United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING MOTION TO SEVER AND TO PARTIALLY
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the Motion to Sever and Motion to
Partially Remand  filed by Defendant, Allstate Insurance
Company (“Allstate”). Plaintiffs Tevin White and
Karen White (collectively, “the Whites”) did not
file a response to the Motion. Having considered the Motion
and the applicable law, the Court is of the opinion that the
Motion should be granted.
Whites commenced this action in the County Court of Jackson
County, Mississippi, naming Kim Emerson and Allstate as
Defendants. The claims against Emerson are for damages
resulting from a vehicular accident. The claims against
Allstate are based on contract and the claims handling
process. Allstate argues that the claims are wholly distinct,
thus entitling Allstate to a severance. Allstate further
argues that once the claims are severed, this Court has
diversity jurisdiction over the claims against them as the
Whites are citizens of Mississippi and Allstate is
incorporated in Delaware and has its principal place of
business in Illinois.
argues that the Whites fraudulently misjoinded their claims
to avoid removal to federal court. The Fifth Circuit has
ruled that the misjoinder of plaintiffs cannot be used to
circumvent diversity jurisdiction. In re: Benjamin Moore
& Co., 309 F.3d 296, 298 (5th Cir. 2002). This Court
utilizes Mississippi Rule of Civil Procedure 20 in a
fraudulent misjoinder analysis. See Hampton v. State Farm
Mut. Auto. Ins. Co., No. 3:15-CV-576-CWR-FKB, 2015 WL
11233043, at *2-3 (S.D.Miss. Sept. 24, 2015). Joinder is
improper unless both prongs of Rule 20(a) are satisfied.
20(a) states that joinder is proper when: (1) the right to
relief arises out of the same transaction, occurrence, or
series of transactions or occurrences, and (2) a question of
law or fact common to all defendants will arise in the
action. Miss. R. Civ. P. 20(a). In a factually similar case,
the Supreme Court of Mississippi, applying Rule 20(a), ruled
a third party tort claim against an individual and a first
party breach of contract and bad faith claim against the
individual's insurance company involved distinct
litigable events. See Hedgwood v. Williamson, 949
So.2d 728, 731 (Miss. 2007). The federal courts of
Mississippi have applied the Hedgwood analysis to
matters of fraudulent misjoinder. See Hampton, 2015
WL 11233043, at *2-3; Tolbert v. State Farm Mut. Auto.
Ins. Co., No. 3:15-CV-0042, 2015 WL 3450524, at *2 (N.D.
Miss. May 29, 2015).
Whites' claim against Emerson is for damages resulting
from the accident, a claim based on torts. The Whites'
claim against Allstate is based on contract arising out of
the subsequent claims handling process. These claims are
distinct litigable events. Therefore, the claims should be
severed the diverse claim from the non-diverse claim, the
Court may remand one while retaining jurisdiction over the
other. See, e.g., Cartwright v. State Farm Mut.
Auto Ins. Co., No. 4:14-cv-00057-GHD-JMV, 2014 WL
6959045, at *8 (N.D. Miss. Dec. 8, 2014). “The district
courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interest and costs and is between
citizens of different States.” 28 U.S.C. §
1332(a)(1). Therefore, the claim by the Whites, Mississippi
citizens, against Emerson, a Mississippi citizen, should be
remanded to state court as no diversity of citizenship
exists. However, the claim by the Whites against Allstate, a
Delaware corporation, should remain in this
IS, THEREFORE, ORDERED AND ADJUDGED that the 
Motion to Sever and Motion to Partially Remand filed by
Defendant Allstate Insurance Company is
GRANTED. The above styled and numbered
cause, insofar as it pertains to the claims against Defendant
Kim Emerson, should be and is hereby REMANDED TO THE
COUNTY COURT OF JACKSON COUNTY, MISSISSIPPI. The
claims against Allstate will remain in this Court.
IS FURTHER ORDERED AND ADJUDGED that a certified
copy of this order of remand shall be immediately mailed by
the Clerk to the clerk of the state court pursuant to 28
U.S.C. § 1447(c).