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ORDER DENYING 

MOTION TO REMAND

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SANDRA SWANSON,

Plaintiff,

v.

LEXINGTON INSURANCE COMPANY, a

foreign company; and ISSAQUAH CARE

CENTER, LLC, a Washington corporation,

Defendants.

No. C06-00005L

ORDER DENYING MOTION TO

REMAND

I. Introduction

This matter comes before the Court on “Plaintiff’s Motion for Remand and for Costs for

Defective Removal” (Dkt. # 9). On March 21, 2003, Sandra Swanson sued the Issaquah Care

Center, LLC (“ICC”) in state court for personal injuries, medical negligence and statutory abuse. 

ICC was insured by the Lexington Insurance Company (“Lexington”), which provided counsel

for its defense. On January 4, 2006, Lexington, now a party to the suit, removed to federal

court. ICC now moves to remand based on lack of diversity and untimeliness.

II. Factual Background

Following a stroke, Sandra Swanson moved into ICC. There, her health rapidly

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ORDER DENYING 

MOTION TO REMAND -2-

deteriorated due to allegedly negligent care and abuse. She resided at ICC from approximately

September, 1998 until August, 2002. In March, 2003, she filed suit against ICC. In August,

2005, after protracted and contentious litigation, the parties agreed to arbitrate. On August 30,

2005, the arbitrator, retired Judge Harry Follman, awarded Swanson $8,068,580. Judge Mary

Yu confirmed the award on September 19, 2005.

Swanson encountered resistance when she attempted to enforce the judgment, and

subsequently added ICC’s insurer, Lexington, as a defendant. In December, 2005, Swanson

acquired several of ICC’s rights of action against Lexington in a sheriff’s sale. She then

amended her complaint to include these claims against Lexington, and also a garnishment cause

of action for the amount owed by Lexington to ICC under the insurance policy. Within thirty

days of this amendment, Lexington removed the action to this Court pursuant to diversity

jurisdiction. 

III. Discussion

Lexington argues that Swanson’s “post judgment garnishment proceeding is a [new] civil

action within the meaning of 28 U.S.C. § 1441(a), and that diversity of citizenship and the

jurisdictional amount having been established, the garnishment proceeding was properly

transferred to the federal court.” Randolph v. Employers Mut. Liability Ins. Co., 260 F.2d 461,

463 (8th Cir. 1958). The Ninth Circuit has endorsed this approach. Swanson v. Liberty Nat’l

Ins. Co., 353 F.2d 12, 13 (9th Cir. 1965) (“We elect to follow [Randolph].”).

Swanson responds that, notwithstanding the current removability of the action, Lexington

failed to satisfy the strict statutory requirements for removal:

If the case stated by the initial pleading is not removable, a notice of removal may

be filed within thirty days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion, order or other paper from

which it may first be ascertained that the case is one which is or has become

removable, except that a case may not be removed on the basis of jurisdiction

conferred by section 1332 of this title more than 1 year after commencement of the

action.

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ORDER DENYING 

MOTION TO REMAND -3-

28 U.S.C. § 1446(b) (added in 1988). Because Swanson initiated her action more than two

years before Lexington removed it, the removal, which is premised on § 1332 diversity

jurisdiction, is not in strict compliance with the statute. See Norman v. Sundance Spas, Inc., 844

F.Supp. 355, 359 (W.D. Ky. 1994) (“[A]bridging defendants’ right to remove diversity cases

beyond one year represents a deliberate legislative trend to curtail federal jurisdiction over suits

between litigants of diverse citizenship.”); see also Jones Mgmt. Servs., LLC v. KES, Inc. 296

F.Supp.2d 892, 894 (E.D. Tenn. 2003) (“The statute says what it says.”).

Swanson contends that because the removal process is governed by statute, and

Lexington did not comply with the statute, this Court “need not reach the garnishment issue.” 

Reply at 6. This gets it backwards. Before the Court assesses whether the removal was

compliant, the Court must determine the appropriate commencement date for the purpose of the

statute. See, e.g., Swanson, 353 F.2d 12 (diversity jurisdiction pursuant to § 1332 only existed if

the garnishment suit was considered a new, separate action, because original defendant was nondiverse). Thus, it is relevant whether, under state and federal law, garnishment is considered a

distinct civil action that was initiated in December, 2005. Should the Court consider the

garnishment a new action, then Lexington’s removal within thirty days of the amended

complaint satisfies the relevant statute.

The seminal Ninth Circuit case is admittedly ambiguous as to the precise issue

confronting this Court. Immediately after it endorsed the language in the Randolph opinion that

is dismissive of the relevance of the state’s garnishment procedures, the Swanson court wrote:

“Our analysis is that Rule 89(f), Rules of Civil Procedure, State of Alaska, sets up garnishment

for this case as an independent civil action.” Swanson, 353 F.2d at 13. This language appears

to contradict the previous sentence and underscore the importance of the state’s

conceptualization of the relationship of the garnishment proceeding to the original action. The

distinction is important because contrary to Alaska, Washington courts generally have

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ORDER DENYING 

MOTION TO REMAND -4-

considered a garnishment proceeding to be ancillary to, and not independent of, the original

claim. See, e.g., Watkins v. Peterson Enters., Inc., 137 Wn.2d 632, 638 (1999) (reasoning that a

garnishment action “is essentially an ancillary action to the principal suit between a creditor and

a debtor”). Using Washington’s approach, the garnishment action would be non-removable

under 28 U.S.C. § 1446(b).

The Swanson district court opinion more clearly stated that the role of a garnishment

proceeding in state law yielded its conclusion that the proceeding was properly considered a

separate action for the purposes of the removal statute. Swanson v. Sharp, 224 F. Supp. 850,

852 (D. Alaska 1963). The opinion holds that “[a]n independent analysis of Rule 89(f), Rules of

Civil Procedure, State of Alaska, leads me to the conclusion that the garnishment proceedings

established thereby is an independent ‘civil action’ within the contemplation of § 1441(a).” Id. 

So, while the Ninth Circuit opinion is ambiguous, the district court opinion that it affirmed is

not.

Since the Swanson district court’s decision, however, federal courts have accepted the

Randolph court’s approach, which decidedly disregards the state’s classification of the

garnishment action. See 16 MOORE’S FEDERAL PRACTICE § 107App.101[7] (“[T]he construction

and application of the removal statutes . . . is a federal matter for independent federal decision;

and with due thought given to the proposition that a state cannot validly restrict the right of

removal.”). Most federal courts have concluded that a garnishment proceeding is a separate and

independent civil action that may be removed to federal court. See Wheelwright Trucking Co. v.

Dorsey Trailers, Inc., 158 F.Supp.2d 1298, 1300 (M.D. Ala. 2001) (“The removeability [sic] of

a garnishment is an open question. The majority view supports removal . . . .”); see also

CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE &

PROCEDURE § 3721 (“[P]roceedings for garnishment . . . are considered civil actions within the

meaning of the federal removal statute.”). The Ninth Circuit has affirmed this understanding of

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1

 According to the amended complaint, there are no remaining issues between Swanson and ICC. 

However, the Court expects that as Swanson continues to make efforts to enforce her final judgment

against ICC, Swanson may wish to initiate ancillary garnishment actions against other potential debtors to

the now-defunct ICC. These actions should be raised in state court.

ORDER DENYING 

MOTION TO REMAND -5-

Swanson: “In [Swanson] we held that the characterization of a garnishment proceeding is a

question of federal law and that the Alaska proceeding in that dispute was a ‘civil action’ under

28 U.S.C. § 1441.” Nationwide Investors v. Miller, 793 F.2d 1044 (9th Cir. 1986) (“The

practical structure of garnishment proceedings supports our decision to allow removal . . . .”).

Upon review of the relevant policy considerations in the instant case, the majority view

must prevail. In Swanson’s pre-judgment action against ICC, Lexington was not a party to the

dispute. In Swanson’s post-judgment action against Lexington, ICC has no meaningful role in

the dispute. The garnishment proceeding is, for all practical purposes, a new, independent civil

action that should be subject to removal notwithstanding the commencement of Swanson’s

affiliated tort action against ICC. The relevant legal issues are different, and nothing from the

previous action, except the fact of the judgment, bears on the garnishment action. 

Further, the non-garnishment causes of action included in the fourth amended complaint

are properly construed as actions between the diverse parties of ICC and Lexington. Because

Swanson has purchased ICC’s causes of action against Lexington and asserted them in the

amended complaint, ICC is properly considered a plaintiff in those matters. For these matters,

ICC must be re-aligned as a plaintiff in the case caption. To the extent that there are any

remaining causes of action between Swanson and ICC, these actions are remanded to state

court.1

Swanson’s use of the state’s liberal joinder and amendment rules undermines the

appropriate role of federal diversity jurisdiction. This Court must assess its jurisdiction pursuant

to federal law without regard for the state’s willingness to consider the garnishment action as

ancillary to the original suit. In this case, Swanson’s garnishment action must be considered a

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ORDER DENYING 

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new civil action under 28 U.S.C. § 1441.

IV. Conclusion

For the following reason, IT IS HEREBY ORDERED that plaintiff’s motion for remand

(Dkt. # 9) is DENIED, subject to footnote 1. Plaintiff’s request for costs is DENIED.

DATED this 10th day of March, 2006.

A

Robert S. Lasnik

United States District Judge

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