United States District Court, S.D. Mississippi, Southern Division
JAMES A. DELAUGHTER PLAINTIFF
CELESTE M. DUFRENE, ANTONIO R. MADDEN, and USAA CASUALTY INSURANCE COMPANY DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
MATTER COMES BEFORE THE COURT on the  Motion to Remand by
USAA Casualty Insurance Company, one of the defendants in
this case. The removing defendant, Celeste Dufrene, has filed
a response, and USAA has replied. After due consideration of
the pleadings, briefs and arguments of counsel and the
relevant legal authorities, the Court finds that it does not
have jurisdiction of this cause, and it should therefore be
remanded to the Circuit Court of Jackson County, Mississippi.
USAA's request for attorneys' fees and costs is
case concerns an automobile accident allegedly caused by two
underinsured drivers. Plaintiff Delaughter seeks damages
against the drivers, plus underinsured driver insurance
benefits from his own insurer, USAA. USAA states that counsel
for Dufrene contacted USAA's counsel and requested
consent to removal. USAA responded that it did not and would
not consent. (USAA Mem. 3, ECF No. 4). Nevertheless, Dufrene
removed the case, asserting that USAA's consent was not
necessary; it had been improperly joined because the
plaintiff's claims against USAA are separate and distinct
from the plaintiff's claims against the tortfeasors. USAA
now seeks remand on the grounds that the removal was
defective because USAA was properly joined, and therefore its
agreement to removal was necessary under 28 U.S.C. §
served defendants must join in the petition for removal
within thirty days of service on the first defendant, and if
consent of all served defendants is not timely obtained, the
removal is procedurally defective. Doe v. Kerwood,
969 F.2d 165, 167, 169 (5th Cir. 1992). USAA did not and does
not consent to removal, and it argues that the removal was
therefore procedurally defective for failure to comply with
the rule of unanimity.
order to show that the removal was not procedurally
defective, Dufrene must demonstrate that one of the three
exceptions to the rule of unanimity applies: (1) USAA is an
improperly or fraudulently joined defendant; (2) USAA is a
nominal or unnecessary defendant; or (3) USAA had not been
served by the time of removal. See Jones v. Watts,
No. 5:10-CV-189-DCB-JMR, 2011 WL 2160915, at *5 (S.D.Miss.
June 1, 2011) (citations omitted). Dufrene argues that the
improper joinder exception applies, because the underinsured
motorist claim against USAA does not arise from the same
occurrence or litigable event as the negligence claim against
Dufrene and the driver of the third vehicle. Additionally,
Dufrene argues that the allegations against USAA are
conclusory and do not state a plausible claim for relief.
Court first finds that the allegations against USAA state a
plausible claim for relief. The plaintiff alleges that 1) the
tortfeasors were underinsured; 2) USAA provided underinsured
motorist coverage to the plaintiff; and 3) USAA had not
tendered underinsured motorist benefits to the plaintiff.
(Compl. 2, ECF No. 1-2). This is sufficient factual content
to allow the Court to draw a reasonable inference that USAA
is liable for the misconduct alleged. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Dufrene supports her argument regarding joinder with cases in
which the plaintiff brought bad faith and breach of contract
claims against the insurer in addition to claims against the
tortfeasor. See Hegwood v. Williamson, 949 So.2d 728
(Miss. 2007); Tolbert v. State Farm Mut. Auto. Ins.
Co., No. 3:15-CV-0042, 2015 WL 3450524 (N.D. Miss. May
29, 2015). This case is distinguishable because there are no
bad faith or breach of contract claims against USAA. Dufrene
argues that the Court should infer such claims because the
plaintiff could not mean anything else by his allegations
that USAA did not tender benefits, and by his request for
punitive damages against all defendants. But in the
Court's view, an allegation that no underinsured benefits
have been tendered by USAA is not an assertion of bad faith
or even necessarily a breach of contract. As USAA notes, the
plaintiff must prove fault and damages against the
tortfeasors before it can be known whether or to what extent
underinsured benefits are due to the plaintiff. That will be
accomplished at the trial of this case.
circumstances of this case are similar to those in Cook
v. OneBeacon American Insurance Company, No.
2:13CV305-HSO-RHW, 2014 WL 6388458 (S.D.Miss. Nov. 14, 2014),
where the court stated that the law in Mississippi was that
“[i]n uninsured motorist cases, the alleged uninsured
tortfeasor and an uninsured motorist insurer may be joined in
an action as co-defendants.” Cook 2014 WL
6388458, at *3 (citing Heflin v. Merrill, No.
2012-CA-00663-COA, 2013 WL 5614290, at *1 (Miss. Ct. App.
Oct. 15, 2013); Leitch v. Miss. Ins. Guar.
Ass'n, 27 So.3d 405, 406 (Miss. Ct. App. 2009)). The
Cook court noted that the plaintiff's right to
relief from both the tortfeasor and the insurer arose from
the collision, and a common question of law was whether the
plaintiff was legally entitled to recover against the
this plaintiff's right to recover from USAA will depend
on his right to recover from the tortfeasors, the Court
concludes that USAA was properly joined in this action. USAA
did not consent to the removal, and therefore the case must
be remanded to the state court.
requests an award of costs and expenses, including
attorney's fees, against Dufrene for the necessity of
filing its Motion to Remand. The removal statute provides
that, “[a]n order remanding the case may require
payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” 28
U.S.C. § 1447(c). “Absent unusual circumstances,
courts may award attorney's fees under § 1447(c)
only where the removing party lacked an objectively
reasonable basis for seeking removal. Conversely, when an
objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin ...