United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' motion to
remand [ECF No. 15], Plaintiffs' motion to withdraw
Plaintiffs' motion to remand and first amended complaint
[ECF No. 21], Plaintiffs' motion for voluntary dismissal
without prejudice of Defendants Smith McGehee, LLC and Jason
R. Sparks [ECF No. 22], and a motion for leave to file first
amended answer to original petition filed by Defendant
Bankers Standard Insurance Company (“Bankers”)
[ECF No. 24].
originally filed their three-count petition [ECF No. 6] in
the Circuit Court of St. Louis County, Missouri. See
Cusumano v. Bankers Standard Ins. Co.¸ Case No.
17SL-CC03060 (St. Louis Cty. Cir. Ct. filed Aug. 22, 2017)
(docket sheet available at
(last visited Dec. 4, 2017)). In the original petition,
Plaintiff John Cusumano alleges he sustained
injuries when “an underinsured driver”
of a sports utility vehicle negligently struck Plaintiff
while he “was riding a bicycle in a designated
crosswalk at [an] intersection” in Naples, Florida on
February 28, 2016. With prior notice to and consent of
Defendant Bankers, Plaintiff John Cusumano received the
policy limits from the “underinsured
driver's” liability insurance policy and two insurance
policies providing underinsured motorist coverage issued to
Plaintiffs, one issued by GEICO Indemnity Insurance Company
(“GEICO”) and one issued by Defendant
Bankers. Plaintiff John Cusumano further alleges he
unsuccessfully sought payment from Defendant Bankers under an
umbrella policy Defendant Bankers issued that allegedly
provides $1, 000, 000.00 in underinsured motorist
coverage. Due to Defendant Bankers' failure to
pay under its umbrella policy, Plaintiff John Cusumano seeks
monetary relief for Defendant Bankers' breach of contract
(Count I) and vexatious refusal to pay (Count II), and his
wife, Plaintiff Mary Cusumano, seeks monetary relief for loss
of consortium as a “result of the injuries suffered
by” Plaintiff John Cusumano (Count III).
Bankers removed the lawsuit to this Court on the basis of
this Court's original diversity jurisdiction [ECF No. 1].
28 U.S.C. § 1441(a); see also 28 U.S.C. §
1332. On September 21, 2017, Defendant Bankers filed its
answer to Plaintiffs' original petition [ECF No. 5].
Within twenty-one days after Defendant Bankers answered the
original petition, Plaintiffs filed a first amended complaint
[ECF No. 12]. See Fed.R.Civ.P. 15(a)(1)(B) (allowing
a litigant to “amend its pleading once as a matter of
course within” twenty-one days “after service of
a responsive pleading” if the amended pleading is
“one to which a responsive pleading is
required”). In their first amended complaint Plaintiffs
named three Defendants, Defendant Bankers and two others:
Smith McGehee, LLC, a company who “hires and/or
oversees agents and/or brokers in the insurance industry,
” and Jason R. Sparks, a “licensed insurance
broker.” In addition to the first three counts that
are the same as the three counts in Plaintiffs' original
petition, Plaintiff John Cusumano added two claims for
negligence (Count IV) and breach of fiduciary duty (Count V)
against the two new Defendants. None of the three
Defendants named in the first amended complaint have filed an
answer or motion for summary judgment directed to the first
filed (1) a motion to remand [ECF No. 15], followed by a
request that the Court allow Plaintiffs to withdraw their
motion to remand and first amended complaint [ECF No. 21].
Plaintiffs also filed a voluntary dismissal without prejudice
of “all claims and causes of action asserted”
against each of the two new Defendants, “with each
party to bear their own attorneys' fees and costs”
[ECF No. 22]. Additionally, Plaintiffs and Defendant Bankers
filed a “joint stipulation” regarding issues
pertaining to Plaintiffs' maintenance of the amount of
underlying insurance required by Defendant Bankers'
umbrella policy [ECF No. 20].
Court finds Plaintiffs' voluntary dismissal of their
claims and causes of action against the two new Defendants,
Smith McGehee, LLC and Jason R. Sparks, does not require a
Court order because no Defendant has filed an answer or
motion for summary judgment directed to the first amended
complaint. Fed.R.Civ.P. 41(a)(1)(A)(i). Additionally, upon
Plaintiffs' dismissal of the claims and causes of action
against Defendants Smith McGehee, LLC and Jason R. Sparks,
the only claims and causes of actions remaining are
Plaintiffs' three claims for breach of contract,
vexatious refusal to pay, and loss of consortium against
Defendant Bankers. Those three claims are presented in the
original petition, which is pursued against Defendant Bankers
only and to which Defendant Bankers filed an answer. To
clarify the record upon the dismissal of the claims and
causes of action against Smith McGehee, LLC and Jason R.
Sparks, the Court will allow Plaintiffs to withdraw their
first amended complaint and motion to remand.
the circumstances, the claims and causes of action now
pending are the three claims and causes of action for breach
of contract, vexatious refusal to pay, and loss of consortium
set forth in Plaintiffs' original petition against
Defendant Bankers only. Defendant Bankers moves for leave to
file a first amended answer to the original petition [ECF No.
24]. Defendant Bankers asserts it seeks “to amend its
Affirmative Defenses in accordance with the joint stipulation
. . . reached between the parties.” Id.
Specifically, Defendant Bankers seeks leave to file the first
amended answer that is now available of record [ECF No.
24-1]. Plaintiffs' counsel, Defendant Bankers states,
consents to the filing of the amended answer “and in
fact . . . specifically requested that Defendant [Bankers] do
so.” The Court grants Defendant Bankers leave
to file the amended answer that is now available of record.
Accordingly, after careful consideration, IT IS
HEREBY ORDERED that Plaintiffs' motion to
withdraw their motion to remand and first amended complaint
[ECF No. 21] is GRANTED so that
Plaintiffs' motion to remand [ECF No. 15] and first
amended complaint [ECF No. 12] are no longer before the
IS FURTHER ORDERED that Defendant Bankers'
motion for leave to file its first amended answer to the
original petition [ECF No. 24] is GRANTED so
that the first amended answer now available at ECF No. 24-1
accordance with Plaintiffs' voluntary dismissal without
prejudice [ECF No. 22] and withdrawal of their first amended
complaint, no claims or causes of action remain pending
against Defendants Smith McGehee, LLC and Jason R. Sparks.
 Plaintiffs and Defendant Bankers
consented to the undersigned's exercise of authority
under 28 U.S.C. Section 636(c).
 Plaintiffs describe Plaintiff John
Cusumano's injuries and damages as: “severe and
irreversible . . ., including but not limited to a blowout
facial fracture, total reverse shoulder arthroplasty of right
shoulder, and intense bilateral shoulder pain and