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Garcia v. Century Surety Co.

United States District Court, D. Colorado

October 17, 2014

LORENA GARCIA, Plaintiff,
v.
CENTURY SURETY COMPANY, an Ohio Corporation Garnishee/Defendant

For Lorena Garcia, for herself and as the personal representative of Estate of Reyes Garcia, Plaintiff: Randal R. Kelly, LEAD ATTORNEY, Kelly Law Firm, LLC-Denver, Denver, CO.

For Century Surety Company an Ohio Corporation, Garnishee: Jerad A. West, LEAD ATTORNEY, Lelia Kathleen Chaney, Lambdin & Chaney, LLP, Denver, CO.

Page 1185

ORDER DENYING MOTION FOR REMAND

Robert E. Blackburn, United States District Judge.

The matter before me is plaintiff's Motion For Remand [#13],[1] filed August 25, 2014. I deny the motion.

I. JURISDICTION

I putatively have subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity of citizenship).

II. STANDARD OF REVIEW

The federal removal statute provides that " any 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(a). A motion to remand the case based on any defect other than subject matter jurisdiction must be filed within 30 days of the filing of the notice of removal; a motion to remand based on lack of federal subject matter jurisdiction may be filed at any time prior to the entry of final judgment. 28 U.S.C. § 1447(c). If the court finds that remand is appropriate and that the removing party lacked an objectively reasonable basis for removal, costs -- including attorney fees -- may be awarded as well. Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 711, 163 L.Ed.2d 547 (2005); Porter Trust v. Rural Water Sewer and Solid Waste Management District No. 1, 607 F.3d 1251, 1253 (10th Cir. 2010).

This case involves the removal of a writ of garnishment in a third-party insurance case. Colorado's garnishment procedures are set forth in Colorado Rule of Civil Procedure 103, and have been summarized by the courts as follows:

The judgment creditor attempting to collect on the judgment debt bears the burden of proving the existence and validity of the indebtedness of the garnishee. Accordingly, the garnishee is treated

Page 1186

in the same manner as if it had been sued directly on the debt by the judgment debtor and is thus entitled to deny the indebtedness to the judgment debtor, to engage in discovery, and to have a hearing at which the judgment creditor must prove the allegations by a preponderance of the evidence. The parties may offer expert testimony and also may rely on portions of the record in the underlying tort case.

Hoang v. Monterra Homes (Powderhorn) LLC, 129 P.3d 1028, 1033 (Colo. App. 2005) (internal citations omitted). The ultimate question in this case is whether the damages as to which plaintiff has recovered judgment are covered by the policy of insurance. See Bohrer ...


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