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Powelson v. Brashier

United States District Court, S.D. Mississippi, Eastern Division

September 5, 2018

JOE C. POWELSON PLAINTIFF
v.
ANNA BRASHIER, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE.

         This cause is before the court on the Motion to Remand filed by Joe C. Powelson (“Plaintiff”) on June 21, 2018 [4]. Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”) responded [8, 9], and Plaintiff filed a Reply [11]. Defendant Anna Brashier (“Brashier”) did not respond to the Motion to Remand. Having reviewed the motion and the record in this cause, as well as the applicable law, and otherwise being fully advised in the premises, the Court finds that the Motion to Remand should be granted in part and denied in part.

         I. Background

         This case arises from an automobile accident that occurred on September 10, 2015, wherein the Plaintiff, Joe C. Powelson was involved in a collision with Brashier. Before filing suit, Plaintiff made claims against Brashier's insurer and also made an underinsured motorist claim against Defendant State Farm. Plaintiff contends that State Farm issued a policy of insurance to Plaintiff's father-in-law with whom he resided, which policy Plaintiff believes provides coverage to him as a resident relative.

         On April 16, 2018, Plaintiff filed his Complaint against Brashier and State Farm in the Circuit Court of Jones County, Mississippi. See Ex. A. to Notice of Removal [1]. Plaintiff has asserted a negligence claim against Brashier, and several claims against State Farm, which include breach of contract, breach of duty of good faith and fair dealing, tortious breach of contract, and bad faith. On May 23, 2018, State Farm removed the case to this Court, claiming diversity jurisdiction under 28 U.S.C. § 1332. State Farm posits that diversity exists even though Plaintiff and Brashier are both citizens of Mississippi because Brashier was fraudulently joined. [1] at p. 3 ¶ VIII.[1]

         II. Discussion

         Plaintiff challenges the propriety of removal, arguing that the Defendant insurer has not met the burden of showing that removal was proper. This Court disagrees in part and finds that removal was proper as to State Farm.

         A. Standard for Removal

         Federal courts are courts of limited jurisdiction, whose jurisdiction is conferred by the Constitution or Congress. See Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012). “Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005). “The removing party bears the burden of showing [by a preponderance of the evidence] that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see also Nowlin v. United States, 81 F.Supp.3d 514, 524 (N.D. Miss. 2015) (noting that the “burden of proof falls on the party claiming jurisdiction, and the showing must be made by a preponderance of the evidence” and citing McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178 (1936) and Vantage Trailers v. Beall Corp., 567 F.3d 745 (5th Cir.2009)).[2]“Because removal raises significant federalism concerns, the removal statute is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008).

         B. Removal Based on Diversity

         For proper removal based on diversity of citizenship, the statute provides:

(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(b). The statute clearly states that removal is not proper if any of parties, who are properly joined as defendants, are citizens of the State in which such action is brought. However, simple “misjoinder” has never been the basis for ignoring the citizenship of the non-diverse party. Prior to the “fraudulent misjoinder” doctrine set forth in Tapscott v. MS Dealer Svc. Corp.,77 F.3d 1353 (11th Cir. 1996), the sole basis for disregarding the citizenship of a non-diverse party was “fraudulent joinder.” Palermo v. Letourneau Technologies, Inc., 542 F.Supp.2d 499, 511 (S.D.Miss. 2008). Here, jurisdiction appears to be proper but for the lack of ...


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