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1 2 3 4 5 6 7 8 PACIFIC WEST SECURITIES, INC., 9 Petitioner, 10 v. 11 12 13 14 15 16 PLEASE TAKE NOTICE that respondent Endurance American Specialty Insurance 17 Company (Endurance), through its undersigned counsel, hereby removes the above-captioned 18 action from the Superior Court of Washington for King County to the United States District 19 Court for the Western District of Washington, pursuant to 28 U.S.C. 1332, 1441 and 1446. 20 As more fully set out below, this case is properly removed to this Court pursuant to 28 U.S.C. 21 1441 because Endurance has satisfied the procedural requirements for removal and this Court 22 has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1332. 23 1. 24 of Dana A. Ferestien are true and correct copies of the pleadings, orders, and all other papers 25 Pursuant to 28 U.S.C. 1446(a) and (b), attached as Exhibit A to the Declaration ILLINOIS UNION INSURANCE COMPANY, ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, and DOES 1 THROUGH 20, INCLUSIVE, Respondents. NOTICE OF REMOVAL BY DEFENDANT ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY NO. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

NOTICE OF REMOVAL BY DEFENDANT ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY - 1

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Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, Washington 98101-2380 (206) 628-6600

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obtained by Endurance American Specialty Insurance Company through service or otherwise in this action, including the following: A. B. C. D. E. F. Petition to Stay Arbitration and for Injunctive Relief dated March 30, 2012 (Petition); Order Setting Civil Case Schedule; Case Information Cover Sheet and Area Designation; Summons; Motion for Temporary Restraining Order and Order to Show Cause Re Staying Arbitrations and Permanent Injunction; Declaration of Chance Hodges Re Motion to Stay Arbitration and for Injunctive Relief (with Exhibits A-D); and Minute Order.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. G.

II. REMOVAL IS PROPER BECAUSE THIS COURT HAS SUBJECT MATTER JURISDICTION PURSUANT TO 28 U.S.C. 1332 Diversity of Citizenship Exists. 2. As alleged in the Petition, Pacific West Securities, Inc. (Pacific West) is a

corporation organized and existing under the laws of the State of Washington, with its principal place of business at 555 S. Renton Village Place, Suite 700, in Renton, Washington. See Declaration of Dana Ferestien, Exhibit A, Petition 1. 3. Respondent Illinois Union Insurance Company ( ACE) has not been served and

has not appeared in the present matter. ACE, however, has consented to removal as evidenced by the written, signed consent that is also being filed with the Court. ACE is a corporation organized under the laws of Illinois with its principal place of business in Chicago, Illinois. Under 28 U.S.C. 1332(c)(1), ACE is not a citizen of the State of Washington.

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Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, Washington 98101-2380 (206) 628-6600

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4.

Respondent Endurance has not been served and has not appeared in the present

matter.1 Endurance is a corporation organized under the laws of Delaware with its principal place of business in New York, New York. Pursuant to 28 U.S.C. 1332(c)(1), Endurance is not a citizen of the State of Washington. 5. Because petitioner is a citizen of the State of Washington, and respondents are not

citizens of Washington, complete diversity of citizenship exists. B. The Amount-In-Controversy Requirement Is Satisfied. 6. This Court has original jurisdiction over this action under 28 U.S.C. 1332(a), as

diversity of citizenship exists and the amount in dispute is in excess of $75,000, exclusive of interest and costs. 7. The insurance coverage arbitrations that are the subject of the Petition arise out of

a FINRA action against Pacific West. In the FINRA action, there are 42 claimants who each allege to have made investments ranging from $10,000 to $1.8 million and who each seek damages for the loss of a substantial portion of those investments. See Declaration of Dana Ferestien, Exhibit B, Amended Statement of Claim, 9-44. 8. Pacific West has tendered the FINRA action to both ACE and Endurance for

defense and indemnity under their respective policies. Notably, the Endurance policy is excess of ACEs primary policy which has a limit of $1 million. Pacific West would not have tendered to Endurance unless it believed that the FINRA action sought damages in excess of ACEs $1 million primary limit.

Counsel for Endurance did attend a hearing before the ex parte department of the King County Superior Court on March 30, 2012 in response to email notice received the same day from Pacific West. Pacific West requested entry of a temporary restraining order staying the pending insurance coverage arbitrations. Endurance objected to the request because of insufficient notice, and the ex parte commissioner denied Pacific Wests request. See Declaration of Dana A. Ferestien, Exhibit A, Minute Order. NOTICE OF REMOVAL BY DEFENDANT ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY - 3
3392542.1 Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, Washington 98101-2380 (206) 628-6600

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III. ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY HAS SATISFIED THE PROCEDURAL REQUIREMENTS FOR REMOVAL 9. Pacific West filed the Petition on March 30, 2012. On information and belief,

3 neither Endurance nor ACE has been served with the Summons or Petition. Although consent to 4 removal is not required from unserved defendants (see Knowles v. Lincoln National Life 5 Insurance Co., et al., 279 Fed. Appx. 432 (9th Cir. 2008)), Endurance has obtained and is filing 6 signed, written consent from ACE. 7 10. 8 district and division embracing the place where such action is pending. See 28 U.S.C. 9 1441(a); see also 28 U.S.C. 128(b) and Local Rule CR 5(e)(1). 10 11. 11 upon petitioners counsel, and a copy is being filed with the clerk of the Superior Court of 12 Washington for King County. 13 Having fulfilled the statutory requirements for removal, respondent Endurance American 14 Specialty Insurance Company respectfully removes this action from the Superior Court of 15 Washington for King County to this Court. By seeking removal, respondent Endurance 16 American Specialty Insurance Company does not waive any defenses, including but not limited 17 to lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process. 18 DATED this 2nd day of April, 2012. 19 20 21 22 23 24 25 s/ Dana A. Ferestien Dana A. Ferestien, WSBA #26460 Attorneys for Respondent Endurance American Specialty Insurance Company Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: (206) 628-6600 Fax: (206) 628-6611 Email: dferestien@williamskastner.com Pursuant to 28 U.S.C. 1446(d), a copy of this Notice of Removal is being served Venue is proper because this district encompasses King County, Washington, the

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CERTIFICATE OF SERVICE I hereby certify that on April 2, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, and I hereby certify that I caused a true and correct copy

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s/ Dana A. Ferestien Dana A. Ferestien, WSBA #26460 Attorneys for Respondent Endurance American Specialty Insurance Company Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: (206) 628-6600 Fax: (206) 628-6611 Email: dferestien@williamskastner.com of the foregoing document to be delivered to the following counsel of record in the manner indicated: Counsel for Petitioner: Patrick L. Hinton, WSBA #31473 Golbeck Roth Financial Services Lawyers, PLLC 1001 Fourth Avenue, Suite 3200 Seattle, WA 98154 Phone: (206) 467-7026 Fax: (206) 343-6234 Email: phinton@golbeckroth.com Via Legal Messenger (delivery on 4/2/12) Via electronic mail Via U.S. Mail Via Facsimile Via Overnight Courier

NOTICE OF REMOVAL BY DEFENDANT ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY - 5

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Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, Washington 98101-2380 (206) 628-6600