Solera Oak Valley Greens Association v. Liberty Mutual Underwriters, Inc.
5:17-cv-01972
C.D. Cal.Dec 20, 2017Background
- Solera Oak Valley Greens Association sued Liberty Insurance Underwriters, Inc. and Philadelphia Indemnity Insurance Company in Riverside County Superior Court over insurance coverage disputes.
- Liberty removed the action to federal court asserting diversity jurisdiction and stating no other parties had appeared; it did not obtain Philadelphia’s consent to removal.
- After removal, Solera Oak requested the clerk enter default against Philadelphia in federal court.
- Solera Oak moved to remand the action to state court under 28 U.S.C. § 1446(b)(2)(A) for failure to obtain joinder/consent of all properly joined and served defendants.
- Liberty argued it had attempted to locate a representative of Philadelphia and that Plaintiff’s request for default waived any right to remand.
- The Court found Liberty did not demonstrate reasonable diligence in obtaining Philadelphia’s consent and that Solera Oak did not waive its right to seek remand by requesting default; remand was granted and monetary sanctions were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was defective for lack of unanimous consent under § 1446(b)(2)(A) | Liberty failed to obtain Philadelphia’s consent, so removal is defective | Liberty attempted to contact Philadelphia and could not obtain consent; removal stands | Court held removal defective because Liberty did not show reasonable diligence in securing joinder/consent and did not meet any unanimity exceptions |
| Whether Solera Oak waived remand by seeking entry of default against Philadelphia after removal | Requesting default does not constitute waiver of right to remand | Plaintiff’s actions in federal court (seeking default) show consent to federal jurisdiction and waive remand | Court held requesting default and limited federal activity did not constitute waiver; remand permitted |
Key Cases Cited
- Riggs v. Plaid Pantries, Inc., 233 F. Supp. 2d 1260 (D. Or. 2001) (finding a plaintiff's motion for default could, in that case, indicate consent to federal jurisdiction)
(Other authorities cited in the opinion were unpublished or cited by Westlaw/LEXIS and are not listed here.)