United States District Court, N.D. Mississippi, Greenville Division
JACQUELINE E. STANFORD and ROY STANFORD, SR. PLAINTIFFS
LIBERTY MUTUAL GROUP INC. a/k/a Liberty Mutual Insurance, WARD J. SIMPSON and JOHN DOE DEFENDANTS
M. BROWN UNITED STATES DISTRICT JUDGE.
the Court is Liberty Mutual Group Inc.'s motion to sever
and its motion to dismiss. Doc. #15; Doc. #18.
March 20, 2018, Jacqueline and Roy Stanford filed a complaint
in the Circuit Court of Bolivar County, Mississippi, against
Liberty Mutual Group Inc., Ward J. Simpson, and “John
Doe.” Doc. #2. The complaint alleges that the Stanfords
were injured when their car was struck by a vehicle driven by
Simpson, an uninsured driver, and that Liberty Mutual, the
insurer of the Stanfords' vehicle, has wrongfully failed
to pay uninsured driver benefits. Id. at
¶¶ 7, 18-19. A copy of the summons and complaint
was served on Liberty Mutual on March 26, 2018. Doc. #1-1 at
April 25, 2018, Liberty Mutual, invoking diversity
jurisdiction, removed the Stanfords' state court action
to this Court. Doc. #1. As grounds for the removal, Liberty
Mutual alleged that the amount in controversy exceeds $75,
000; that it, a citizen of Massachusetts, is diverse from the
Stanfords, who are citizens of Mississippi; and that Simpson,
another citizen of Mississippi, was “fraudulently
and/or egregiously misjoined as a Defendant and should be
disregarded for purposes of determining diversity
jurisdiction.” Id. at 1-2. Specifically,
Liberty Mutual argued that the Stanfords' “claim
against Ward is distinct from their breach of c ont rac t and
bad faith claims against Liberty.” Id. at 3.
5, 2018, United States Magistrate Judge Jane M. Virden
ordered Liberty Mutual to show cause why this case should not
be remanded for lack of jurisdiction. Doc. #9; see
Doc. #20. Eight days later, on June 13, 2018, Liberty Mutual,
citing 28 U.S.C. § 1446(b)(3), filed an “Amended
and/or Supplement to Notice of Removal” which reasserts
the argument that Simpson was fraudulently misjoined, and
adds a new argument that Simpson's citizenship should be
disregarded because Simpson was deceased when the original
state court complaint was filed. Doc. #10 at 3-6. Eight days
later, Liberty Mutual filed a motion seeking to sever Simpson
from this action and remand those claims brought against him.
Doc. #15; Doc. #16.
August 21, 2018, Liberty Mutual filed a motion to dismiss
Simpson. Doc. #18. On August 28, 2018, Judge Virden stayed
discovery and related proceedings pending resolution of the
pending motions. Doc. #20.
courts are “duty-bound to examine [their]
subject-matter jurisdiction sua sponte.” Burciaga
v. Deutsche Bank Nat'l Tr. Co., 871 F.3d 380, 384
n.4 (5th Cir. 2017). In evaluating the existence of
jurisdiction, this Court follows the rule that “[t]he
party seeking the federal forum has the burden of
establishing diversity jurisdiction.” Bynane v.
Bank of N.Y. Mellon for CWMBS, Inc. Asset-Backed Certificates
Series 2006-24, 866 F.3d 351, 356 (5th Cir. 2017).
Generally, jurisdiction in removal actions is determined by
reference to the grounds raised in the notice of removal or a
properly amended notice of removal. See Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 205 (2d Cir. 2001)
(“Where the notice fails to state a proper basis for
removal, a defendant generally will not be permitted to amend
the notice after the close of the thirty day removal
period.”). Accordingly, this Court must resolve two
questions-which of Liberty Mutual's two notices of
removal is operative, and whether the operative notice of
removal establishes jurisdiction.
Operative Notice of Removal
28 U.S.C. § 1446(b)(1), a defendant may file a notice of
removal “within 30 days after … receipt …
of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based.”
the case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt
by the defendant, through service or otherwise, of a copy of
an amended pleading, motion, order or other paper from which
it may first be ascertained that the case is one which is or
has become removable.
28 U.S.C. § 1446(b)(3).
“[w]ithin the [initial] thirty-day period prescribed by
§ 1446(b), a defendant may freely amend its notice of
removal.” Blakeley v. United Cable Sys., 105
F.Supp.2d 574, 578 (S.D.Miss. 2000). Once this time period
has passed, “a party may not amend its removal notice
… to assert a new ground for ...