United States District Court, D. Montana
FINDINGS AND RECOMMENDATION OF UNITED STATES
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
initially filed this action in the Montana Sixth Judicial
District Court, Park County, Montana, alleging a class action
against Defendants Safeco Insurance Company and Mid-Century
Insurance Company. (Doc. 7.) Plaintiff claimed the Defendants
unlawfully reduced the payment of damages to Plaintiff, and
all those similarly situated, under Montana's collateral
source statutes. Id. The initial complaint was never
later filed her First Amended Complaint (“FAC”)
on November 2, 2016, and served the Defendants. (Docs. 8; 6-1
at 1.) The FAC omitted the class claims asserted in the
initial complaint. (Doc. 8.).
subsequently filed a motion to amend the FAC on April 27,
2018 to again include class allegations. (Doc. 6-1 at 298.)
Safeco was served with Plaintiff's motion on April 30,
2018 and immediately filed a notice of removal, seeking to
invoke federal jurisdiction under the Class Action Fairness
Act (“CAFA”), 28 U.S.C. §§ 1332, 1453.
before the Court is Plaintiff's Motion to Remand. (Doc.
25.) Safeco has filed an opposition, and Plaintiff has
replied. (Docs. 31, 32.) The motion is fully briefed and ripe
for the Court's review.
Court finds this matter is suitable for determination. Having
considered the parties' submissions, IT IS HEREBY
RECOMMENDED that Plaintiff's Motion to Remand be
originally filed her complaint as a putative class action
against Defendants in Montana state court on November 25,
2013. (Doc. 7.) The action concerns an insurance dispute from
the settlement of Plaintiff's personal injury claim
arising from an automobile accident. Id.
Specifically, Plaintiff challenged the Defendants'
reduction of personal injury settlements based on offsets for
payments made by health insurers under Montana's
collateral source reduction statutes. Id.
never served the complaint on Defendants. Instead, she filed
her FAC almost three years later on November 2, 2016. (Doc.
8.) The FAC differs from the initial complaint, in relevant
part, by omitting all class action allegations. Id.
Defendants were served with the FAC, and thereafter moved to
dismiss the case. The state court granted their motion, and
Plaintiff appealed to the Montana Supreme Court. (Doc. 13.)
The Montana Supreme Court reversed and remanded the case back
to the state district court on March 13, 2018. See
Marshall v. Safeco Ins. Co. & Mid-Century Ins. Co.,
413 P.3d 828 (Mont. 2018).
March 29, 2018, Plaintiff notified Defendants of her intent
to amend the FAC to include class claims. (Docs. 31 at 4;
31-5 at 2.) Plaintiff emailed a copy of her motion to amend
and the proposed second amended complaint to Defendants on
April 3, 2018. Id. Plaintiff filed her motion to
amend and supporting brief on April 27, 2018, and attached a
copy of the proposed second amended complaint. (Doc. 6-1 at
298.) Safeco was served with Plaintiff's motion on April
30, 2018, and removed the case to this Court that same day.
(Doc. 1.) At the time of Safeco's removal, the state
court had not acted on the motion to amend.
removal, Defendants moved for an extension of time to respond
to Plaintiff's motion to amend her complaint. (Doc. 3.)
This Court noted that, pursuant to District of Montana Local
Rule 3.3(a), Plaintiff's motion to amend and any other
motion pending before the state court were automatically
terminated upon removal from state court. (Doc. 18.) This
Court explained that Plaintiff would be required to refile
her motion in this Court. Id. Plaintiff did not
refile the motion. Instead, Plaintiff filed the pending
motion to remand. (Doc. 25.)
support of her motion to remand, Plaintiff contends
Safeco's removal was premature. (Doc. 26 at 5.) Plaintiff
argues this Court does not have jurisdiction because Safeco
removed the case based on a proposed amended complaint.
Id. at 7. Plaintiff cites several district court
decisions within the Ninth Circuit to support her assertion
that a proposed amended complaint does not provide a
sufficient basis for federal court jurisdiction. Id.
Plaintiff contends the state court must grant the motion to
amend before the case is ripe for removal. Id. at 8.
argues that, since the state court had not acted on the
motion to amend, Safeco's removal was based on the FAC.
Id. Plaintiff asserts the FAC does not give this
Court subject matter jurisdiction because it does not contain
class action allegations, a claim for punitive damages, or
allege an amount in controversy greater than $75, 000.
Id. at 5-6.
response, Safeco argues its removal was timely. (Doc. 31 at
5.) Safeco points to conflicting law within the Ninth Circuit
concerning whether a proposed amended complaint triggers
removal. Id. Because those cases have applied other
trigger dates for removal based on the parties' informal