United States District Court, S.D. Mississippi, Northern Division
CAPITOL BODY SHOP, INC. PLAINTIFF
ALLSTATE INSURANCE COMPANY, WILLIAM EDWARD PERMENTER, and JOHN DOES 1-5 DEFENDANTS
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
THIS COURT is Defendant Allstate Insurance Company's
Motion to Dismiss Improperly Joined Defendant,
namely in-state William Edward Permenter (hereinafter
referred to as “Permenter”), whose presence in
this litigation would destroy diversity subject matter
jurisdiction under Title 28 U.S.C. § 1332 [Docket
no. 3]. Also, before this Court is Plaintiff
Capitol Body Shop, Inc.'s Motion to Remand
[Docket no. 11], the other side of
Defendant's argument, which asks this Court to return
this litigation to state court where it originated.
Plaintiff, Capitol Body Shop, Inc. (hereinafter referred to
as “Plaintiff” or “Capitol Body
Shop”) argues that Permenter, as a proper party,
belongs in this lawsuit, which, with him included, would be
antithetical to the jurisdictional strictures of 28 U.S.C.
§ 1332. For the reasons presented herein, this Court
GRANTS Allstate's Motion to Dismiss Improperly Joined
Defendant and, commensurately with this ruling, DENIES
Plaintiff Capitol Body Shop's Motion to Remand.
Capitol Body Shop, filed its action in Hinds County,
Mississippi Circuit Court on April 26, 2018, against
Allstate, Permenter, and John Does 1-5. Plaintiff is a
Mississippi corporation with its principal place of business
located in Jackson, Mississippi. Defendant Allstate is a
foreign insurance company incorporated in the State of
Delaware with its principal place of business located in the
State of Illinois. Permenter, Allstate's employee, is an
adult resident citizen of Lamar County, Mississippi. John
Does 1-5 are unidentified individuals, whose respective
citizenships purportedly are unknown. This Court, therefore,
ignores their “presence” on the jurisdictional
question. Title 28 U.S.C. § 1441(b)(1) explains,
“[i]n determining whether a civil action is removable
on the basis of the jurisdiction under section 1332(a) ...
the citizenship of defendants sued under fictitious names
shall be disregarded.” Chapman v. Kroger Ltd.
Partn., 3:11-CV-688 HTW-LRA, 2012 WL 775812, at *2
(S.D.Miss. Mar. 7, 2012).
Capitol Body Shop, in its Complaint, alleges the following
background facts: “8. On or about July 30, 2017,
Kenyata Wells' 2007 Chevrolet Impala was damaged. The
damages to the automobile were covered by Allstate Insurance
Company (hereinafter “Allstate”) policy
#995320445. Allstate opened claim #0469431324, and Defendant,
William Edward Permenter, was the senior staff adjuster
assigned to the claim. John Doe 1 was an adjuster working on
the claims team which was supervised by Defendant, William
Edward Permenter. The Allstate claims team operated as a
single unit in the adjustment of this claim with oversight of
the claim adjustment being performed by William Edward
Permenter. [Docket no. 3-1, p. 2-3].
Wells brought the vehicle to Capitol Body Shop, Inc.
(hereinafter “Capitol”) for an estimate of
repairs. In preparing its repair estimate, as per
Allstate's request, Capitol removed the rear bumper
cover, energy absorber, and tail lamp assemblies from the
automobile, and it was quickly realized that the vehicle was
a total loss. [Docket no. 3-1 at p. 3].
Allstate agreed with Capitol and declared the vehicle a total
After the vehicle was declared a total loss, Ms. Wells
desired to buy back the automobile from Allstate. [Docket no.
3-1 at p. 3].
When Ms. Wells decided to buy back the automobile, Capitol
reassembled the vehicle so that the vehicle could be driven
away. [Docket no. 3-1 at p. 3].
total, Capitol provided services in the amount of $953.10.
These charges include labor, administrative fees, and storage
charges. See Exhibit “A” attached hereto. [Docket
no. 3-1 at p. 3].
or about August 7, 2017, John Doe 1, a member of the Allstate
Claims unit contacted Frank McClure at Capitol, stating that
the vehicle needed to be released to Ms. Wells as soon as
possible. Following its usual procedures, Capitol did not
want to release the vehicle until it was paid for its
services. At that point, it was represented to Mr. McClure
that a check for full payment of Capitol's bill was being
sent via overnight delivery. Allstate asked that
Capitol release the vehicle to Ms. Wells once the check was
received. [Docket no. 3-1, pp. 3-4].
next day, Capitol received Allstate check #557289308 in the
amount of $953.10. See Exhibit “B” attached
hereto. Having no reason to believe that the check would be
dishonored, Capitol released the vehicle to Ms. Wells.
Capitol then deposited the subject check in the ordinary
course of business. [Docket no. 3-1 at p. 4].
or about August 9, 2017, the check was returned, and Capitol
was charged a $10.00 chargeback fee. Capitol was informed
that Eddie Permenter, as senior staff adjuster assigned to
the file, placed a stop payment order on the subject check.
[Docket no. 3-1 at p. 4].
After placing a stop payment order on the original check, Mr.
Permenter on behalf of Allstate sent a purported replacement
check (Allstate check #135432180) in the amount of $210.60 to
Capitol without any explanation for the action taken. See
Exhibit “C” attached hereto, Capitol did not
negotiate the replacement check. [Docket no. 3-1 at p.
Complaint, Plaintiff alleges the following causes of action
against all defendants: breach of contract; bad faith breach
of contract; breach of the duty of good faith and fair
dealing; and constructive fraud. See generally
[Docket no. 3-1]. Plaintiff's only direct allegation
against Permenter is that he is liable for constructive
August 3, 2018, Allstate filed its Notice of Removal [Docket
no.1] in this Court, which asserts that pursuant to 28 U.S.C.
§ 1332, this Court has original jurisdiction because
complete diversity of citizenship exists between the properly
joined parties, and the matter in controversy is in excess of
$75, 000, exclusive of interest and costs. The Notice of
Removal (hereinafter referred to as “Notice”)
acknowledges that Permenter is a Mississippi citizen;
however, the Notice asserts that Permenter is improperly
joined due to lack of any specific cognizable claim against
him in Plaintiff's Complaint.
thereafter filed its motion to dismiss Permenter as an
improperly joined defendant [Docket no. 4] and its memorandum
in support thereof on August 6, 2018. On August 30, 2018,
Plaintiff filed its Response in Opposition to Allstate's
Motion to Dismiss [Docket no. 10], along with its Motion to
Remand this matter to the Circuit Court of Hinds County,
Mississippi [Docket no. 11].