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Bullar v. U.S. Specialty Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

July 13, 2015

DARRELL BULLAR and GINA BULLAR, Plaintiffs,
v.
U.S. SPECIALTY INSURANCE COMPANY, et al., Defendants.

MEMORANDUM AND ORDER

JEAN C. HAMILTON, District Judge.

This matter is before the Court on Defendants Jason Mark and Archway Skydiving's Motion to Remand, filed May 26, 2015.[1] (ECF No. 6). The motion is fully briefed and ready for disposition.

BACKGROUND[2]

On or about October 9, 2010, Jonathan Bullar suffered fatal injuries as a result of a parachuting accident at Vandalia Municipal Airport in Vandalia, Illinois. ( See U.S. Specialty Insurance Company's Notice of Removal, ECF No. 1, ¶ 1). Mr. Bullar's parents, Plaintiffs Darrell and Gina Bullar, sued, inter alia, Defendants Jason Mark, a parachuting instructor, and Archway Skydiving in the United States District Court for the Southern District of Illinois, alleging wrongful death (the "Underlying Action"). ( Id. ). On April 21, 2014, the District Court in the Underlying Action granted the Bullars' motion for summary judgment on liability. ( Id., ¶ 3). On August 26, 2014, the Court entered a $2, 000, 000 judgment against Defendants Mark and Archway. ( Id. ).

On or about February 4, 2015, the Bullars filed a Petition to Recover Insurance Proceeds under Mo.Rev.Stat. § 379.200 against Defendants Mark, Archway and U.S. Specialty Insurance Company ("USSIC"), in the Circuit Court of St. Louis County, Missouri.[3] (Notice of Removal, ¶ 4). Mark and Archway filed a Cross-Claim for Bad Faith against USSIC on or about February 9, 2015. ( Id., ¶ 8). On or about March 3, 2015, the Bullars filed an Amended Petition against all Defendants, asking that judgment be entered against Defendant USSIC for "(1) the sum of the policies['] limits, (2) post-judgment interest on the judgment against Defendants Mark and Archway, and (3) the Bullars' costs in this lawsuit." (Amended Petition, ECF No. 4, P. 4). USSIC received a Summons through the Director of Missouri's Department of Insurance, Financial Institutions and Professional Registration on or about April 22, 2015, and removed the case to this Court on May 22, 2015, on the basis of diversity jurisdiction. (Notice of Removal, ¶¶ 6, 10).[4]

As stated above, Mark and Archway filed the instant Motion to Remand on May 26, 2015, claiming, inter alia, that USSIC failed to obtain their consent to removal, as required by 28 U.S.C. § 1446(b)(2)(A).

LEGAL STANDARD

"The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction." Peters v. Union Pacific R. Co., 80 F.3d 257, 260 (8th Cir. 1996) (citing 28 U.S.C. § 1441(b)). "A defendant may remove a state law claim to federal court only if the action originally could have been filed there." In re Prempro Products Liability Litigation, 591 F.3d 613, 619 (8th Cir.) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005), cert. denied, 562 U.S. 963 (2010)). The party invoking federal jurisdiction and seeking to which an answer was not required. removal has the burden of establishing jurisdiction by a preponderance of the evidence. Central Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009); see also Nicely v. Wyeth, Inc., 2011 WL 2462060, at *2 (E.D. Mo. Jun. 17, 2011). "Removal statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand." Manning v. Wal-Mart Stores East, Inc., 304 F.Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir. 1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998)); see also In re Prempro, 591 F.3d at 620.

DISCUSSION

"Where there are multiple defendants, all must join in a [notice] to remove within thirty days of service." Christiansen v. West Branch Community School Dist., 674 F.3d 927, 932 (8th Cir. 2012) (citing Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir. 2002)). On this basis, Mark and Archway assert the Court must remand because they did not consent to USSIC's removal of the case to this Court.

USSIC first counters that as unserved Defendants, Mark and Archway's consent to removal was not necessary. (USSIC's Memorandum in Opposition to Defendant Mark's and Archway Skydiving's Motion to Remand ("USSIC's Opp."), P. 4, quoting 28 U.S.C. § 1446(b)(2)(A) ("all properly joined and served' defendants must consent to removal")). In response, Mark and Archway provide evidence that prior to removal, their attorney agreed to accept service on their behalf. ( See ECF No. 12-1). Mark and Archway further note they then actively participated in the case, by filing deposition notices and a cross-claim against USSIC. (Motion to Remand, P. 3). Under these circumstances the Court finds that Mark and Archway were properly served, and so their consent to removal was necessary. See Hammond v. City of Ladue, Mo., 2010 WL 5392831, at *2 (E.D. Mo. Dec. 21, 2010); Goree v. PV Holding Corp., 2015 WL 2238960, at *4 (E.D. Mo. May 12, 2015).[5]

USSIC next contends Mark and Archway's consent was not necessary as they are merely nominal Defendants, whose presence is unnecessary to the adjudication of this case. (USSIC's Opp., PP. 5-7). Upon consideration the Court disagrees, as said Defendants' joinder was mandated by Section 379.200. See Parsons v. Allstate Ins. Co., No. 02-421-CV-W-FJG, slip op. at 7 (W.D. Mo. Mar. 31, 2003) ("Mo.Rev.Stat. § 379.200 specifically states that if the judgment is not satisfied the creditor may proceed against the defendant and the insurance company. "); Kendall v. Northern Assur. Co. of America, 2009 WL 2632757, at *2 (W.D. Mo. Aug. 25, 2009) (collecting cases) ("Courts have consistently held that § 379.200 requires plaintiffs to join the judgment debtor in an equitable garnishment action filed pursuant to this statute.").

USSIC finally asserts that should this Court determine the presence of Mark and Archway is necessary to this action, it should realign them as Plaintiffs "in accordance with their true interests." (USSIC's Opp., PP. 7-10). The Court again finds Missouri case law is to the contrary. See, e.g., Goree, 2015 WL 2238960, at *3 ("Courts have repeatedly rejected the argument that judgment debtors sued under § 379.200 can be realigned as plaintiffs for the purposes of creating federal jurisdiction."); Haines v. Sentinel Ins. Co., 2009 WL 648894, at *3 (W.D. Mo. Mar. 11, 2009) ("Based on the foregoing cases, the Court finds that the realignment of [judgment debtor] Joshua Kauffman is improper in this action because he is a necessary party defendant to the action under Mo.Rev.Stat. § 379.200."); Kendall, 2009 WL 2632757, at * 2 (collecting cases); Parsons, No. 02-421-CV-W-FJG, slip op. at 8.[6]

In light of the foregoing, the Court will grant Defendants Mark and Archway's Motion to Remand.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants Mark and Archway's Motion to Remand (ECF No. 6) is GRANTED, and this case is REMANDED to the Circuit Court of St. Louis County, State of Missouri. An appropriate Order of Remand will accompany this Memorandum and Order.


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