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Delamar v. Mogan

United States District Court, W.D. Kentucky

August 20, 2013

ANDY DELAMAR d/b/a JERI'S CAFÉ, PLAINTIFF
v.
LINDA MOGAN, SUPERVISING ADJUSTER; CUNNINGHAM LINDSEY U.S., INC.; PENN-STAR INSURANCE COMPANY; and GLOBAL INDEMNITY GROUP, INC., DEFENDANTS

For Andy Delamar, doing business as Jeri's Cafe, Plaintiff: James T. Skinner, II, LEAD ATTORNEY, Sebree, KY; Jon R. Fritz, LEAD ATTORNEY, Fritz Law Firm PLLC, Providence, KY.

For Linda Mogan, Supervising Adjuster, Cunningham Lindsey U.S., Inc., Penn-Star Insurance Company, Global Indemnity Group, Inc., Defendants: Michael E. Brown, LEAD ATTORNEY, Kightlinger & Gray, LLP-Indianapolis, Indianapolis, IN; Sacha L. Armstrong, LEAD ATTORNEY, Kightlinger & Gray LLP - Evansville, Evansville, IN.

OPINION

Joseph H. McKinley, Jr., Chief United States District Judge.

Page 756

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff's motion to remand pursuant to 28 U.S.C. § 1447(c) [DN 11]. Fully briefed, these matters are ripe for decision.

I. BACKGROUND

Jeri's Café, a restaurant business located in Clay, Kentucky, suffered a fire loss on August 12, 2012. The Plaintiff, Andy Delamar d/b/a Jeri's Café, filed a claim with his insurance company, Global Indemnity Group. Global Indemnity Group hired an adjusting company, Cunningham Lindsey, to adjust the Plaintiff's claim related to the fire loss. Linda Mogan, an adjustor employed by Cunningham Lindsey, assisted in this effort. This action was filed in the Webster County Circuit Court by the Plaintiff alleging breach of contract and bad faith settlement claims.

The Plaintiff is a Kentucky resident and so is the Defendant Linda Mogan. Despite this, the Defendants removed the action to this Court based on diversity jurisdiction. The Defendants' removal is based on the theory that Plaintiff fraudulently joined Defendant Mogan for the purposes of defeating diversity jurisdiction. The Plaintiff now moves the Court to remand the case to the Webster County

Page 757

Circuit Court claiming that he has stated a colorable claim against the a non-diverse defendant, the insurance adjustor.

II. STANDARD OF REVIEW

" 'Fraudulent joinder occurs when the non-removing party joins a party against whom there is no colorable cause of action.'" Walker v. Philip Morris USA, Inc., 443 Fed.Appx. 946, 952 (6th Cir. 2011) (quoting Saginaw Housing Comm'n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009)). " The non-moving party's motive for joining the non-diverse party to the lawsuit is 'immaterial to our determination regarding fraudulent joinder.'" Id. (quoting Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999)). The burden is on the Defendants to show fraudulent joinder, and as with any dispute over removal, all doubts are resolved in favor of remand. Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999); Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994).

" To prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). " Therefore the question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved." Probus v. Charter Communications, LLC, 234 Fed.Appx. 404, 407 (6th Cir. 2007) (internal citation omitted). See also Walker, 443 Fed.Appx. at 952. In making this determination, the Sixth Circuit recognizes that the district court may " pierce the pleadings and conduct a summary inquiry" to determine whether a plaintiff's complaint has misstated or omitted " discrete and undisputed facts " that would determine the propriety ...


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