United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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,
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.
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).
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.
case, there is no dispute that Darby is a citizen of
Missouri. The forum defendant rule, 28 U.S.C. §
1441(b)(2),  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).
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).
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 ...