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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TANGLETOWN, LLC,

Plaintiff,

v.

UNDERWRITERS AT LLOYD’S, LONDON,

Defendant.

CASE NO. C06-846C

ORDER

This matter comes before the Court on Plaintiff Tangletown, LLC’s Motion to Remand to State

Court (Dkt. No. 6). Having reviewed the materials submitted, and concluding that oral argument is not

necessary, the Court hereby orders Plaintiff’s motion is DENIED for the following reasons.

I. Background

Plaintiff was the developer of the Tangletown Condominiums. On June 7, 2004, the Tangletown

Condominium Owners Association filed suit against Plaintiff for construction defects; in turn, Plaintiff

filed a third-party complaint against the general contractor, Titan Construction Corporation. Titan was

insured by Defendant Lloyd’s of London. Plaintiff filed the present suit against Defendant on June 29,

2005, alleging that Titan’s policies with Defendant covered Plaintiff as an additional insured and that

Defendant breached its duty to investigate and defend Plaintiff in the construction defect action. The

complaint did not make a specific monetary demand; instead, it stated that “[a]s a further consequence of

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1

 For this reason, Plaintiff’s reliance in its Response on the unpublished disposition Rubstello, Inc.

v. Transp. Ins. Co., No. 05-0688, 2005 WL 1503924 (E.D. Cal. 2005), is misplaced. In Rubstello,

diversity jurisdiction was apparent on the face of the initial complaint. Id. at *3. Since the initial pleading

was indeterminate in the present case, Rubstello is inapplicable. 

ORDER – 2

their [sic] bad faith conduct, Defendant is obligated to pay the full amount of any judgment, settlement, or

verdicts against, or entered into by, Tangletown, LLC.” (Compl. ¶ 17.) 

Plaintiff filed a First Amended Complaint on June 2, 2006. This time, Plaintiff requested a

specific sum—$1,745,931.50—based on a stipulated judgment entered into between Plaintiff and

Defendant’s insured, Titan. On June 19, 2006, Defendant filed a notice of removal to federal court, on

the basis of diversity jurisdiction. Plaintiff does not challenge that diversity jurisdiction exists. Instead, it

challenges that Defendant’s removal was timely under 28 U.S.C. § 1446. 

II. Analysis

The procedure for removing a matter from state to federal court is governed by 28 U.S.C. § 1446. 

If the basis for removal is clear from the initial pleading, the notice of removal must be filed within thirty

days of defendant’s receipt of the complaint or service of summons. Id. § 1466(b). If the complaint does

not reveal a basis for federal jurisdiction, however, “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.” Id.

The Ninth Circuit recently formulated three possible removal scenarios in a diversity case—1) the

case is clearly removable on the face of the complaint, 2) the case is clearly not removable on the face of

the complaint, or 3) “it is unclear from the complaint whether the case is removable.” Harris v. Bankers

Life and Cas. Co., 425 F.3d 689, 693 (9th Cir. 2005). This third scenario is referred to as an

“indeterminate pleading,” id., and is the one at issue here.1

 

Harris considered whether the “jurisdictional facts supporting removal of an action from state

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26 ORDER – 3

court to federal court must be apparent from the face of the initial pleading or whether the mere spectre

of removability triggers a duty of inquiry.” 425 F.3d at 690. Robert Harris filed a claim against two

defendants, an insurance company who denied him benefits under a disability insurance policy, Bankers

Life and Casualty Company, and the insurance agent who had sold him the policy in the mid-1970s,

Kenneth Brown. Though Harris and Bankers were diverse, the initial complaint did not state a current

place of citizenship for Brown, because his whereabouts were unknown. Id. at 691.

Brown’s whereabouts continued to be unknown for nearly nine months after the filing of the

initial complaint, and Brown remained unserved. Id. When it became clear that Harris had effectively

abandoned his claims against Brown, Bankers filed a notice of removal, which Harris subsequently

challenged as outside the 30-day limitation set by § 1446(b). Id. at 692. Harris claimed that though his

initial complaint did not provide a current place of citizenship for Brown, Bankers was under a duty to

investigate the necessary jurisdictional facts within 30 days of the filing of the indeterminate complaint. 

Id. at 693.

The Ninth Circuit declined to impose on defendants an obligation to look beyond the four corners

of an indeterminate pleading to determine whether there was a basis for federal jurisdiction. It held:

[N]otice of removability under § 1446(b) is determined through examination of the four

corners of the applicable pleadings, not through subjective knowledge or a duty to make

further inquiry. Thus, the first thirty-day requirement is triggered by defendant’s receipt

of an “initial pleading” that reveals a basis for removal. If no ground for removal is

evident in that pleading, . . . the notice of removal may be filed within thirty days after the

defendant receives “an amended pleading, motion, order or other paper” from which it can

be ascertained from the face of the document that removal is proper.

Id. at 694 (emphasis added). Harris’s bright-line rule increases certainty and predictability. Such a rule

also prevents the removal determination from becoming a mini-trial as to the defendant’s subjective

knowledge. See Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997) (cited with approval in

Harris, 425 F.3d at 695). 

More saliently, a bright-line rule prevents gamesmanship in pleading. Since the plaintiff is the

master of her complaint, she can avoid having her case heard in federal court by demanding less than

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 Plaintiff’s arguments largely concern when Defendant “knew” or was “on notice” that the

amount in controversy exceeded $75,000. These arguments are unavailing, since they ignore Harris’s

holding that a defendant’s subjective knowledge that a case is removable is irrelevant to the determination

of when the thirty-day period begins. 425 F.3d at 694. Instead, the question is when Defendant received

a pleading or paper from which the amount in controversy could be ascertained. 

ORDER – 4

$75,000, or choosing defendants with diversity in mind. Attempting to avoid removal through

indeterminate pleading, however, is not appropriate. As noted by the Eighth Circuit, the rule adopted in

Harris “prevents a plaintiff from disguising the amount of damages until after the thirty-day time limit has

run to avoid removal to federal court.” In re Willis, 228 F.3d 896, 897 (8th Cir. 2000).

Despite Plaintiff’s contention that “[t]he facts of Harris are so distinguished [sic] from this case

that it is difficult to understand why London cited Harris in its brief,” Harris’s rule for indeterminate

pleadings controls here. It was not clear from the face of Plaintiff’s initial complaint that the amount in

controversy exceeded $75,000 as required for diversity jurisdiction. 28 U.S.C. § 1332. The complaint’s

demand that “Defendant is obligated to pay the full amount of any judgment, settlement or verdict taken

against, or entered into by, Tangletown, LLC” does not state an amount in controversy, so it does not

make the basis for diversity jurisdiction “apparent from the face of the complaint.” Harris, 425 F.3d at

693. Thus, it was an indeterminate pleading, and defendants could file a notice of removal within thirty

days of receipt of an amended pleading, motion, order or other paper from which it could be ascertained

from the face of the document that over $75,000 was in controversy.2

It is not necessary to fully explore the scope of § 1466(b)’s “amended pleading, motion, order or

other paper” to conclude that the documents submitted by Plaintiff were insufficient to trigger the

commencement of the thirty-day period. First, while the Ninth Circuit has not considered the question,

“[c]ourts in the Ninth Circuit tend to follow the ‘paper in the case’ rule for determining when the

thirty-day provision commences to run.” Hudson v. Pinkerton Sec. Servs., 2004 U.S. Dist. LEXIS 19491

(D. Cal. 2004). Thus, there is some support for the proposition that the “paper” that triggers the thirtyday period must be an “official” filing. Riggs v. Continental Baking Co., 678 F. Supp. 236, 238 (D. Cal.

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26 ORDER – 5

1988) (“The elements of removability must be specifically indicated in official papers before the statutory

period begins to run.” (emphasis added)); see also Eyak Native Village v. Exxon Corp., 25 F.3d 773, 779

(9th Cir. 1994) (interpreting “other paper” to include a reply brief filed in the removed action, but not a

consent decree filed in a related action); Peabody v. Schroll Trust, 892 F.2d 772, 775 (9th Cir. 1989)

(holding that the thirty day period was not triggered by documents that were not made part of the state

court record). Plaintiff cites to several cases from the district courts in the Fifth and Eleventh Circuits

interpreting “other paper” to include settlement documents and demand letters, but is unable to cite any

such precedent closer to home. Nor has this Court’s research uncovered any such precedent.

Moreover, the documents submitted by Plaintiff in support of its contention that Defendant was

on notice that the amount in controversy exceeded $75,000 all concern the suit filed against Plaintiff by

the Tangletown Condominium Owners Association, and the related third-party action against Titan. 

Even if the Court were inclined to interpret “other paper” to include informal correspondence between

the parties, this correspondence does not suffice. Two of the letters are from the end of 2004, before

Plaintiff even filed the complaint against Defendant. Correspondence exchanged prior to the initial

pleading fall outside the scope of “other papers.” The letter dated June 30, 2005, a day after the

complaint was filed, is a demand letter sent by counsel of the Condominium Owners Association to

Defendant’s counsel, offering to waive certain claims the Association had against Defendant in exchange

for tender of the policy limit of $1,000,000. The demands of the Condominium Owners Association, not

a party in the present suit, cannot establish what Plaintiff’s demands on Defendant will be in a different

suit. Likewise, the settlement agreement and judgment between Plaintiff and Titan cannot establish the

amount in controversy between Plaintiff and Defendant in a different suit. Finally, the letter dated August

10, 2005, concerns an insurance policy that is not involved in the present suit, so it also cannot establish

the amount in controversy here.

While the Court is cognizant of the canon that removal statutes should be construed strictly

against removal, and that doubts about removal must be resolved in favor of remand, Duncan v. Stuetzle,

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26 ORDER – 6

76 F.3d 1480, 1485 (9th Cir. 1996), there can be no such doubts here.

The Court takes notice of Defendant’s Motion to Strike, but considers the contested portions of

the Declaration of Emily Schultz and Exhibits A and B only for admissible purposes.

III. Conclusion

Plaintiff Tangletown, LLC’s Motion to Remand to State Court is DENIED.

SO ORDERED this 25th day of September, 2006.

AJohn C. Coughenour

United States District Judge

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