Nguyen v. Geico Casualty Company
2:16-cv-02266
D. Nev.Mar 27, 2017Background
- Nguyen sued Geico in Nevada state court for bad-faith failure to tender policy limits after an accident; complaint filed May 20, 2016.
- Nevada Insurance Commissioner accepted service on behalf of Geico and mailed the summons and complaint by certified mail to Geico’s Nevada statutory agent on July 25–26, 2016.
- Nguyen’s counsel sent a copy of the Commissioner’s July letter to Geico’s counsel on September 20, 2016.
- Geico removed the case to federal court seven days after receiving Nguyen’s September letter, asserting it had not received the Commissioner’s mailed process earlier and thus removal was timely under 28 U.S.C. § 1446(b).
- The central factual dispute was when Geico actually received the summons and complaint (i.e., when the 30-day removal clock began).
- The court found Geico’s affidavit insufficient to show lack of receipt or personal knowledge and concluded Geico failed to carry its burden to prove timely removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was timely under 28 U.S.C. § 1446(b) after service via Nevada’s statutory agent | Nguyen: service by the Insurance Commissioner on July 25 started the removal clock; removal filed too late | Geico: it never actually received the mailed process and was unaware of the suit until Sept. 2016, so removal was within 30 days of receipt | Court: Geico failed to prove it did not receive the process; removal untimely; remand granted |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (establishes federal courts’ limited jurisdiction and presumption against removal)
- Gaus v. Miles, 980 F.2d 564 (9th Cir. 1992) (strong presumption against removal; defendant bears burden of establishing removal jurisdiction)
- Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089 (9th Cir. 2003) (defendant may rely on pleading and summary-evidence to show removal is timely)
- Harris v. Bankers Life and Cas. Co., 425 F.3d 689 (9th Cir. 2005) (timing rules under § 1446(b) and when removal clock starts)
- Transamerica Ins. Co. v. C.B. Concrete Co., 669 P.2d 246 (Nev. 1983) (Nevada rule on service via Insurance Commissioner)