Seat v. Farmers Group, Inc., No. CIV-06-0309-F (W.D. Okla. May 5, 2006), 2006 WL 1285084
Comedian Will Rogers, himself a rich Okie immigrant to California, once quipped, “When the Okies left Oklahoma and moved to California, they raised the average intelligence level in both states.”
The plaintiff in this Oklahoma class action brought some truth to that wry observation, when she filed a motion to remand under CAFA’s mandatory and discretionary abstention provisions, 28 U.S.C. § 1332(d)(3) and (4), both of which require that at least one defendant be a citizen of the state in which the action was filed, i.e., the Sooner State. In her pithy remand motion, the plaintiff stated with nescient simplicity: “There is at least 1 Defendant . . . who is a citizen (a domesticated Insurance Carrier in the State of Oklahoma) of the State of Oklahoma.” This appears to be the first official sighting (citing?) of that rare Okie creature, the “domesticated” insurance carrier. Apparently, “in the place where even squares can have a ball,” foreign insurers are considered savage wildebeests roaming the great plains.
In denying the motion to remand, the district court found that the plaintiff’s single “vague” and “unsupported” statement regarding citizenship was a procedural dustbowl, which utterly failed to satisfy her burden of establishing the citizenship criteria for abstention under CAFA. For example, the plaintiff’s bone-dry remand motion referred only to her unnamed “domesticated” insurance carrier (at least she could have identified its species), and she did not state that any defendants’ state of incorporation was Oklahoma, or that any defendant had its principal place of business in Oklahoma.
In contrast to the plaintiff’s drought-ridden remand motion, the court found the defendants’ notice of removal to be fertile soil for planting the seeds of federal jurisdiction, and for defeating abstention. The court lauded the defendant insurer’s removal notice, which alleged specific facts establishing that none of the defendants were citizens of Oklahoma for purposes of diversity jurisdiction and CAFA, § 1332(d)(3) and (4). The court concluded that the wildebeest insurer’s undisputed factual representations easily defeated the plaintiff’s “bald contention” that her nameless “domesticated” insurer was a citizen of Oklahoma for purposes of CAFA’s abstention provisions. Accordingly, because the plaintiff had not satisfied her burden of proving that abstention was proper, the court denied her motion to remand.
On a minor point, the court rejected the defendants’ objection to the filing of the plaintiff’s third amended complaint as an attempt by the plaintiff to avoid federal jurisdiction and thereby require remand. The court found that the third amended complaint, filed after the date of removal, was a “post-remand” (“post-removal”?) amendment that had no impact on whether the court should abstain from exercising jurisdiction under CAFA § 1332(d)(3) and (4).
Hey, even the folks in California know that the propriety of removal is judged on the complaint as it stands at the time of removal.