PSC Industrial Outsourcing, LP v. Burlington Insurance Company, The
1:11-cv-00014
D. Haw.Mar 18, 2011Background
- Three state court actions arising from the October 7, 2008 industrial explosion at Plaintiff's used oil recycling plant; Norva was killed and Kahookele injured, with Bomat damages.
- PSC filed third‑party complaints against Burlington Insurance and three actions were removed to federal court (Kahookele 10-00751, Norva 11-00014, Bomat 11-00073).
- State court severed the Kahookele action, prompting Burlington to remove the severed claims; notices of removal followed after a period.
- Court Minutes and the state court’s oral severance ruling indicated removability and initiated the second 30‑day removal window under 28 U.S.C. § 1446(b).
- Court concludes Kahookele removal was untimely under § 1446(b); remand is warranted for Norva and Bomat under the Declaratory Judgment Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Kahookele removal under §1446(b) | Kahookele was timely within the 30‑day window | Removal timely after severance order and minutes | Untimely; Kahookele remand recommended |
| Remand of Norva and Bomat under the Declaratory Judgment Act | Declaratory judgment warrants remand due to parallel state actions | Federal action should proceed; retains issues | Remand warranted under Declaratory Judgment Act |
| Brillhart/Dizol factors favoring remand | Parallel state proceedings and no federal interest | Federal action serves strategic purposes | Factors favor remand |
Key Cases Cited
- Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir. 2005) (second 30‑day window begins when removability is first ascertainable)
- Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876 (9th Cir. 2010) (notice of removal may be triggered by 'other paper' indicating removability)
- Keown v. Tudor Ins. Co., 621 F. Supp. 2d 1025 (D. Haw. 2008) (parallel state proceedings; avoid needless state-law determinations)
- Robsac Indus., Inc. v. Robsac Indus., 947 F.2d 1367, 947 F.2d 1367 (9th Cir. 1991) (Dizol framework; avoid duplicative litigation; state-federal balance)
- Chamberlain v. Allstate Ins. Co., 931 F.2d 1361 (9th Cir. 1991) (Brillhart factors for exercising jurisdiction in declaratory actions)
- GOV’T EMMPS. INS. CO. v. DIZOL, 133 F.3d 1220 (9th Cir. 1998) (additional Dizol factors for declaratory judgments)
- First Ins. Co. v. Callan Assocs., Inc., 113 F.3d 161 (9th Cir. 1997) (distinguish rescission vs. declaratory relief; limits on federal jurisdiction when no independent federal question)