United States District Court, N.D. West Virginia
RAYMOND A. HINERMAN, Plaintiff,
JEFFREY JUMBA and STATE FARM FIRE & CASUALTY COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO REMAND
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
plaintiff, Raymond A. Hinerman (“Hinerman”),
originally filed his complaint in the Circuit Court of
Hancock County, West Virginia, against the defendants,
Jeffrey Jumba (“Jumba”) and State Farm Fire &
Casualty Company (“State Farm”). ECF No. 1 at 1.
Defendant State Farm removed the case to this Court citing
diversity jurisdiction. Id. The plaintiff then filed
a motion to remand. ECF No. 5. The parties filed a joint
motion for extension of time to file and serve memoranda
regarding plaintiff's motion to remand. ECF No. 7. This
Court granted the joint motion for such an extension. ECF No.
9. The defendant then filed a response in opposition to
plaintiff's motion to remand. ECF No. 15. The plaintiff
filed a reply to the defendant's response. ECF No. 17.
For the reasons set forth below, plaintiff's motion to
remand (ECF No. 5) is denied.
Hinerman and his wife allegedly purchased and maintained an
insurance contract from State Farm, which specifically
provided underinsured motorist coverage. ECF No. 1-1 at 3-4.
The plaintiff alleges in his complaint that on or about April
17, 2011, the plaintiff's wife was traveling westbound on
SR 22 in Allegheny County, Pennsylvania in a construction
zone when defendant Jumba, who was also traveling westbound
on SR 22, struck the plaintiff's vehicle on the left
side. ECF No. 1-1 at 4. The plaintiff further alleges that,
on the date of the accident, his wife was the registered
owner and operator of the car at issue and that the plaintiff
was a passenger. Id. The plaintiff then alleges that
defendant Jumba was negligent and careless in: (1) failing to
maintain control of the vehicle he was operating; (2) failing
to drive at a safe and appropriate speed given the
circumstances and conditions within the construction zone;
(3) failing to keep a proper lookout for surrounding traffic
conditions; (4) exceeding the posted speed limit for the
construction area in question; and (5) failing to exercise
due and proper reasonable care required under the
circumstances. Id. at 4-5. Plaintiff Hinerman
asserts that as a direct and proximate result of the
collision, he sustained injuries to his neck, shoulder, back,
and other parts of his body, and was forced to undergo
multiple back surgeries and other medical treatment.
Id. at 5. The complaint alleges that plaintiff
Hinerman has incurred: (1) medical expenses in excess of
$184, 000.00 and will incur additional medical expenses in
the future as his injuries are permanent in nature; (2)
significant lost wages in an undetermined amount, and will
suffer a loss of earning capacity in the future, as a result
of his permanent injuries. Id. The plaintiff also
alleges that he suffered mental anguish, emotional distress,
physical pain and suffering, loss of enjoyment of life, and
other bodily injuries, and that he will continue to suffer
due to the permanent nature of those injuries. Id.
at 5-6. Moreover, the plaintiff asserts that defendant Jumba
is an underinsured motorist; and therefore, plaintiff
Hinerman is seeking underinsured motorist coverage benefits
from State Farm. Id. at 5.
defendant removed this civil action to this Court on November
20, 2018. ECF No. 1. In the notice of removal, the defendant
asserts that this Court has jurisdiction over the matter
pursuant to 28 U.S.C. § 1332 because the parties are of
diverse citizenship and the amount in controversy exceeds
$75, 000.00, exclusive of interest and costs. ECF No. 1 at
2-4. The defendant states that there is complete diversity
because the plaintiff is a citizen of West Virginia,
defendant Jumba is a citizen of Pennsylvania, and State Farm
is an Illinois corporation with its principal place of
business in Illinois. Id. at 3. The defendant states
that the amount in controversy exceeds $75, 000.00, exclusive
of interest and costs, based on the plaintiff's
allegations as pled in the complaint. Id. at 6.
plaintiff then filed a motion to remand, in which he argues
that defendant State Farm has failed to satisfy its burden of
proving complete diversity of citizenship. ECF No. 5 at 2.
The plaintiff argues that the action is a “direct
action, ” within the meaning of 28 U.S.C. §
1332(c)(1), against State Farm. Id., ECF No. 6 at
3-6. The plaintiff contends that “[a]s such, the
plaintiff and State Farm are not diverse, removal is
improper, and this matter should be remanded[.]”
Id. (emphasis omitted). Moreover, plaintiff Hinerman
asserts that the “rule of unanimity” requires all
defendants to consent to removal; however, defendant Jumba,
an indispensable party, has not consented to or joined in the
removal of the matter. ECF No. 5 at 3, ECF No. 6 at 6-10.
Plaintiff Hinerman concludes that because there is not
complete diversity, and because the defendants did not
strictly comply with the rule of unanimity, removal is
improper, and remand should be granted. ECF No. 5. at 5, ECF
No. 6 at 10.
defendant filed a response in opposition to plaintiff's
motion to remand first arguing that the “direct
action” provision does not apply to plaintiff's
underinsured motorist claim against State Farm. ECF No. 15 at
1-2. The defendant cites Etchison v. Westfield Ins.
Co., 2005 U.S. Dist. LEXIS 27553, 2005 WL 2740607 (N.D.
W.Va. Oct. 24, 2005), among other cases, for support that
since the plaintiff is not suing the tortfeasor's
insurance carrier directly, but is suing his own insurance
company, this is not a tort claim in which State Farm stands
in the shoes of the tortfeasor. Id. at 3-7. In
addition, the defendant State Farm alleges that plaintiff
Hinerman's underinsured motorist claim is not a policy or
contract of liability insurance, but rather is a claim to
recover uninsured motorist benefits under his own policy.
Id. at 7. Accordingly, defendant State Farm
concludes, plaintiff Hinerman may not invoke §
1332(c)(1)(a)'s “direct action” provision.
Id. at 7-9. Defendant State Farm further asserts
that the “nominal party” exception to the rule of
unanimity applies to defendant Jumba, and that therefore, his
consent was not required for removal to this Court.
Id. at 9. Specifically, defendant State Farm alleges
that defendant Jumba is a nominal party because plaintiff
Hinerman gave him a full and complete release and covenant
not to execute, including plaintiff Hinerman's dismissal
of all claims asserted against defendant in a Pennsylvania
litigation that arose from the same vehicle accident that
gave rise to the claims brought in this civil action.
Id. at 10. Thus, the defendant concludes that
defendant Jumba has no stake in this litigation and is joined
only in name. Id. In summary, defendant State Farm
concludes that there is complete diversity and that defendant
Jumba's consent was not necessary; therefore, remand
would be improper. Id. at 18.
plaintiff filed a reply to defendant's response arguing
that: (1) the “direct action” provision applies
to this case, and (2) defendant Jumba, who is not a nominal
party, did not consent in removal. ECF No. 17 at 1-2. The
plaintiff admits that plaintiff's interpretation of
“direct action” does not find significant support
in federal district courts; however, plaintiff argues that
“citizenship has taken on a broader definition over the
years for purposes of diversity jurisdiction, and that
plaintiff's action against State Farm should be
considered a [‘]direct action['] for diversity
jurisdiction purposes given the unique and limited nature of
the action, and by a plain reading, falls completely within
the language of [28 U.S.C.] § 1332(c).”
Id. at 5. Plaintiff Hinerman further argues that the
policy of insurance at issue is “liability insurance,
” within the context of 28 U.S.C. § 1332(c)(1)(a),
citing plaintiff Hinerman's policy coverage and West
Virginia Code § 33-1-10(e)(2). Id. at 5-6.
Moreover, the plaintiff asserts that defendant Jumba is not
nominal because this civil action attempts to recover
underinsured benefits, and that in order to do so plaintiff
seeks to obtain a judgment against defendant Jumba, whose
acts or omissions are integral to State Farm's liability.
Id. at 8-11. Therefore, the plaintiff concludes that
remand is proper since State Farm has not satisfied its
burden of proof regarding diversity jurisdiction.
Id. at 11.
defendant may remove a case from state court to a federal
court with original jurisdiction. 28 U.S.C. § 1441.
Under 28 U.S.C. § 1332(a), district courts have original
jurisdiction where the dispute is between citizens of
different states and the amount in controversy exceeds $75,
000.00, exclusive of interest and costs. The parties must be
completely diverse, meaning that “the citizenship of
each plaintiff must be different from the citizenship of each
defendant.” Hoschar v. Appalachian Power Co.,
739 F.3d 163, 170 (4th Cir. 2014). Diversity is
“assessed at the time the action is filed.”
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S.
426, 428 (1991).
party seeking removal bears the burden of establishing
federal jurisdiction. See In re Blackwater Security
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006). When
removal is challenged, the defendant must establish
jurisdiction by a preponderance of the evidence. Strawn
v. AT&T Mobility LLC, 530 F.3d 293, 297-98 (4th Cir.
2008). Further, this Court must strictly construe its removal
jurisdiction and remand if federal jurisdiction is doubtful.
Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th
Cir. 1999). However, courts are not required “to leave
common sense behind” when determining the amount in
controversy. Mullens v. Harry's Mobile Homes,
861 F.Supp. 22, 24 (S.D. W.Va. 1994). When the amount in
controversy is not apparent on the face of the
plaintiff's complaint, the court must attempt to
ascertain the amount in controversy by considering the
plaintiff's cause of action as alleged, the notice of
removal, and any other relevant materials in the record at
the time of removal. 14C Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 3725.1
(4th ed. 2013). Typically, removal jurisdiction should be
evaluated based solely on the filings available when the
notice of removal was filed. Tamburin v. Hawkins,
No. 5:12CV79, 2013 WL 588739, *1 (N.D. W.Va. Feb. 13, 2013)
(citing Chase v. Shop ‘N Save Warehouse Foods,
Inc., 110 F.3d 424, 428 (7th Cir. 1997)). However, it
may be proper for the court to consider other evidence in the
record where the amount in controversy is not readily
ascertainable from the pleadings. See Wright &
Miller, supra § 3725.1; Mullins, 861
F.Supp. at 23.
is no dispute in this civil action that the amount in
controversy exceeds $75, 000.00, exclusive of interest and
costs. The main issues pertain to: (1) whether the
“direct action” provision applies to this case,
and, therefore, § 1332(c)(1)'s residency
determination for direct action suits apply and (2) whether
defendant Jumba must consent in removal. This Court addresses
those issues below.
The “direct action” provision of 28 U.S.C.
§ 1332(c)(1) does not apply to plaintiff's
underinsured motorist ...