United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING THE MOTION  TO SEVER CLAIMS AND
PARTIALLY REMAND TO STATE COURT FILED BY DEFENDANT ALLSTATE
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  to Sever Claims and Partially
Remand to State Court filed by Defendant Allstate Insurance
Company. Plaintiff Jeremy Cherry did not file a response.
Having considered the Motion , the record, and relevant
legal authority, the Court is of the opinion that the Motion
 should be granted and the claims against Defendant Tony
Stallworth should be severed and remanded to the Circuit
Court of Jackson County, Mississippi. The Court finds it has
subject-matter jurisdiction over Plaintiff's claims
against Allstate, and those claims will proceed in this
Jeremy Cherry (“Plaintiff”) initiated this action
by filing a Complaint [7-1] on June 28, 2017, in the Circuit
Court of Jackson County, Mississippi, naming as Defendants
Tony Stallworth (“Stallworth”) and Allstate
Insurance Company (“Allstate”). See
Compl. [7-1]. According to the Complaint [7- 1], Plaintiff
sustained injuries to his neck and back in a motor vehicle
collision that took place on April 5, 2017, in Moss Point,
Mississippi. Id. at 2-3. Plaintiff asserts that the
collision was proximately caused by Stallworth, who was
operating the vehicle that struck Plaintiff's vehicle.
Complaint [7-1] further alleges that at the time of the
accident, although both Stallworth and Plaintiff were
uninsured, Plaintiff was residing with his grandmother,
Michelle Simpson (“Simpson”), who was insured by
Allstate with a policy providing $25, 000.00 per person and
$50, 000.00 per accident in uninsured motorist coverage.
Id. at 3. Plaintiff contends that, pursuant to Miss.
Code Ann § 33-11-103(b), he was an “insured”
under the uninsured motorist portion of the Allstate policy
as Simpson's grandson who resided with her at the time of
the accident. Id. at 5. On June 2, 2017, Allstate
denied Plaintiff's uninsured motorist claim for property
damage on grounds that Plaintiff's vehicle did not meet
the definition of an “insured auto” under the
policy. Id. at 6.
Complaint [7-1] alleges that Allstate's denial
constitutes bad faith and breached the implied covenant of
good faith and fair dealing. Id. at 10. Plaintiff
seeks to recover from Allstate for bodily injury and property
damages up to the limits of the uninsured motorist policy, as
well as punitive damages for bad faith. Id. at 5,
10. The Complaint [7-1] also raises state-law negligence
claims against Stallworth, seeking to recover damages
including property damage, medical treatment, pain and
suffering, mental and emotional distress, lost income, and
permanent disability. Id. at 3. The Complaint [7-1]
does not contain a demand for a specific sum of damages.
August 2, 2017, Allstate removed the case to this Court,
invoking diversity jurisdiction pursuant to 28 U.S.C. §
1332. Notice of Removal  at 1. Allstate contends that,
although complete diversity of citizenship is lacking on the
face of the Complaint [7-1], complete diversity nevertheless
exists because Plaintiff is a citizen of Mississippi and
Allstate is a Delaware corporation with its principal place
of business in Illinois. Id. at 3. Although
Plaintiff and Stallworth are both Mississippi citizens,
Allstate asserts that the Court should disregard
Stallworth's citizenship under the principles of
fraudulent misjoinder. Id. Allstate further claims
that the amount in controversy is met because it is in excess
of $75, 000.00, exclusive of interest and costs, given the
nature and extent of Plaintiff's allegations.
Id. at 4-5.
did not file a motion to remand the case within the required
thirty-day time limit. On August 4, 2017, Allstate filed the
present Motion  to Sever Claims and Partially Remand to
State Court. Plaintiff did not file a response, and the time
to do so has passed.
The misjoined claims against Defendant Stallworth will be
severed and remanded.
maintains that Plaintiff's breach of contract and bad
faith claims against it arise from distinct litigable events
which do not present common questions of law with
Plaintiff's tort claims against the non-diverse Defendant
Stallworth for allegedly negligently causing the motor
vehicle accident. See Def.'s Mem. Supp. Mot. 
at 3-4. According to Allstate, application of Mississippi
Rule of Civil Procedure 20 requires the Court to sever and
remand the claims against Stallworth to the state court.
Id. at 3-4.
this Court to have subject-matter jurisdiction over this
matter based on 28 U.S.C. § 1332(a), complete diversity
must exist among the parties. McLaughlin v. Miss. Power
Co., 376 F.3d 344, 353 (5th Cir. 2004). “The
concept of complete diversity requires that all persons on
one side of the controversy be citizens of different states
than all persons on the other side.” Id.
(quoting Harrison v. Prather, 404 F.2d 267, 272 (5th
misjoinder of defendants is not permissible to circumvent
diversity jurisdiction.” Cartwright v. Allstate
Mut. Auto. Ins. Co., No. 4:14-CV-00057-GHD, 2014 WL
6959045, at *6 (N.D. Miss. Dec. 8, 2014). “The concept
of ‘fraudulent misjoinder' or ‘egregious
misjoinder' was first recognized by the United States
Court of Appeals for the Eleventh Circuit in Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir.
1996).” Allen v. Kuhlman Corp., No.
3:08-CV-669-DPJ-JCS, 2009 WL 2382196, at *1 (S.D.Miss. July
31, 2009). “The theory has been adopted in the federal
courts for the Northern and Southern Districts of
Mississippi.” Id. (citing In re Benjamin
Moore & Co., 309 F.3d 296, 298 (5th Cir. 2002);
Nsight Tech., LLC v. Fed. Ins. Co., No.
3:09-CV-6-WHB-LRA, 2009 WL 1106868, at *2 (S.D.Miss. Apr. 23,
2009); Cooper v. AIG Claim Servs., Inc., No.
1:08-CV-168-SA-JAD, 2009 WL 279101, at *2 (N.D. Miss. Feb. 5,
2009); Palermo v. Letourneau Tech., Inc., 542
F.Supp.2d 499, 515 (S.D.Miss. 2008)).
the doctrine, the Court will not retain jurisdiction unless
the removing party demonstrates that joinder is
‘egregious' or ‘grossly improper.'”
Id. (quoting Cooper, 2009 WL 279101 at *2).
The question is whether the misjoinder of defendants was
“so egregious as to constitute fraudulent
joinder.” Tapscott, 77 F.3d at 1360; see
also Sullivan v. Direct Gen. Ins. Co. of Miss., No.
4:12-CV-97-SA-JMV, 2013 WL 5427992, at *3 (N.D. Miss. Sept.
27, 2013) (“[M]ere misjoinder will not suffice for
purposes of overlooking a non-diverse party's presence in
the action.”). “Where the joinder of defendants
constitutes an ‘improper and fraudulent joinder,