United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
the Court is plaintiff Richard Gregg's motion to remand
or abstain, Doc. 8. For the following reasons, Gregg's
motion to remand is granted.
2016, plaintiff Richard Gregg and an uninsured motorist,
defendant Clint Walker, both of whom are citizens of
Missouri, were in a car wreck. Doc. 9-2, p. 2 (Original
Petition in 16CA-CC00246). Shortly after the incident, Gregg
made a claim for uninsured motorist insurance to defendant
Esurance Property & Casualty Insurance Company,
Gregg's insurer. See Doc. 9-3 (Letter to
Esurance). Gregg filed a petition for damages in state court
against Walker, notified Esurance of the action, and after
Walker failed to appear, obtained a $500, 000 default
judgment. Id.; Doc. 9-10 (Docket for 16CA-CC00246).
November 19, 2018, Gregg filed an application for garnishment
against Esurance in the state court proceeding against
Walker, Doc. 9-1 (Garnishment Action), which Esurance then
moved to quash. In between these two filings related to the
Garnishment Action, Esurance filed a complaint for
declaratory judgment in federal court, seeking to delineate
its contractual relationship with Gregg under the insurance
policy. See No. 2:18-cv-4255-NKL (Declaratory
January 17, 2019, Gregg amended his state court petition to
add a claim against Esurance for breach of contract premised
on Esurance's refusal to pay uninsured motorist benefits.
Doc. 13-2 (Amended Petition). Esurance removed the
proceedings before the state court on January 23, 2019, Doc.
1, and filed a motion to consolidate the Amended Petition
with the Declaratory Judgment. Doc. 3. Gregg filed a motion
to remand arguing that the Court lacks subject matter
jurisdiction over the Amended Complaint and that removal was
courts are courts of limited jurisdiction. Ark. Blue
Cross and Blue Shield v. Little Rock Cardiology Clinic,
P.A., 551 F.3d 812, 816 (8th Cir. 2009). Thus, statutes
permitting removal, including those governing the time for
removal, are strictly construed. Dahl v. R.J. Reynolds
Tobacco Co., 478 F.3d 965, 968 n.5 (8th Cir. 2007)
(citation omitted). The removing party has the burden of
establishing the propriety of removal, and “all doubts
about federal jurisdiction must be resolved in favor of
remand.” Griffioen v. Cedar Rapids & Iowa City
Ry. Co., 785 F.3d 1182, 1192 (8th Cir. 2015) (citations
argues that remand is proper because removal was not
timely. “Section 1446(b) limits removal of
diversity jurisdiction cases by requiring that removal
motions be filed within thirty days of when diversity
jurisdiction is established.” Lindsey v.
Dillard's, Inc., 306 F.3d 596, 600 (8th Cir. 2002).
A notice of removal must be filed “within 30 days after
the receipt by the defendant . . . of a copy of the initial
pleading, ” 28 U.S.C. 1446(b)(1), or if the initial
pleading is not removable, within 30 days of defendant's
“(1) receipt of a copy of an ‘amended pleading,
motion, order or other paper' which supplies a basis (2)
from which ‘it may first be ascertained that the case
is or has become removable.'” Dahl, 478
F.3d at 969 (citing 28 U.S.C. §1446(b)(3)).
party contends that the original petition filed in state
court-a claim for negligence by a citizen of Missouri against
another citizen of Missouri-was removable. According to
Gregg, the Garnishment Action is the first pleading or other
paper before the state court from which it could first be
ascertained that the case had become removable. Gregg
highlights that the Writ contained the parties' names as
well as an amount in controversy above the jurisdictional
threshold. Doc. 9, p. 9. Esurance, however, contends that the
Garnishment Action is not proper, and that the Amended
Petition was the first pleading that made Esurance a
defendant. Doc. 13, pp. 16-17.
Eighth Circuit has twice declined to decide whether a
garnishment summons triggers the 30-day period for removal.
See Lang v. Social Sec. Admin., 612 F.3d 960, 964-65
(8th Cir. 2010) (finding it unnecessary to decide whether the
initial garnishment summons or a supplemental complaint
triggers the 30-day period for removal); Koehnen v.
Herald Fire Inc. Co., 89 F.3d 525, 529 n.5 (8th Cir.
1996) (same). However, courts in this District have found
that the notice of a traditional garnishment action triggers
the 30-day removal period because it provides notice of the
circumstances giving rise to federal jurisdiction. See,
e.g., Elite Nurse Staffing, Inc. v. Am. Cas. Co. of
Reading, Pa., No. 10-4210-NKL, 2010 WL 5300926, *4
(finding that Garnishment Application and Order
“provide[d] sufficient notice of the diverse
jurisdiction, and therefore qualified as the initial pleading
in th[e] case.”); Hayes v. Pharmacists Mut. Ins.
Co., 276 F.Supp.2d 985, 988 (W.D. Mo. 2003) (holding
that Writ of Garnishment triggered 30-day period for
removal); see also Ross v. Scottsdale Ins. Co., No.
10-1499, 2010 WL 4810211, *2-3 (E.D. Mo. Nov. 19, 2010)
(finding 30-day removal period began upon service of
Writ of Garnishment in this case also explicitly disclosed a
basis for federal jurisdiction and was, therefore, the first
filing from which Esurance could ascertain the case has
become removable. It clearly identifies Esurance and Gregg as
parties, and clearly states that Gregg is seeking $545, 040.
Doc. 9-1. In fact, Esurance entered an appearance after the
Writ was filed, prior to the later filed Amended Petition. In
other words, the Writ was the first filing that “put
[Esurance] on notice of the proceeding, identifie[d] the
opposing party, set forth the basis for the proceeding, and
specifie[d] the amount sought.” Hayes, 276
F.Supp.2d at 988. Although the later-filed Amended Petition
modified or added to Gregg's claim, the Amended Petition
does not restart the 30-day period for removal because
“it was already ascertainable that federal [diversity]
jurisdiction could be a basis for removal” based on the
Garnishment Action. Dahl, 478 F.3d at 970.
Accordingly, the Notice of Removal filed 37 days after the
service of the Writ was untimely.
argues that service of the Garnishment Action is irrelevant
in determining when the Amended Petition could be removed
because “a garnishment action is a wholly distinct suit
or action, with its own diversity and timeliness
requirements.” Doc. 18 (Supplemental Authority), p. 1.
For support, Esurance cites Randolph v. Employers Mutual
Liability Insurance Co. of Wisconsin, 260 F.2d 461 (8th
Cir. 1958), and other cases that describe garnishment
proceedings as independent actions for removal purposes. In
Randolph, the Eighth Circuit concluded that even if
a garnishment proceeding against a third party is auxiliary
to the main suit under state law, it can be properly removed
under federal law when diversity of citizenship and the
jurisdictional amount are established. Id. at p.
provides authority for removing a garnishment proceeding on
its own; Randolph does not provide authority for
remanding a garnishment while retaining jurisdiction over a
later-amended associated petition, which is essentially the
result Esurance seeks. Without specific authority permitting