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Colenburg v. Amica General Agency, LLC

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

June 12, 2019

TRAMON COLENBURG PLAINTIFF
v.
AMICA GENERAL AGENCY, LLC d/b/a AMICA MUTUAL INSURANCE COMPANY; KENNETH GOFF; PARRISH CANNON, AND JOHN DOES 1-5 DEFENDANTS

          ORDER

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Parrish Cannon's Motion to Dismiss (Doc. 7), Plaintiff's Motion to Remand (Doc. 9), Defendant Amica General Agency, LLC (“Amica”)'s Response (Doc. 13), Plaintiff's Reply (Doc. 15), and Plaintiff's Motion to Stay Deadline to Answer or Otherwise Plead to Defendants' Counterclaim and Motion to Dismiss Until Court Rules on Plaintiff's Motion to Remand (Doc. 17). The Court addresses the Motion to Remand first and foremost.

         Background

         This case is an insurance dispute. Plaintiff Tramon Colenburg (“Colenburg”) filed suit against Amica General Agency LLC d/b/a Amica Mutual Insurance Company, Kenneth Goff, individually and otherwise acting as an agent for Amica, Parrish Cannon, individually and otherwise acting as an agent for Amica, and John Does 1-5. Doc. 1-1. Colenburg filed suit in the Circuit Court of Lincoln County, Mississippi. Doc. 1-1.

         Colenburg alleges he purchased an insurance policy, 6909231004, that provided fire insurance from Amica. Doc. 1-1, p. 3, ¶ 13. Colenburg contends that on September 27, 2018, a fire occurred on his property, resulting in substantial damage. Id. at ¶ 12. He states that he alerted Amica of the incident, “Claim No. 60003318375, ” and demanded payment of benefits due under his insurance policy. Id. at ¶ 14. Colenburg claims that the defendants have refused to pay. Id. at ¶ 15-17. He sues under breach of contract; contractual and tortious breach of the implied covenant of good faith and fair dealing; bad faith; deceptive and unfair trade practices, M.C.A. § 75-24-5; and misrepresentation. Amica and Parrish Cannon argue that Colenburg seeks to collect upon insurance policy proceeds of a homeowner's policy that Amica rescinded “after a loss and after Defendants became aware of misrepresentations in the policy application and Plaintiff is suing for bad faith and related causes of action.” Doc. 1, p. 1, ¶ 2.

         The case was removed to this Court on April 1, 2019, pursuant to 28 U.S.C. § 1441(a), based on diversity jurisdiction. See Doc. 1. On April 8, 2019, Defendant Parrish Cannon moved to dismiss. Doc. 7. Two days later, Colenburg moved to remand to state court. Doc. 9.

         Background

         Amica and Parrish Cannon allege that Colenburg's inclusion of Defendant Kenneth Goff (“Goff”) in the Circuit Court complaint is “an attempt to destroy federal jurisdiction and thwart the proper removal of this case to [federal court].” Doc. 1, p. 3, ¶ 5. They argue that the Circuit Court complaint makes no independent allegations against the only nondiverse defendant, Goff. The defendants allege that the complaint does not explain what role Goff played in any of the actions attributed to Amica: “It makes no mention of any duty owed by Kenneth Goff to Mr. Colenburg and after naming him as a defendant, it does not mention this party specifically again, instead lumping him in with the ‘defendants' for purposes of his liability allegations.” Doc. 1, p. 2, ¶ 5.

         Amica and Parish Cannon state, “Without waving objections to inclusion of improperly joined defendant, Kenneth Goff, all defendants consent to the notice of removal.” Doc. 1, p. 3, ¶ 8. By “all defendants, ” the Court presumes the defendants intend to exclude Goff from that statement since Goff has not appeared in the case and does not join in the Notice of Removal (Doc. 1). Amica and Parrish Cannon argue that “there is no reasonable basis for predicting that state law might impose liability on Kenneth Goff, ” on the facts of this case, involving a rescission of an insurance policy. Doc. 1, p. 3. Therefore, the defendants conclude, Goff's nondiverse citizenship should be ignored for purposes of determining diversity jurisdiction; or, in the alternative, “this improperly joined party [should be dismissed] as a dispensable party defendant in order to retain jurisdiction.” Doc. 1, p. 3, ¶ 5.

         Colenburg argues that Goff did not join in the removal. Therefore, the removal of this case was allegedly defective in that there was a failure to timely establish the consent of all properly joined and served defendants within thirty (30) days of service. Doc. 9, p. 1, ¶ 1. Amica and Parrish Cannon respond, stating that “Colenburg fails to recognize that Goff's consent to removal was not needed or required because Goff was not properly joined.” Doc. 14, p. 2.

         The Court finds that whether Goff joined in the removal is not of issue if Goff is improperly joined. If Goff was properly joined, the motion to remand (Doc. 9) will be granted. If Goff was improperly joined, the motion to remand (Doc. 9) will be denied.

         Colenburg asserts that the inclusion of Goff as a defendant was proper and warranted by Mississippi law. Doc. 10, p. 9. Colenburg states that

Goff was not included as a [d]efendant for the purpose of defeating diversity jurisdiction. Rather, Goff may be independently liable to the Plaintiff for misrepresentation of the terms and conditions of the subject insurance policy, negligence in the offering of advice as to need and sufficiency of coverage, negligence in the omission and misstatement of the availability and coverage afforded by the insurance policy, and for his gross negligence and reckless disregard for the rights of the Plaintiff.

Id. Amica argues specifically that Colenburg does not allege that Goff denied the claim, that Goff participated in the investigation, or that Goff had any involvement or role whatsoever regarding the ultimate denial of the claim. Doc. 14, p. 3. Amica acknowledges that Colenburg's motion to remand makes various allegations against Goff, but Amica argues that those allegations appear nowhere in the complaint. Id. Amica states that “the appropriateness of removal is based only on the allegations in the original state court complaint, ” ...


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