, Plaintiff,
v.
MOVING ON UP, INC. and MOVING USA, INC., Defendants.

          FINDINGS & RECOMMENDATION

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE

         BACKGROUND

         Plaintiff Pauline Jansen filed an action against defendants Moving On Up, Inc. and Moving USA, Inc. alleging breach of contract, elder abuse, conversion, and unlawful trade practices in Multnomah County, Oregon arising out of defendants' promise to move plaintiff's belongings from Maryland to Oregon (underlying action). Defendants tendered the defense of the underlying action to its insurer, AXIS Supplemental Insurance Company, pursuant to its commercial general liability policy. AXIS declined to defend or indemnify.

         Plaintiff and defendants settled the underlying action for $100, 000 and the Multnomah County Court entered a stipulated judgment on July 26, 2018. On September 7, 2018, the Multnomah County Court entered a supplemental judgment awarding $2, 400.27 in costs to plaintiff and $135, 143.50 in fees to plaintiff's attorney, Kirkpatrick Law, LLC.

         On September 11, 2018, plaintiff's attorney Matthew Kirkpatrick issued a writ of garnishment to AXIS. The writ was for the $100, 000 in damages under the first judgment and the $2, 400.27 in costs in the second judgment. The writ reached AXIS's mail room on September 14, 2018, but was lost before being directed to an appropriate person within AXIS.[1]

         On September 17, 2018, Kirkpatrick issued a second writ of garnishment and AXIS received it on September 20, 2018. This writ sought to garnish the $135, 143.50 attorney fee award in the second judgment.[2]

         AXIS removed the second writ of garnishment to this court on October 19, 2018. Plaintiff moves to remand. The motion should be denied.

         DISCUSSION

A defendant ... desiring to remove any civil action from a State court shall file in the district court ... a notice of removal ... containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

28 U.S.C.A. § 1446(a). Such notice must be filed within 30 days after receipt of service of a copy of the pleading setting forth the claim for relief on which the action is based. 28 U.S.C.A. § 1446(b)(1). There is a strong presumption against removal jurisdiction and the statute is strictly construed against removal. Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010).

         Plaintiff asserts AXIS failed to comply with the 30-day requirement, failed to allege the citizenship of all parties in the notice of removal, and failed to include all process and pleadings served in the Multnomah County Court.

         A. Thirty-Day Requirement

         AXIS filed the notice of removal on October 19, 2018. As noted above, the first writ of garnishment was served on September 14, 2018 and thus removal would not be timely for that action. However, Axis did not remove the first writ. The notice of removal removed only the second writ of garnishment. Kirkpatrick, LLC served the second writ of garnishment on September 20, 2018, less than 30 days before Axis filed the notice of removal.

         The removal statute does not define the term “civil action, ” but federal courts have broadly construed the term. Mach v. Triple D Supply, LLC, 773 F.Supp.2d 1018, 1024 (D.N.M. 2011). Some cases examine whether garnishment actions are merely supplemental proceedings and therefore not subject to removal apart from the underlying action. See, e.g., Richmond v. Allstate Ins. Co., 624 F.Supp. 235, 236 (E.D.Pa. 1985) (citation omitted) (“A suit which is merely ancillary or supplemental to another action cannot be removed from a state court to a federal court.”); W. Med. Props. Corp. v. Denver Opportunity, Inc., 482 F.Supp. 1205, 1207 (D.Colo. 1980) (citations omitted) (“It is a well settled rule that a suit which is merely ancillary or supplemental to another action cannot be removed from a state court to a federal court.”). However, other courts have determined garnishment proceedings can be “original and independent actions between the holders of the ...


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