Briggs v. Geico General Insurance Co., 2006 WL 1897210, No. 06-CV-00550 (D.Colo. July 10, 2006).
We don’t know if a gecko that loses its tail will grow its tail back. You need to go to the Animal Planet website for that juicy tidbit of information. In this case, however, Geico’s gecko’s tail was severed by the federal court, and it probably won’t grow back.
You have to give points to Geico for creativity. After all, it did adopt a talking gecko as its mascot. In this case, its lawyers made the innovative argument that an action “commenced” under CAFA when a Colorado state court judge ordered claims against Geico severed from those brought against other insurance companies.
In January, 2003 Briggs, along with approximately 49 other plaintiffs, filed this Colorado state court action against a number of automobile insurers. Shortly thereafter, Geico moved to sever the claims against it from the other insurers. The state court denied the motion to sever. In September, 2005 Geico moved to sever again. This time, the plaintiffs’ counsel consented to the severance, and in February, 2006, the state court granted the motion to sever. The plaintiffs agreed to file amended petitions and new motions for class certification in each of the severed actions. Before the amended petition and new motion for class certification was filed in the Geico case, the sneaky gecko removed the case to federal court. Naturally, the plaintiffs moved to remand.
Geico asserted that this action "commenced" when the case against it was severed in February, 2006. Federal District Judge Blackburn looked to the relation-back provision of the Colorado Rules of Civil Procedure (no surprise here that it is Rule Number 15, just like in federal court) and the Tenth Circuit’s decision in Prime Care of Northeast Kansas, LLC v. Humana Insurance Co., 447 F.3d 1284 (10th Cir. 2006) to decide that an order severing claims in state court does not “commence” an action under CAFA. (Editors’ Note: See the CAFA Law Blog analysis of Prime Care posted on August 16, 2006 ).
It did not matter that the Colorado state judge ordered plaintiffs to file a new complaint in the severed action, or that the case got a brand new number, Blackburn reasoned. These events did not point to a newly commenced action because the claims against Geico did not change, Blackburn said. The new complaint the plaintiffs were required to file against Geico in the severed action was essentially an amended complaint that related back to the original suit, the judge declared.
Geico also tried to argue that removal was also proper under 28 U.S.C. § 1446(b), but Blackburn said that the statute barred removal of an action more than a year after “commencement,” which happened here when plaintiffs first filed in Colorado state court in 2003.
So, Geico’s gecko was sent back to the District Court of Boulder County, Colorado hoping that its tail will grow back.