Countryman v. Farmers Ins. Exchange, No. 10-CV-01075-REB-KMT, 2010 WL 4537091 (D. Colo. Nov 03, 2010).
None of us will ever forget the sworn testimony of our President when he answered a question with the now famous response "It depends on what the meaning of the word ‘is’ is." Now, in a CAFA context we learn that “all” does not mean “almost.”
A District Court in Colorado remanded the action to state court finding that failure to adhere strictly to the unequivocal language of the removal statute–28 U.S.C. §1446(a) by not including every document served on the removing party constituted a fatal defect in removal procedure, necessitating remand.
The plaintiff, on behalf of himself and on behalf of all insureds of Farmers Insurance Exchange and Mid-Century Insurance Company, brought a putative class action in state court for the defendants’ failure to honor their contractual and statutory obligations when adjusting claims for medical payments coverage on automobile insurance policies.
The defendants, Farmers and Mid-Century, are part of the group of insurers comprising the Farmers Insurance Group of Companies, and have issued automobile insurance policies within the State of Colorado that provide coverage for medical payments–which is a coverage that permits policyholders and their families, as well as occupants of their vehicles, to be covered for medical expenses for injuries arising out of the use of a car, regardless of fault.
The plaintiff served copies of the summons and complaint on the defendants on April 7, 2010.
The defendants jointly removed the case to the District Court on May 7, 2010 pursuant to CAFA. In so doing, however, the defendants failed to attach a copy of the summons served on Mid-Century, contrary to the removal statute–28 U.S.C. § 1446(a)’s requirement that the notice of removal attach copies of “all process, pleadings, and orders served upon such defendant or defendants in such action.”
The Court noted that it had previously found in Kinateder v. American Family Mutual Insurance Co. of Wisconsin, 2009 WL 539668 (D. Colo. March 4, 2009) and Smith v. Times Insurance Co., 2008 WL 4452147 (D. Colo. Sept. 30, 2008) that failure to adhere strictly to the unequivocal language of the statute by not including every document served on the removing party constituted a fatal defect in removal procedure, necessitating remand.
The defendants, however, provided no persuasive reason to the Court to depart from those precedents in this case. In Kinateder and Smith, the Court had found that “Justice is best served when the law operates predictably and reliably. Engaging in somewhat arbitrary exercises of ‘discretion’ to avoid what might seem to be the inflexible operation of a persnickety rule undermines that predictability, and, more importantly, operates as an artificial relief valve that prevents sufficient pressure from building in opposition to the rule to force its rethinking. If the Court should not apply the text of § 1446(a) strictly as written, that command should come from the Supreme Court or the 10th Circuit, not from the fact that other District Courts have chosen not to do so. The language of the statue plainly requires that all process be included with the notice of removal. All means all, not almost.”
Given the limited nature of removal jurisdiction and the concomitant directive to strictly construe removal statutes, as well as the trivial burden on a removing party of complying with the statutory requirement to attach all process, pleadings, and orders served on it, the Court perceived no error in its previous interpretation of the law on this point.
The defendants’ only legal argument was that, because defendant Farmers attached all process, pleadings, and orders served on it, and because it could remove pursuant to § 1453(b) without the consent of defendant Mid-Century, the defect in failing to attach all process, pleadings, and orders served on Mid-Century was irrelevant. The Court remarked that although this theory had no traction here, its application in this case was purely hypothetical. The Court observed that the defendants jointly filed a notice of removal and, thus, jointly assumed the responsibility to attach all process, pleadings, and orders served on either of them. Having chosen to do so, they were required to comply strictly with the requirements of § 1446. In this they failed, which constituted a defect in removal procedure, necessitating remand.