United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTIONS TO REMAND
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
case is an insurance coverage dispute concerning an
uncontested $44 million judgment entered against Solaris
Power Services, LLC (“Solaris”) in the Circuit
Court of Jackson County, Missouri, in favor of Kevin and
Anita Johnson (“the Johnsons”) pursuant to Mo.
Rev. Stat. § 537.065. The judgment arises from an accident at
the General Motors Fairfax plant in Kansas City, Kansas, in
which Kevin Johnson, an electrician employed by Capital
Electric Construction Company, Inc.,  (“Capital”) was
severely injured because of Solaris's negligence in
failing to de-energize equipment on which he was working.
Capital was insured by Liberty Mutual Fire Insurance Company
(“Liberty Mutual”), and Associate Electric &
Gas Insurance Services, LTD. (“AEGIS”), provided
excess liability insurance to Capital. Plaintiffs Glen Simons
(“Simons”) and Solaris (collectively
“Plaintiffs”) allege they were, or should have
been, additional insureds under both policies, but both
insurance companies wrongly denied them coverage, damaging
subsequently filed suit in Jackson County Circuit Court to
try to recover on the policies. Liberty Mutual removed to
before this Court are the Johnsons' motion to remand
(Doc. 11) and Plaintiffs' separate motion to remand (Doc.
14). The Court holds that the Johnsons and the named
defendant, Capital Electric, Inc., have been fraudulently
joined, and so the motions are DENIED.
Power is the judgment debtor on the judgment obtained by
Kevin and Anita Johnson who have been named as defendants in
January 17, 2017, Liberty Mutual filed a declaratory judgment
action in the United States District Court for the District
of Kansas seeking a declaration that it owes Solaris no
coverage as an additional insured under the insurance policy
issued to Capital. See Liberty Mut. Fire Ins. Co. v.
Solaris Power Servs., LLC, No.
January 30, 2017, Plaintiffs filed suit in Jackson County
Circuit Court against Liberty Mutual, AEGIS, and Kevin and
Anita Johnson. Plaintiffs brought four claims for breach of
contract and bad faith refusal to defend and settle, alleging
they were additional insureds under the Liberty Mutual and
AEGIS insurance policies, and that they were damaged by the
insurance companies denial of coverage for Solaris. Liberty
Mutual removed this lawsuit to federal court, and then
Plaintiffs voluntarily dismissed it. See Simon v. Liberty
Mut. Fire Ins. Co., No. 4:17-cv-089-DGK (Feb. 9, 2017
February 17, 2017, Plaintiffs filed the present lawsuit,
which is nearly identical to the previous lawsuit except it
adds two claims. Count V is a breach of contract claim
brought by Solaris against Capital, who is allegedly a
Missouri citizen, alleging that Capital contracted with
Solaris to include Solaris as an additional insured under any
liability policy issued to Capital, and Capital breached the
contract by failing to include Solaris as an additional
insured on the Fairfax job. Count VI seeks a declaratory
judgment that Solaris is an additional insured under the
Liberty Mutual policy issued to Capital.
the six counts in the Petition names either Johnson as a
defendant. Further, paragraph five of the Petition states,
“Defendants Kevin Johnson and Anita Johnson are
necessary parties pursuant to § 379.200 R.S.Mo
[Missouri's equitable garnishment statute], and can be
served at their residence, ” but the Petition contains
no equitable garnishment count.
action may be removed by the defendant where the case falls
within the original jurisdiction of the district courts. 28
U.S.C. § 1441(a). The burden of establishing federal
jurisdiction is on the party seeking removal. In re Bus.
Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th
Cir. 1993). In considering a motion to remand, removal
statutes are strictly construed, and the court resolves all
doubts in favor of remand. Transit Cas. Co. v. Certain
Underwriters at Lloyd's of London, 119 F.3d 619, 625
(8th Cir. 1997).
invoke the court's diversity jurisdiction, the parties
must be citizens of different states and the amount in
controversy must exceed $75, 000. Id. §
1332(a). The parties agree that the amount in dispute is more
than $75, 000, they disagree whether the diversity
requirement is satisfied. Complete diversity between the
parties is required; the presence of a single plaintiff from
the same state as a single defendant extinguishes federal
jurisdiction. Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 553 (2005). Also, the
“forum-defendant rule” prohibits an action from
being removed to federal court “if any of the parties
in interest properly joined and served” as a defendant
is a citizen of the state in which the action is brought. 28
U.S.C. § 1441(b)(2).
joinder is an exception to the complete diversity rule.
In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620
(8th Cir. 2010). Fraudulent joinder occurs when a litigant
files “a frivolous or illegitimate claim” against
a non-diverse party to prevent removal. Id. Although
the doctrine is called “fraudulent joinder, ” the
term is “somewhat of a misnomer” because the
plaintiff's intent is not an element in the analysis.
Kongelf v. Sears Holding Corp., No. 4:09-cv-038,
2010 WL 1977833, at *3 (D.N.D Apr. 7, 2010). In determining
whether there is fraudulent joinder, the court ...