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Robinson v. Allstate Vehicle and Property Insurance Co.

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

February 27, 2019

BETTY ROBINSON, Plaintiff,
v.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY and KATHERINE DARBY, Defendants.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE

         Presently before the Court is Plaintiff's Motion to Remand Case to the Circuit Court of Scott County, Missouri. (Doc. 7.) Defendants oppose the Motion. (Doc. 13.) For the following reasons, the Motion to Remand will be granted, and this matter will be remanded to state court.

         I. Background

         Plaintiff Betty Robinson filed suit in the Circuit Court of Scott County, Missouri, on September 6, 2018. (Doc. 1-1.) The Petition asserts claims of breach of contract and vexatious refusal to pay against Defendant Allstate Vehicle and Property Insurance Company (“Allstate”); and claims of negligent failure to procure insurance and breach of fiduciary duty against Defendant Katherine Darby (“Darby”). Id. Plaintiff's claims stem from a fire loss sustained to real and personal property on July 9, 2018. She alleges the loss was covered by an insurance policy issued to her by Allstate on March 18, 2018. Defendant Darby was an authorized agent of Allstate at all relevant times.

         The record reflects that both Defendants were served with the Petition on September 19, 2018. (Doc. 1-1.) Defendants removed this action from the Circuit Court of Scott County on October 18, 2018, citing diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1.) In the Notice of Removal, Defendants allege that Plaintiff Robinson is a citizen of Mississippi; Defendant Allstate is a citizen of Illinois; and Defendant Darby is a citizen of Missouri. Id. at p. 2. Defendants state that the amount in controversy in this action exceeds the $75, 000 jurisdictional amount. Id.

         Plaintiff filed a Motion to Remand, in which she argues that this action is not removable due to the “forum defendant rule” set forth in 28 U.S.C. § 1441(b)(2). (Doc. 7.) Specifically, Plaintiff notes that Defendant Darby is a citizen of Missouri, and was served prior to removal. Plaintiff argues that this Court lacks jurisdiction, and the case must be remanded to the Circuit Court of Scott County.

         In their Response, Defendants argue that Plaintiff fraudulently joined Darby and that the Court should therefore disregard her residency for purposes of determining diversity jurisdiction. (Doc. 13.) Defendants have submitted affidavits, which they request the Court consider in determining the issue of fraudulent joinder. (Docs. 13-1, 13-2.)

         Plaintiff has filed a Reply, in which she first argues that Defendants' fraudulent joinder allegation is untimely and does not provide a basis for jurisdiction. Plaintiff further argues that Defendant Darby has not been fraudulently joined because there is a reasonable basis in fact and law for the claims against Darby.

         II. Discussion

         The Eighth Circuit has admonished district courts to “be attentive to a satisfaction of jurisdictional requirements in all cases.” Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir. 1987). “Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The party invoking federal jurisdiction bears the burden of showing that all prerequisites to jurisdiction are satisfied. Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir. 1969). Any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007); Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir. 1997).

         The statutes that govern removal of a state court action to federal court include Title 28 U.S.C. §§ 1441 and 1446. Pursuant to § 1446(b), “[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” A notice of removal may be amended during the thirty-day period during which the removal may be filed. Lindsey v. Dillard's, Inc., 306 F.3d 596, 600 (8th Cir. 2002); Whitehead v. The Nautilus Group, Inc., 428 F.Supp.2d 923, 928-29 (W.D. Ark. 2006). Although a notice may be amended after the thirty-day period, the notice can only be amended to add specific facts supporting the originally stated grounds for removal or to clarify the grounds for removal as stated in the original notice. Whitehead, 428 F.Supp.2d at 928-29. The amendment cannot add new grounds for removal once the thirty-day period has expired. Id.

         In this case, there is no dispute that Darby is a citizen of Missouri. The forum defendant rule, 28 U.S.C. § 1441(b)(2), [1] allows a defendant to remove a civil action from state court to federal court based on diversity jurisdiction if none of the properly joined defendants are citizens of the state in which the original action was filed. Applying that rule here, there is no removal jurisdiction over this case because Defendant Darby is a citizen of Missouri. “A defendant may not remove to federal court on the basis of diversity if any of the defendants is a citizen of the state where the action was filed.” Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145 (8th Cir. 1992); 28 U.S.C. § 1441(b)(2).

         Where a defendant is joined solely to deprive federal courts of jurisdiction, however, such joinder is fraudulent and will not prevent removal. Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983). The removing party alleging fraudulent joinder bears the burden of proving the alleged fraud. Manning v. Wal-Mart Stores East, Inc., 304 F.Supp.2d 1146, 1148 (E.D. Mo. 2004).

         Plaintiff first argues that Defendants' fraudulent joinder claim is untimely. Plaintiff states that Defendants did not allege fraudulent joinder in their notice of removal but, rather, simply pled diversity jurisdiction. Plaintiff notes that the time for ...


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