United States District Court, N.D. Mississippi, Oxford Division
JERRY D. MILLS, JR; and, STACY S. MILLS, Plaintiffs,
WHITE CONTRACTING, INC.; SHIRLEY TRUCKING, LLC; NATIONAL FIRE INSURANCE COMPANY OF HARTFORD; and JOHN DOES 1-5, Defendants.
ORDER GRANTING REMAND
DEBRA M. BROWN, District Judge.
Plaintiffs Jerry D. Mills, Jr., and Stacy S. Mills brought this action in the Circuit Court of Tate County, Mississippi, against Defendants White Contracting, Inc., Shirley Trucking, LLC, and National Fire Insurance Company of Hartford ("National Fire"). Doc. #2. Plaintiffs assert claims for breach of contract and bad faith arising from an alleged refusal by White Contracting, Shirley Trucking and/or National Fire to provide workers compensation benefits to Jerry Mills. Id. National Fire removed the action to this federal district court based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Doc. #1. Plaintiffs have filed a motion to remand on grounds that this Court lacks subject matter jurisdiction because: (1) there is no complete diversity among the parties; and (2) 28 U.S.C. § 1446(b) bars removal. Doc. # 9. For the reasons below, Plaintiffs' motion to remand is granted.
Relevant Allegations and Procedural Posture
Prior to April 7, 2011, White Contracting awarded a contract to Shirley Trucking to assist with the cleanup of right-of-ways along Interstate 55 in Tate County, Mississippi ("Interstate 55 job"). Doc. #2 at ¶ 7. In accordance with an agreement between White Contracting and Shirley Trucking, White Contracting withheld workers compensation premiums from checks made payable to Shirley Trucking in exchange for securing workers compensation insurance for the employees of Shirley Trucking. Id. at Ex. B. White Contracting secured a workers compensation insurance policy from National Fire for the period September 30, 2010, to September 30, 2011. Id. at Ex. A. Shirley Trucking represented to its employee Jerry that he would be provided workers compensation coverage during the Interstate 55 job. Id. at ¶ 8.
On April 7, 2011, Jerry, while working on the Interstate 55 job, was injured when a coworker negligently caused a tree to collide with him. Doc. #2 at ¶ 9. "Almost immediately" after the injury, Jerry made a claim for workers compensation benefits pursuant to the agreement between White Contracting and Shirley Trucking. Id. at ¶ 10. Shortly thereafter, White Contracting and Shirley Trucking became aware of the injury and Jerry's request for benefits. Id. at ¶ 10. National Fire, White Contracting, and/or Shirley Trucking denied the claim for benefits. Id. White Contracting subsequently refunded the workers compensation premiums to Shirley Trucking. Id.
On September 20, 2011, Plaintiffs filed their original complaint in the Circuit Court of Tate County, Mississippi, against Defendants White Contracting, Shirley Trucking, and John Does 1-5. Doc. #4 at 5. Plaintiffs alleged that, as a result of Defendants' conduct, Jerry incurred financial loss in the form of medical expenses, loss of income and income earning capacity, loss of property, and pain and suffering. Id. at 9. Additionally, Plaintiffs alleged that Stacy Mills, Jerry's wife, suffered loss of consortium, including a loss of Jerry's love and affection. Id.
On June 22, 2012, Jerry filed a Petition to Controvert with the Mississippi Workers' Compensation Commission ("MWCC") naming White Trucking as contractor-employer and National Fire as insurance carrier. Doc. #13-5. On October 17, 2012, the Circuit Court of Tate County voluntarily dismissed, without prejudice, "all tort claims against Defendants, except those sounding in bad faith, " and stayed the case pending resolution of Plaintiffs' litigation before the MWCC. Doc. #13-8.
Following resolution of the MWCC litigation, on December 16, 2013, Plaintiffs filed their first amended complaint against White Contracting, Shirley Trucking and National Fire for breach of contract and bad faith refusal to provide workers compensation benefits. Doc. #2.
On January 31, 2014, National Fire filed a Notice of Removal, alleging that this Court has jurisdiction over the action pursuant to diversity of citizenship under 28 U.S.C. § 1332(a). Doc. #1. In its notice, National Fire argues that Plaintiffs cannot prevail on either cause of action against Shirley Trucking and, consequently, under the doctrine of improper joinder, there is complete diversity of citizenship. Id. at 4-15.
On February 5, 2014, approximately one week after this case was removed, the state court entered an order of dismissal as to White Contracting. Doc. #15-4.
On March 31, 2014, Plaintiffs filed a motion to remand, arguing that this Court lacks subject matter jurisdiction because: (1) Shirley Trucking is a properly joined defendant that defeats complete diversity; and (2) 28 U.S.C. § 1446(b) bars removal when, as in the present case, one year has passed since initiation of the suit. Doc. #9. Because the Court finds that Shirley Trucking's presence in the action defeats complete diversity, it will not consider whether § 1446(b) applies.
Diversity and ...