United States District Court, S.D. Mississippi, Eastern Division
JOE C. POWELSON PLAINTIFF
ANNA BRASHIER, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE.
cause is before the court on the Motion to Remand filed by
Joe C. Powelson (“Plaintiff”) on June 21, 2018
. Defendant, State Farm Mutual Automobile Insurance
Company (“State Farm”) responded [8, 9], and
Plaintiff filed a Reply . 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.
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.
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 .
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.  at p. 3 ¶ VIII.
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.
Standard for Removal
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)).“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).
Removal Based on Diversity
proper removal based on diversity of citizenship, the statute
(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 ...