United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
before the Court is Plaintiff's Motion to Remand, (ECF
No. 9), and Defendants Kenneth Conaway (“Mr.
Conaway”), Betsy Ross (“Ms. Ross”), and
Lisa McGahan's (“Ms. McGahan”) (collectively
“Nationwide Adjusters”) Motion to Dismiss, (ECF
No. 4). For the reasons stated herein, the Court
DENIES Plaintiff's Motion to Remand and
GRANTS Nationwide Adjusters' Motion to
case arises out of an insurance claim involving a house fire
in the Southern District of West Virginia of a residence
owned by Plaintiff and insured by Defendant Nationwide
Property & Casualty Insurance Company
(“Nationwide”). (See ECF No. 1 at 4-7.)
On October 22, 2017, a house fire occurred at Plaintiff's
residence resulting in severe damage to the dwelling and the
personal property inside. (Id. at 5.) Plaintiff
insured his residence through Nationwide and submitted a
claim for insurance benefits to Nationwide following the
fire. (Id.) Upon Plaintiff's submission,
Nationwide began its investigation, which included Plaintiff
having to produce certain materials and documents, execute
releases and authorizations, and submit to an examination
under oath. (Id. at 6.) Nationwide additionally
interviewed Plaintiff's neighbors and acquaintances.
(Id.) Having complied with Nationwide's requests
but not having received his payment, Plaintiff was dismayed
and took legal action. (ECF No. 11 at 3.)
December 29, 2017, Plaintiff filed his Complaint in the
Circuit Court of Kanawha County, West Virginia. (ECF No. 1-1
at 4.) The Complaint states that despite Plaintiff's full
cooperation and timely filing of his claim, Nationwide denied
his claim and failed to properly settle the claim, and as a
result, he “has been deprived of the use and enjoyment
of [his residence], as well as his personal property, and . .
. has not been compensated and paid by Defendant Nationwide
for the covered losses and damages.” See
Compl. ¶¶ 1-20, 29. The Complaint further alleges
that these actions by the Defendants were “part of a
general business practice and constitutes unfair claims
settlement practices under applicable consumer protection
statutes and regulations.” See Compl.
¶¶ 28-38. The Complaint demands compensatory
damages for Plaintiff's net economic damages, for
“Defendants' business practice of violating the
Unfair Trade Practices Act, ” interest, costs and
attorney's fees, and punitive damages against Nationwide.
(See ECF No. 1-1 at 11.)
removed the case to this Court on February 5, 2018. (ECF No.
1.) Defendants assert that the parties are diverse and the
amount in controversy exceeds $75, 000 in satisfaction of 28
U.S.C. § 1332. (See ECF No. 1 at 3-9.)
Defendants argue that although Ms. Ross is a West Virginia
citizen, her citizenship should be disregarded because she is
a nominal and fraudulently joined party. (See id. at
5-8.) Plaintiff filed the current Motion to Remand on
February 26, 2018, in which he asserts that this Court lacks
diversity jurisdiction over the matter because Ms. Ross is a
West Virginia citizen and was not fraudulently joined.
(See ECF No. 10 at 3-7.) Defendant Nationwide
responded to the motion on March 12, 2018, (ECF No. 15), and
Plaintiff filed his reply brief on March 19, 2018, (ECF No.
17). Defendant Nationwide Adjusters filed the current Motion
to Dismiss Count III on February 12, 2018, (ECF No. 4),
asserting that Plaintiff has failed to allege sufficient
facts against any of the Nationwide Adjusters to support a
claim under the Unfair Trade Practices Act. (See ECF
No. 5 at 1.) Plaintiff responded to the motion on February
26, 2018, (ECF No. 11), and Defendant Nationwide Adjusters
filed their reply brief on March 5, 2018, (ECF No. 13). As
such, these motions are fully briefed and ripe for
III of the United States Constitution provides, in pertinent
part, that “[t]he judicial Power shall extend . . . to
Controversies . . . between Citizens of different
States.” U.S. Const. art. III, § 2. “The
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C.
provided a right to remove a case from state to federal court
under 28 U.S.C. § 1441. This statute states, in relevant
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a state court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). Because removal of civil cases from
state to federal court infringes state sovereignty, federal
courts strictly construe the removal statute and resolve all
doubts in favor of remanding cases to state court. See
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
109 (1941); see also Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because
removal jurisdiction raises significant federalism concerns,
we must strictly construe removal jurisdiction.”
(citation omitted)). The party asserting federal jurisdiction
bears the burden of proof. Landmark Corp. v. Apogee Coal
Co., 945 F.Supp. 932, 935 (S.D. W.Va. 1996). In
evaluating a party's claim to federal jurisdiction, a
court should look toward the circumstances as they existed at
the time the notice of removal was filed. See Dennison v.
Carolina Payday Loans, Inc., 549 F.3d 941, 943
(4th Cir. 2008) (“[F]ederal jurisdiction . . . is fixed
at the time the . . . notice of removal is filed.”
Supreme Court has long “read the statutory formulation
‘between . . . citizens of different States'”
in Section 1332(a)(1) “to require complete diversity
between all plaintiffs and all defendants.” Lincoln
Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (citing
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
“[T]he ‘complete diversity' rule clarifies
that the statute authorizing diversity jurisdiction over
civil actions between a citizen of a state where the suit is
brought and a citizen of another state permits jurisdiction
only when no party shares common citizenship with any party
on the other side.” Mayes v. Rapoport, 198
F.3d 457, 461 (4th Cir. 1999) (citation omitted). “This
. . . rule . . . makes it difficult for a defendant to remove
a case if a nondiverse defendant has been party to the suit
prior to removal.” Id.
are, however, certain limited exceptions to the complete
diversity requirement.” Mansfield v. Vanderbilt
Mortg. & Fin., Inc., 29 F.Supp.3d 645, 651 (E.D.
N.C. 2014). One exception to the complete diversity
requirement is fraudulent joinder. The Fourth Circuit lays a
“heavy burden” upon a defendant claiming
fraudulent joinder. Johnson v. Am. Towers, LLC, 781
F.3d 693, 704 (4th Cir. 2015) (quoting Hartley v. CSX
Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999)).
“The removing party must show either ‘outright
fraud in the plaintiff's pleading of jurisdictional facts
or that there is no ...