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Lawrence Countryman, On Behalf of Himself and All Others Similarly Situated v. Farmers Insurance Exchange

May 10, 2011

LAWRENCE COUNTRYMAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE,
v.
FARMERS INSURANCE EXCHANGE, AN INSURER, AND OWNER OF MID-CENTURY INSURANCE COMPANY; MID-CENTURY INSURANCE COMPANY, A CALIFORNIA CORPORATION, DEFENDANTS-APPELLANTS.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:10-CV-01075-REB-KMT)

Per curiam.

PUBLISH

Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.

Defendants-Appellants Farmers Insurance Exchange ("Farmers Insurance") and Mid-Century Insurance Company ("Mid-Century Insurance") removed a putative class action from state court to federal district court. Upon motion of Plaintiff-Appellee, Lawrence Countryman, the federal district court remanded the action to state court based on a procedural defect in Defendants' joint notice of removal. Defendants petitioned this court pursuant to 28 U.S.C. § 1453(c)(1) for leave to appeal the district court's order of remand. We granted that petition and extended the time for rendering our judgment. Id. § 1453(c)(3).

Background

On March 25, 2010, Plaintiff Lawrence Countryman filed a putative class action in the District Court for Montrose County, State of Colorado, alleging among other things that Defendants Farmers Insurance and Mid-Century Insurance violated Colorado insurance statutes and breached their contracts by refusing to pay reasonable and necessary medical expenses on automobile insurance policies.

Plaintiff asserted fifteen claims on behalf of three different subclasses: a repricing subclass; an apportionment subclass; and a two-year limitation subclass.

On April 7, 2010, a summons and complaint were served on each Defendant. On May 7, 2010, within the thirty-day removal period, Defendants filed a joint notice of removal of the action to federal district court pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. §§ 1332(d), 1453. Defendants' joint notice of removal contained "a copy of all process, pleadings, and orders" served on Defendant Farmers Insurance and "a copy of all process, pleadings, and orders" served on Defendant Mid-Century Insurance except for the summons. 28 U.S.C. § 1446(a). On June 4, 2010, Plaintiff filed a motion to remand the action to state court, arguing that the joint notice of removal was defective because of the absence of a copy of the summons served on co-Defendant Mid-Century Insurance. Shortly after expiration of the thirty-day removal period, Defendants supplemented their original and timely joint notice of removal to include a copy of the summons served on co-Defendant Mid-Century Insurance.

In a November 3, 2010 Order, the district court granted Plaintiff's motion to remand. Countryman v. Farmers Ins. Exch., No. 10-cv-01075, 2010 WL 4537091, at *2 (D. Colo. Nov. 3, 2010). The court rejected Defendants' argument that the failure to attach a copy of the summons served on co-Defendant Mid-Century Insurance was irrelevant because Defendant Farmers Insurance had attached "all process, pleadings, and orders" served on it and because Defendant Farmers Insurance could remove the case to federal court under § 1453(b) without the consent of co-Defendant Mid Century Insurance. The court stated:

The fact is that defendants in this case 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 section 1446. In this they failed, which constitutes a defect in removal procedure, necessitating remand.

Id.

In reaching its decision, the district court relied on prior Colorado district court decisions holding that a removing party's failure to adhere strictly to the unequivocal language of § 1446(a) by not including every document served on the removing party constituted a "fatal defect" in removal procedure.

Discussion

Plaintiff argues that Defendants' joint notice of removal was procedurally defective under ยง 1446(a) because of the omission of co-Defendant Mid-Century Insurance's summons, that this omission was not curable, and that a remand was required because this procedural defect was timely raised. Defendants argue that the district court erred in remanding the case because omission of the co-Defendant's summons was a ...


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