United States District Court, S.D. Mississippi, Western Division
BRAMLETTE UNITED STATES DISTRICT JUDGE.
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.
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.
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Amica rescinded “after a loss and after Defendants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.
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.
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.
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.
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.
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.
asserts that the inclusion of Goff as a defendant was proper
and warranted by Mississippi law. Doc. 10, p. 9. Colenburg
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, ” ...