United States District Court, S.D. Mississippi, Northern Division
T. WINGATE, UNITED STATES DISTRICT JUDGE
THIS COURT are the following motions filed by the parties:
Motion to Remand by the Plaintiff, Jennifer Luckett
(“Luckett”) [Doc. 9]; Motion to Dismiss by the
Defendant, Barry Makamson (“Makamson”) [Doc. 16];
and the Motion to Enjoin filed by Allstate Indemnity Company
(“Allstate”) [Doc. 14] as an alternative to its
request that this Court accept jurisdiction over this action.
For the reasons set forth below, this Court denies
Luckett's Motion to Remand, and the remaining motions
will be addressed in light of the Court's ruling on the
Motion to Remand.
question presented herein is whether the plaintiff in this
cause improperly or fraudulently joined one or more
defendants to her lawsuit in order to defeat the dictates of
federal diversity jurisdiction, as required by Title 28
U.S.C. § 1332[1" name="FN1" id=
commencement of this action, Luckett was an adult resident of
Durant, Holmes County, Mississippi [Doc. 1-5].
was and is an insurance company which is incorporated in the
State of Illinois and which has its principal place of
business in the State of Illinois [Doc. 1, p. 2');">p. 2]. Allstate is
duly licensed in the State of Mississippi. Id.
is an adult resident of Greenwood, Mississippi and named in
the Complaint as “an agent, employee, and
servant” of Allstate [Doc 1-5 at p.1]. Prior to the
commencement of this action, Makamson was Luckett's
insurance agent [Doc. 1-5].
Jordan (“Jordan”) is an adult resident of
Gulfport, Harrison County, Mississippi [Doc. 1-5, p. 2');">p. 2].
Plaintiff Luckett names Jordan in the Complaint as “an
agent, employee, and servant” of Allstate. Allstate,
without objection, has identified Jordan as an adjuster.
Plaintiff has not challenged Allstate's description of
Jordan's job title.
March 11, 2016, Luckett commenced against
Allstate in the Circuit Court of Holmes County,
Mississippi, a civil action (“the first lawsuit”)
to recover damages for an alleged breach of contract and
alleged bad faith breach of contract [Doc. 1, ¶ 1]. This
lawsuit was structured on a fire loss and Allstate's
alleged refusal to honor the dictates of its policy, which
proceeds would pay fire damage costs to Luckett.
April 26, 2016, contending that this lawsuit has a federal
character under diversity jurisdiction, of Title 28 U.S.C.
§ 1332, Allstate removed this first cause of action
to the United States District Court for the Southern District
of Mississippi. The cause number was 3:16-cv-207-TSL-RHW,
with Judge Tom S. Lee presiding. Unhappy with the removal to
federal court, Luckett filed a Motion to Remand this
litigation back to state court. The parties then commenced a
§ 1332, the parties must be diverse in citizenship, a
condition for federal jurisdiction met by the
Complaint[5" name="FN5" id=
"FN5">5]. Section 1332 also requires that the
amount in controversy exceed the sum of $75, 000, exclusive
of costs and interest. This condition was not readily
ascertainable from the Complaint. To resolve the dispute,
Judge Lee first remarked by order that the Plaintiff's
Complaint was “hopefully ambiguous as to the amount of
damages plaintiff is seeking to recover” [Doc. 1 at
¶ 4]. Judge Lee added, though, that if Luckett filed an
affidavit agreeing not to accept a sum greater than $75, 000,
the court would grant Luckett's motion to remand and send
the case back to state court. Luckett then filed an affidavit
certifying that she would not accept an award greater than
$75, 000, and that her Complaint did not seek an award of
damages in excess of $75, 000 [Doc. 1, ¶ 2]. On June 3,
2016, Judge Lee remanded the first lawsuit to state court
based upon the Plaintiff's affidavit.
August 25, 2017, Luckett, now back in state court, filed a
second Complaint in the Circuit Court of Holmes, County,
Mississippi, against Allstate. She added two individuals:
Makamson and Jordan, identified by Luckett as agents,
employees and servants of Allstate (“the second
lawsuit”) [Doc. 1, ¶ 3].
second lawsuit asserts the exact same factual allegations and
claims against Allstate which are included in the first
lawsuit. Both lawsuits arose out of the exact same fire loss
and insurance claim which Allstate denied [Doc. 1, ¶ 3].
November 6, 2017, Luckett filed a motion to dismiss her first
lawsuit. On April 3, 2018, the state court granted
Luckett's motion to dismiss the first lawsuit. That left
pending only the second lawsuit [Doc. 1, ¶ 4].
Complaint filed in the second lawsuit, akin to the first
lawsuit, did not specify the amount of damages sought. As a
result, on March 29, 2018, Allstate served requests for
admissions, as authorized by Rule 36 of the Mississippi Rules of
Civil Procedure, asking Luckett to admit that the damages
sought were no greater than $75, 000 [Doc. 1, ¶ 4].
April 17, 2018, Luckett served her responses to the requests
for admissions. She denied that she was not seeking more than
$75, 000 in that second lawsuit, despite her previous
affidavit, wherein she had sworn that she would not seek such
an amount [Doc. 1, ¶ 4].
April 30, 2018, Allstate filed, in this Court, Allstate's
Second Notice of Removal [Doc. 1], again stating that this
Court has subject matter jurisdiction over this action which,
said Allstate, features complete diversity of citizenship
between the properly joined parties, and the requisite
jurisdictional amount in controversy being in excess of $75,
000, exclusive of interest and costs. Allstate predicated
this second removal upon 28 U.S.C. §
1446(b)(3), triggered by Luckett's responses to
the requests for admissions.
second lawsuit, Luckett seeks: damages for an insurance claim
with an alleged value in excess of $40, 000; an unspecified
amount of punitive damages; and an unspecified amount of
damages for anxiety, worry, mental and emotional distress,
and attorney's fees [Doc. 1-1].
second lawsuit alleges that Makamson and Jordan are citizens
of the State of Mississippi, a circumstance that may be fatal
to diversity of citizenship jurisdiction under 28 U.S.C.
§1332. Allstate argues, though, that while Makamson and
Jordan are citizens of Mississippi, their citizenship should
be disregarded for the following reasons:
“(1) Both [Makamson and Jordan] are fraudulently joined
and Plaintiff is entitled to no recovery against them; (2)
The Complaint is not clear as to what allegations are
asserted against specific defendants because the Complaint at
times lumps all defendants together and, at other times,
references a defendant without identifying the defendant
referenced; and (3) The Complaint filed in the second lawsuit
is ‘as hopelessly ambiguous as that filed in the first
[Doc. 1, at ¶ 5].
provides multiple reasons in support of (1), improper
joinder: namely, lack of specific allegations; improper
service of process; and complete failure to serve the
in response to Allstate's statements, asserts that both
Makamson and Jordan are properly joined and that both were
properly served with process. Their rightful presence here,
says Luckett, destroys diversity jurisdiction under §
1332, with the result that this case should be remanded to
state court [Doc. 9].
loss is the operative event for the birth of this lawsuit. On
June 9, 2015, a fire engulfed where Luckett was living and
caused damages. Prior to the fire, Luckett had purchased what
the parties agree was a renters insurance policy from
Allstate. According to Luckett, after the fire, she filed
“a claim for benefits under said policy with Allstate .
. . .” [Doc. 1-5]. Her Complaint further alleges that
on November 4, 2015, Allstate wrongfully and in bad faith
denied Luckett's fire loss claim and refused to pay
benefits due under the policy. Id.
adjuster, Wilbur Jordan, defendant herein, in a denial letter
to Luckett, states the following reasons for Allstate's
denial of Luckett's claims for insurance coverage:
“Our investigation into your claim indicates that you
concealed and/or misrepresented material facts and
circumstances. During our investigation, we were notified
that you unlawfully moved into the [subject]
house…without the owner's knowledge…you
misrepresented that you were renting the subject house”
[Doc. 9-1 at p. 1].
“Based upon our investigation of your claim, we
concluded that you made misrepresentations regarding your
financial condition and regarding material aspects of your
claim. Additionally, there have been discrepancies in the
information you have provided us in your claim.
Also…we have concluded that you intentionally
overstated the value of your property damaged by the
fire…that you submitted claims for losses which were
not incurred…” [Doc. 9-1 at p.1].
“Allstate…requested through our attorney that
you produce certain documents. Despite repeated requests, you
have failed to produce all of the requested documents”
[Doc. 9-1 at p. 2');">p. 2].
to reach any settlement with Allstate, Luckett filed the
above-discussed two lawsuits, the first only against
Allstate, which lawsuit has been dismissed. This second
lawsuit which brought in Makamson and Jordan alleges the
following causes of action against Makamson: (1) fraud; (2)
breach of duty of good faith and fair dealing; and (3)
negligence. Luckett submits against Jordan the theories of:
(1) negligence; and (2) gross negligence [Doc. 1-5].
jurisdiction requires complete diversity-if any plaintiff is
a citizen of the same State as any defendant, then diversity
jurisdiction does not exist. If the plaintiff improperly
joins a non-diverse defendant, however, then the court may
disregard the citizenship of that defendant, dismiss the
non-diverse defendant from the case, and exercise subject
matter jurisdiction over the remaining diverse
defendant.” Flagg v. Stryker Corp., 819 F.3d
132, 136 (5th Cir. 2016). “[T]he [district] court has
the obligation to determine whether a plaintiff has
improperly joined a party that defeats federal diversity
jurisdiction.” Flagg, 819 F.3d at 136.
determine whether a party is fraudulently joined for removal
purposes, the district court is required to be obedient to a
telling test: whether plaintiff has a possibility of recovery
against the in-state defendant. Id. Two different
roads may lead to a conclusion. First, the Court may evaluate
whether the plaintiffs' complaint states a valid claim
against the resident defendants under the federal pleading
standards set forth in Fed.R.Civ.P. 8. See
International Energy Ventures Management, L.L.C. v.
United Energy Group, Ltd., 18 F.3d 193');">818 F.3d 193, 200 (5th Cir.
2016). Secondly, the Court may exercise its discretion to
pierce the pleadings and consider outside evidence to
evaluate whether a plaintiff has a claim against the resident
defendant. A court may choose to use either of these two
analyses, but must use one and only one of them.
International Energy Ventures Management, L.L.C.,
818 F.3d at 207.
Court may choose the second option to pierce the pleadings
“where a complaint states a claim that satisfies
12(b)(6), but has misstated or omitted discrete
facts that would determine the propriety of joinder . . .
.” Mumfrey v. CVS Pharm., Inc., 19 F.3d 392');">719 F.3d 392,
401 (quoting Smallwood v. Ill. Cent. R.R. Co., 385
F.3d 568, 573 (5th Cir. 2004)).
hearing on Luckett's Motion to Remand, Luckett asked the
Court to permit her to conduct remand-related discovery, so
that the Court could consider evidence outside of the
pleadings. The plaintiff, though, did not identify any
discovery she would be seeking that would shed light on the
Court's jurisdictional question. The plaintiff's
request, thus, appeared to be just an effort to conduct a
“fishing expedition” in hopes of defeating
federal jurisdiction. The Court, therefore, will not allow
remand-related discovery; instead, this Court ...