Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McDowell v. All State Vehicle

United States District Court, S.D. West Virginia, Charleston Division

December 11, 2019

DAMON MCDOWELL, et al., Plaintiffs,



         Pending before the court is Plaintiffs' Motion to Remand [ECF No. 9]. For the reasons that follow, the Plaintiffs' Motion is GRANTED.

         I. Background

         Damon McDowell, Mary McDowell, and Deanna Lawson (“Plaintiffs”) originally filed this action in the Circuit Court of Fayette County, West Virginia, seeking to recover for a fire loss against Allstate Vehicle and Property Insurance Company (“Allstate”) and Patrick O. Hambrick, Jr. (“Hambrick”), doing business as Heritage Insurance Agency, an agent of Allstate. Plaintiffs are all residents of Fayette County, West Virginia. Defendant Allstate is an Illinois Corporation with its principal place of business in Illinois. Defendant Hambrick is a resident of Fayette County, West Virginia.

         According to the complaint, Defendant Hambrick solicited Plaintiff Damon McDowell to purchase insurance with Allstate for Plaintiffs' residence at 219 Highland Avenue, Oak Hill, West Virginia. McDowell alleges Hambrick knew that McDowell was doing construction work on the property. Yet, the complaint alleges that Hambrick prepared an insurance application for McDowell requiring occupancy within 30 days, violating the New York standard fire policy which is required by W.Va. Code § 33-17-2. Plaintiffs allege that “Mr. Hambrick prepared his own specific proposal and made no mention of occupancy within any specific period of time.” Mot. Remand [ECF No. 9] ¶ 7. After Plaintiffs' home was destroyed by fire, Plaintiffs allege the defendants wrongly voided their insurance policy because Plaintiffs' application represented the property would be occupied within 30 days. Based on these and other allegations, Plaintiffs allege a breach of contract claim in Count I and fraud and West Virginia Unfair Trade Practices Act (“WVUTPA”) violations in Count II.

         The defendants removed this action on October 11, 2019 under diversity jurisdiction alleging Hambrick was fraudulently joined. Plaintiffs filed a motion to remand on October 23, 2019.

         II. Legal Standard

         Diversity jurisdiction exists where the amount in controversy exceeds $75, 000 and no plaintiff is a citizen of the same state as any defendant. Lincoln Property Co. v. Roche, 546 U.S. 81, 84 (2005). Diversity jurisdiction requires “complete diversity” of citizenship between the parties to a controversy. 28 U.S.C. § 1332. As such, no party involved in a diversity suit may share citizenship with an opposing party. Id.

         On the face of Plaintiffs' complaint, complete diversity of citizenship is lacking because Plaintiffs and Defendant Hambrick are all citizens of West Virginia. However, the judicially created “fraudulent joinder” doctrine provides an exception to the complete diversity requirement, allowing a district court to assume jurisdiction even if there are nondiverse defendants at the time of removal. Marshall v. Manvile Sales Corp., 6 F.3d 229, 232-33 (4th Cir.1993). A finding of fraudulent joinder “permits a district court to disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999).

         To show that a nondiverse defendant has been fraudulently joined:

the removing party must establish either: that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts.

Id. at 464 (emphasis added). Accordingly, the removing party bears a heavy burden, as it “must show that the plaintiff cannot establish a claim against the nondiverse defendant even after resolving all issues of fact and law in the plaintiff's favor.” Marshal, 6 F.3d at 232-33. The fraudulent joinder standard “is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Mayes, 198 F.3d at 464 (quoting Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999)). “[T]here need be only a slight possibility of a right to relief. Once the court identifies this glimmer of hope for the plaintiff, the jurisdictional inquiry ends.” Hartley, 187 F.3d at 426. Courts should “resolve all doubts about the propriety of removal in favor of retained state court jurisdiction.” Id.

         III. Discussion

         There is no dispute as to the amount in controversy. The only dispute is whether Mr. Hambrick was fraudulently joined, thereby defeating diversity. The court need only examine Plaintiffs' WVUTPA ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.