United States District Court, D. Colorado
ORDER
Philip
A. Brimmer, United States District Judge.
This
matter comes before the Court on Plaintiff's Motion to
Remand Action to State Court Pursuant to 28 U.S.C. §
1447(c) [Docket No. 12].
Plaintiff
filed this action in the District Court for Boulder County,
Colorado, on June 14, 2018. Docket No. 1-1. Plaintiff's
complaint alleges that she is entitled to $250, 000 in
underinsured motorist coverage benefits under the terms of an
insurance policy issued by defendant. Docket No. 3 at 3-4,
¶¶ 17-18, 20-21. On November 16, 2018, defendant
removed the case to this Court on the basis of diversity
jurisdiction. Docket No. 1; see also Docket No. 8
(amended notice of removal). On December 14, 2018, plaintiff
filed a motion to remand, asserting that defendant's
notice of removal was untimely under § 1446(b). Docket
No. 12.[1] Plaintiff argues that her complaint and
state court civil cover sheet were sufficient to put
defendant on notice that the amount in controversy
requirement was satisfied and thus the thirty-day removal
clock began to run when defendant was served with those
documents on September 4, 2018. Id. at 4-6,
¶¶ 9, 11-13, 16-17. Defendant responds that,
because plaintiff's complaint “was ambiguous as to
whether her claim for underinsured motorist benefits exceeded
the amount of her settlement with the responsible party,
” defendant did not have clear and unequivocal notice
of removability until November 2, 2018, when plaintiff
provided an itemized account of her damages in her initial
disclosures. Docket No. 15 at 4-5.
In
general, “[t]he 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.” 28 U.S.C.
§ 1446(b)(1). When, however, “the case stated by
the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable.” Id., § 1446(b)(3). The
thirty-day clock under § 1446(b) “does not begin
to run until the plaintiff provides the defendant with
‘clear and unequivocal notice' that the suit is
removable.” Paros Props. LLC v. Colo. Cas. Ins.
Co., 835 F.3d 1264, 1269 (10th Cir. 2016).
The
Court finds that the allegations in the complaint were
sufficient to put defendant on notice that the case was
removable.[2] While defendant reads ambiguity into the
complaint based on plaintiff's allegation that she
settled her claims with the at-fault driver for $250, 000,
Docket No. 15 at 4, the complaint clearly and unequivocally
states that plaintiff is seeking to hold defendant liable for
$250, 000 in underinsured motorist coverage benefits pursuant
to the terms of plaintiff's insurance policy.
See Docket No. 3 at 3-4, ¶¶ 17-18, 20.
Even if
plaintiff's complaint were ambiguous, however, the state
court civil cover sheet, which indicates that plaintiff is
seeking a monetary judgment of more than $100, 000, Docket
No. 1-2 at 1, was adequate to start the thirty-day removal
clock. See Paros Props. LLC, 835 F.3d at
1272-73.[3] Because defendant's notice of removal
was filed more than thirty days after defendant received
plaintiff's cover sheet, see Docket No. 8 at 1,
¶ 2 (stating that plaintiff's civil case cover sheet
was served on defendant on September 4, 2018), the notice of
removal was untimely. See 28 U.S.C. § 1446(b).
Remand is therefore appropriate. See Paros Props.
LLC, 835 F.2d at 1273 (stating that district court
should have remanded case where notice of removal was
untimely).
Plaintiff
requests an award of costs and attorney's fees incurred
as a result of defendant's “inappropriate
removal.” Docket No. 12 at 6, ¶ 19. Under 28
U.S.C. § 1447(c), “[a]n order remanding the case
may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the
removal.” The decision of whether to award costs and
expenses under § 1447(c) rests in the discretion of the
district court. See Martin v. Franklin Capital
Corp., 393 F.3d 1143, 1147 (10th Cir. 2004); Daleske
v. Fairfield Communities, Inc., 17 F.3d 321, 325 (10th
Cir. 1994). “[A] plaintiff is not automatically
entitled to attorney's fees simply because removal was
ultimately determined to be improper.” Martin,
393 F.3d at 1147. Rather, the key factor is whether the
removing party had a legitimate, fair, or objectively
reasonable basis for removing the case to federal court.
See Martin v. Franklin Capital Corp., 546 U.S. 132,
136 (2005); Suder v. Blue Circle, Inc., 116 F.3d
1351, 1352-53 (10th Cir. 1997); Daleske, 17 F.3d at
324-25.
The
Court finds that defendant had no legitimate, fair, or
objectively reasonable basis for removing this case when it
did. As discussed above, the requirements of federal
jurisdiction were clearly ascertainable from both the
complaint and the state court civil cover sheet, which were
received by defendant on September 4, 2018. Even assuming
defendant had a reasonable basis for believing that
plaintiff's complaint was ambiguous, it has been well
settled since 2016 that a state court civil cover sheet
indicating that a plaintiff is seeking more than $100, 000 is
sufficient to start the thirty-day removal clock under §
1446(b). See Paros Pros. LLC, 835 F.3d at
1272-73.[4] Despite this fact, defendant opposed
plaintiff's motion for remand. Under the circumstances,
the Court finds that an award of reasonable attorney's
fees and costs is appropriate. See Excell, Inc. v.
Sterling Boiler & Mech., Inc., 106 F.3d 318, 322
(10th Cir. 1997) (finding award of attorney's fees and
costs appropriate where defendant refused to voluntarily
remand the case even though removal was improper under well
settled law).
For the
foregoing reasons, it is
ORDERED
that Plaintiff's Motion to Remand Action to State Court
Pursuant to 28 U.S.C.S. § 1447(c) [Docket No. 12] is
GRANTED. It is further
ORDERED
that this case is remanded to the District Court for Boulder
County, Colorado, where it was filed as Case No. 2018CV30574.
It is further
ORDERED
that plaintiff is awarded the reasonable costs and
attorney's fees incurred in preparing her motion for
remand and reply brief. Plaintiff shall file an affidavit in
accordance with D.C.COLO.LCivR 54.3 within fourteen days of
this order. Within twenty-one days of receiving
plaintiff's affidavit, defendant may file a response.
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