United States District Court, S.D. Mississippi, Southern Division
WALTER THOMAS, JR. PLAINTIFF
ALLSTATE VEHICLE & PROPERTY INSURANCE COMPANY, DEFENDANTS
ORDER DENYING MOTION TO STRIKE AND/OR REMAND
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  Motion to Strike and/or Remand filed by
Plaintiff Walter Thomas, Jr., requesting that the Court
strike certain defenses raised by Defendant Allstate Vehicle
& Property Insurance Company in its Answer, or, in the
alternative, remand this action to state court. Defendant
Allstate has responded to the Motion, but Thomas has not
filed a reply and the time for doing so has expired. Having
considered the submission of the parties and the relevant
law, the Court finds that neither remand nor striking
Allstate's defenses is warranted.
Thomas instituted this action in the Circuit Court of Jackson
County, Mississippi, against Defendants Allstate, Virginia
Conn d/b/a Ginny Conn Agency, Tyler Conn,  and multiple
fictitious defendants arising out of a dispute over insurance
coverage. According to the allegations of the Complaint and
the exhibits thereto, Thomas owned certain property located
in Mississippi, which property was insured by an Insurance
Contract with Defendant Allstate.
January 2016, Thomas came to the property to mow the yard and
discovered that there had been a fire at the property. He
alleges that “[a]s a result of the fire, [he] incurred
damage to the property in excess [of] $40, 000.00.”
(Compl. 3 (¶13), ECF No. 13-1).
Thomas contends that Defendants have “refused to make
any payment to Plaintiff as required under the Insurance
Contract” and that “Defendants' refusal to
make adequate payment to Plaintiff was made without a
reasonable basis in fact or law” and amounts to bad
faith. (See Id. at 4-5 (¶¶ 20-22)). He
requests that the Court “enter a declaratory judgment,
that Defendants must pay policy limits to Plaintiff herein,
in order to satisfy the damages sustained by Plaintiff in the
underlying incident.” (Id. at 6 (¶28)).
He also makes claims pursuant to Mississippi state law for
breach of contract, breach of the implied covenant of good
faith and fair dealing, and bad faith.
timely removed the action to this Court on March 9, 2017, on
the basis of diversity. See 28 U.S.C. §§
1332, 1441, 1446. Allstate argues that the Court has
jurisdiction because “there is complete diversity of
citizenship between the proper parties” and the amount
in controversy exceeds $75, 000. (See Notice of
Removal 2, ECF No. 1). Thomas and the Conn Defendants are
Mississippi citizens, and Allstate is an Illinois citizen.
However, Allstate states that the Court should disregard the
Conn Defendants' citizenship because Thomas improperly
joined them in the state court action. In response,
Thomas filed the pending Motion to Strike and/or Remand. The
Court discusses Thomas' arguments for remand and for
striking Allstate's defenses in turn below.
Motion to Remand
improper joinder doctrine constitutes a narrow exception to
the rule of complete diversity. The purpose underlying the
improper joinder inquiry is to determine whether or not the
in-state defendant was properly joined.” Cuevas v.
BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th
Cir. 2011) (citations, quotations marks, and brackets
omitted). “To establish improper joinder, the removing
party must demonstrate either: ‘(1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the
plaintiff to establish a cause of action against the
non-diverse party in state court.'” Id.
the second way is before the Court in this action. Thus, the
Court must determine whether Allstate “has demonstrated
that there is no possibility of recovery by [Thomas] against
[the Conn Defendants], which stated differently means that
there is no reasonable basis for th[is C]ourt to predict that
[Thomas] might be able to recover against” those
Defendants. See Id. “‘[T]here
must be a reasonable possibility of recovery, not
merely a theoretical one.'” See Kling
Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th
Cir. 2009) (citation omitted) (emphasis in original).
Conclusory and speculative allegations will not suffice to
preclude a determination of improper joinder. See,
e.g., Garcia v. Premier Home Furnishings, No.
2:12CV167-KS-MTP, 2013 WL 6001345, at *5 (S.D.Miss. Nov. 12,
Allstate has not mis-characterized “the standard for
improper joinder[, ]” (Thomas Mem. 7, ECF No. 9), but
articulated the proper standard in its  Notice of Removal.
(See Id. at 4). Thomas is also incorrect that
Allstate is trying to improperly shift the burden of proof on
a remand issue by arguing that Thomas' conclusory
allegations are insufficient to state a claim against the
Conn Defendants. If the Court were to accept Thomas'
argument, any plaintiff could overcome a properly supported
claim of fraudulent joinder with conclusory allegations
against a non-diverse defendant in his complaint, which is
not the law. See, e.g., Walden v. Am. Gen.
Life, 244 F.Supp.2d 689, 692 (S.D.Miss. 2003);
Garcia, 2013 WL 6001345, at *5; Rogers v.
Shelter Mut. Ins. Co., No. 3:05 CV 57 WS, 2006 WL
839551, at *4 (S.D.Miss. Mar. 30, 2006).
reviewed the Complaint, the Court agrees with Allstate that
all of Thomas' causes of action stem from the denial of
Thomas' insurance claim. The Court further agrees that
there is an absence of facts to support a cognizable cause of
action against the insurance agents, the Conn Defendants - as
opposed to the insurance company, Allstate - based on that
denial of claim, despite Thomas' attempt to lump all
Defendants together. See, e.g., Donald v.
Arrowood Indem. Co., No. 2:10CV227KS-MTP, 2010 WL
4853290, at *7 (S.D.Miss. Nov. 23, 2010) (“a plaintiff
cannot rely upon general, conclusory, and/or collective
allegations against defendants in opposing a claim of
improper joinder”). Allstate has met its burden of
proof in establishing fraudulent joinder.
event, none of Thomas' claims against the Conn Defendants
are cognizable under Mississippi law, even if Thomas had made
non-conclusory allegations against those Defendants. There is
no allegation that the Conn Defendants were parties to the
insurance contract, and the policy attached to the Complaint
establishes otherwise, eliminating the possibility of any
breach of contract claim against the Conn Defendants.
See, e.g., Rhodes v. State Farm Fire & Cas.
Co., No. 108CV674-HSO-RHW, 2009 WL 563876, at *3-4
(S.D.Miss. Mar. 4, 2009); Smith v. Union Nat'l Life
Ins. Co., 286 F.Supp.2d 782, 787 (S.D.Miss. 2003);
Burchfield v. Foremost Ins. Grp., No.
4:16-CV-00172-DMB-JMV, 2017 WL 1167278, at *4 (N.D. Miss.
Mar. 28, 2017). Likewise, Thomas has no claim for breach of
the implied covenant of good faith and fair dealing or bad
faith against the Conn Defendants. See, e.g.,
Rhodes, 2009 WL 563876, at *4; Smith, 286