United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION TO
REMAND TO STATE COURT AND DEFER ANSWER TO
before the Court is a motion to remand to state court and
defer answer to counterclaim  filed by Plaintiff Leon
Brandon ("Plaintiff'). Upon due consideration, the
Court finds that the motion is well taken.
I. Factual and
23, 2016, Plaintiff Leon Brandon ("Plaintiff) filed a
complaint in the Circuit Court of Monroe County, Mississippi,
against Defendants Shelter Mutual Insurance Company
("Shelter") and Bill E. Morgan ("Morgan")
(collectively, "Defendants") to recover for fire
loss and smoke damage to his dwelling and personal property.
It is undisputed that Plaintiff purchased an insurance policy
from Shelter that provided insurance coverage on his home
within the terms, conditions, and exclusions contained in the
policy and that the subject policy was in force at the time
of the fire. Plaintiff asserts the following claims against
Defendants: breach of contract; breach of the warranty of
good faith and fair dealing; gross negligence in not
providing a timely settlement in Plaintiffs time of loss;
willful, wanton, and intentional deception; and bad-faith
delay in processing of the claim.
alleges that on or around December 22, 2015, he arrived at
his home and discovered smoke billowing inside. Plaintiff
further alleges that he called the fire department, members
of which arrived on the premises, ensured there was no
remaining fire, and vented the dwelling to remove any smoke.
Plaintiff submitted a claim to Shelter, claiming that his
dwelling and personal property suffered considerable fire and
smoke damage to the point that the dwelling was
uninhabitable. Plaintiff avers that he has repeatedly
contacted Shelter and his Shelter insurance agent, Morgan,
concerning his claim, but that as of the date of his
complaint, approximately five months after he submitted the
claim, Shelter had not submitted payment on the claim.
August 5, 2016, Shelter timely removed this case to this
Court on the basis of diversity jurisdiction and filed an
answer, affirmative defenses, and counterclaim for a
declaratory judgment . On August 23, 2016, Plaintiff filed
the present motion to remand the case to state court and
defer answer to counterclaim . Shelter filed a response;
Plaintiff filed a reply; and Shelter filed a supplement to
its response after seeking and being granted leave to do
The matter is now ripe for review.
Standard of Review
removal statute provides in pertinent part:
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a).
may be remanded upon a motion filed within thirty days after
the filing of the notice of removal on any defect except
subject matter jurisdiction, which can be raised at any time
by any party or sua sponte by the Court. See
Wachovia Bank, N.A. v. PICC Prop. & Cos. Co. Ltd.,
328 F.App'x 946, 947 (5th Cir. 2009); see also
Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157
L.Ed.2d 867 (2004) (citing Mansfield, C. & L.M.R. Co.
v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462
(1884)). "If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded." 28 U.S.C.
§ 1447(c); see Fed. R. Civ. P. 12(h)(3)
("If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action."). Any "doubts regarding whether removal
jurisdiction is proper should be resolved against federal
jurisdiction." Acuna v. Brown & Root Inc.,
200 F.3d 335, 339 (5th Cir. 2000).
Analysis and Discussion
can remove the action to this Court on the basis of diversity
jurisdiction if this Court would have had original
jurisdiction over the action. See Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013)
(citing 28 U.S.C. § 1441(a)). Federal diversity
jurisdiction requires complete diversity between all
plaintiffs and all defendants and an amount in controversy
that exceeds $75, 000.00. See 28 U.S.C. §
1332(a). Shelter, as the removing party seeking to invoke
federal diversity jurisdiction, bears the burden of
establishing both that the parties are diverse and that the
amount in controversy exceeds $75, 000. See 28
U.S.C. § 1332(a); Garcia v. Koch Oil Co. of Tex.
Inc., 351 F.3d 636, 638 (5th Cir. 2003) (citing St.
Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253
(5th Cir. 1998)).
contends that removal is not appropriate because there is
lack of complete diversity of citizenship among the
parties. It is undisputed that complete diversity
exists between Plaintiff, a citizen of Mississippi, and
Shelter, which is incorporated in and has its principal place
of business in Missouri and thus is a citizen of Missouri.
However, Plaintiff contends that Morgan's presence as a
Defendant destroys complete diversity, as both Plaintiff and
Morgan are citizens of Mississippi. Plaintiff argues that
Morgan is the agent listed in the subject insurance policy
and that he is made a party to this legally binding contract
by the language of the subject policy. Plaintiff maintains
that Morgan failed to meet his obligation under the insurance
contract of offering information to Plaintiff concerning the
subject policy. Plaintiff further argues that the allegations
that Shelter and Morgan were "apathetic, inattentive,
and unsympathetic" support a claim of gross negligence
against both Defendants. Plaintiff maintains that Mississippi
law imposes a standard of care on insurance agents to use the
degree of diligence and care which a reasonably prudent
person would exercise in the transaction of his own business,
that Plaintiffs allegations in the complaint demonstrate
Morgan did not work on Plaintiffs claim, and that this
inaction constitutes gross negligence to a degree of malice
and reckless disregard for the rights of Plaintiff.
Therefore, Plaintiff maintains Morgan is a proper party to
this case against whom Plaintiff has alleged a cognizable
cause of action and that removal is improper.
argues that Morgan was improperly joined in order to destroy
diversity jurisdiction and thus that Morgan's citizenship
should be disregarded in the diversity jurisdiction
determination. Shelter further argues that Plaintiff attempts
to impose liability upon Morgan merely because he is a
Shelter sales agent, and that Mississippi law bars an action
for contractual liability by an agent for a disclosed
principal or from an agent, as a non-party to the contract,
for breach of the duty of good faith and fair dealing with
regard to the performance of the contract. Shelter further
argues that Plaintiff has not stated a cognizable gross
negligence claim against Morgan because Mississippi law does
not allow an action against an insurance adjuster, agent, or
other similar entity for simple negligence in connection with
his work on a claim. Shelter further argues that Plaintiff
fails to allege any facts supporting gross negligence,